author: O’Connell, J.

text:
    Martin H. Factor v. Fallbrook, Inc., et al.
    (9397)
    O’Connell, Norcott and Heiman, Js.

      Argued April 30
    decision released July 2, 1991

      Bruce A. Fontanella, for the appellant (plaintiff).

      Ahmed A. Dadi, pro se, the appellee (defendant).
   O’Connell, J.

This is a mortgage foreclosure action in which the plaintiff appeals from the denial of his motion for a deficiency judgment. The sole issue is whether a deficiency judgment is barred in this case by General Statutes § 49-1. We reverse the judgment of the trial court.

The following facts are dispositive of this appeal. The plaintiff foreclosed a second mortgage on real estate owned by the defendant Fallbrook, Inc. (Factor foreclosure). The defendant Ahmed A. Dadi, president of Fallbrook, Inc., was impleaded because he had signed the mortgage note in his individual capacity. Dadi is the sole appellant and is referred to hereafter as the defendant. On November 21,1989, a judgment of strict foreclosure was rendered and law days were assigned. If the defendant did not redeem on his assigned law day, title to the premises would have vested in the plaintiff on April 3, 1990. Prior to that date, however, United Credit Corporation, the holder of a first mortgage on the property, commenced its own foreclosure action in which law days were assigned starting January 3, 1990 (United Credit foreclosure). When no one redeemed, title vested in United Credit before the date of the first law day set for redemption in the Factor foreclosure.

Within thirty days of the time limited for redemption in the Factor foreclosure, the plaintiff moved for a deficiency judgment claiming that because title had passed to the first mortgagee he gained no interest in the property as a result of his own foreclosure action and, therefore, his mortgage debt remained fully unsatisfied. The defendant argued that § 49-1 bars further action on the mortgage debt, and, therefore, the plaintiff was not entitled to a deficiency judgment. The trial court agreed with the defendant and denied the plaintiffs motion. The plaintiff appealed from that decision.

Historically, a foreclosure proceeding was an absolute bar to further action on the mortgage debt. In M’Ewen v. Welles, 1 Root 202, 203 (1790), the Supreme Court enunciated that “[i]f [the mortgagee] choose[s] to take the land and to make it his own absolutely, whereby the mortgagor is totally divested of his equity of redemption, the debt is thereby paid and discharged: And if it eventually proves insufficient to raise the sum due, it is the mortgagee’s own fault, and at his risk.” Starting in 1835, a succession of statutes established a mortgagee’s right to a judgment for the deficiency when the value of the property proves inadequate to satisfy the mortgage debt in full. “Since the entry of a judgment of foreclosure precludes any further common law proceedings upon the note, the legislatively created remedy of the deficiency judgment is the only available means of satisfying a mortgage debt when the security is inadequate to make the plaintiff whole.” D. Caron, Connecticut Foreclosures (2d Ed.) § 9.05A, pp. 157-58; see Eichman v. J & J Building Co., 216 Conn. 443, 448, 582 A.2d 182 (1990); First Bank v. Simpson, 199 Conn. 368, 370-72, 507 A.2d 997 (1986). The Simpson court articulated that “[u]nder General Statutes § 49-1, a judgment of strict foreclosure extinguishes all rights of the foreclosing mortgagee on the underlying note, except those enforceable through the use of the deficiency judgment procedure delineated in General Statutes § 49-14.” First Bank v. Simpson, supra, 370.

The trial court relied on Simpson in ruling that the § 49-1 bar applies only to a foreclosing mortgagee and that it does not affect the rights of a subsequent encumbrancer to pursue its remedies on the underlying obligation. Id., 377. This is a correct statement of the law but the proposition is inapposite to the facts of the present case. With respect to the United Credit foreclosure, the plaintiff was a subsequent encumbrancer and thus could not pursue a deficiency judgment in that action. The matter before the trial court in this case, however, was not the United Credit foreclosure but the Factor foreclosure. In the Factor foreclosure, the plaintiff was not a subsequent encumbrancer but was a foreclosing mortgagee and had all the rights and liabilities attached to that status. Thus, he was entitled to a deficiency judgment but was barred from pursuing any other action on the mortgage debt. As a foreclosing mortgagee, the only avenue available to him to satisfy the debt was a timely motion for a deficiency judgment.

There is no merit to the defendant’s contention that the plaintiff lost his deficiency judgment rights in the Factor foreclosure because he did not redeem the property in the United Credit foreclosure. Nor is there merit to his argument that the plaintiff’s motion for a deficiency judgment had to be filed within thirty days after title became absolute in the United Credit foreclosure. The plaintiff filed his motion within thirty days of the time limited for redemption in the Factor foreclosure and that was sufficient. His motion for a deficiency judgment, therefore, should not have been denied.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       General Statutes § 49-1 provides in pertinent part that ‘ ‘[t]he foreclosure of a mortgage is a bar to any further action upon the mortgage debt, note or obligation against the person or persons who are liable for payment thereof who are made parties to the foreclosure and also against any person or persons upon whom service of process to constitute an action in personam could have been made within this state at the commencement of the foreclosure . . . .” (Emphasis added.)

       See General Statutes (1835 Rev.) tit. 31, c. 4; Public Acts 1878, c. 129; General Statutes (1888 Rev.) §§ 3010, 3011; General Statutes (1902 Rev.) §§ 4123, 4124; General Statutes (1930 Rev.) §§ 5080, 5083; General Statutes (1949 Rev.) § 7191; Public Acts 1957, No. 443; Public Acts 1979, No. 79-602; Wilcox v. Bliss, 116 Conn. 329, 332, 164 A. 659 (1933).

       General Statutes § 49-14 (a) provides: “At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. Such motion shall be placed on the short calendar for an evidentiary hearing. Such hearing shall be held not less than fifteen days following the filing of the motion, except as the court may otherwise order. At such hearing the court shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiffs claim. The plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment.”


source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    Linda M. Peters et al. v. Environmental Protection Board of the City of Stamford et al.
    (9562)
    O’Connell, Foti and Heiman, Js.
    Argued April 25
    decision released July 2, 1991

      James V. Minor, assistant corporation counsel, with whom were Mary Margaret Pitt and, on the brief, Paul D. Shapero, corporation counsel, and Mary E. Sommer, former corporation counsel, for the appellant (named defendant).

      Joseph J. Tooher, Jr., for the appellees (plaintiffs).
   Heiman, J.

The defendant environmental protection board of the city of Stamford (board) appeals from the judgment of the trial court sustaining the plaintiffs’ challenge to the board’s decision to issue a permit to Transcon Builders, Inc. (Transcon), for the construction of a 120 bed nursing home within regulated wetlands and known floodplain areas. We affirm the judgment of the trial court.

The trial court found the following facts in its well reasoned decision. The property in question is a 4.75 acre parcel of land located at 947 Stillwater Road, Stamford. Stillwater Road is two and one-half miles long. It lies within an R-20 zone, where nursing homes are allowed by way of special exception. The site of the proposed nursing home currently has a single-family residence on it and is used as a working farm and produce market known as Hettling’s Farm. The property is bounded by the Rippowam River and is characterized by upland slopes, regulated soils, and broad floodplain areas. The wetland soil comprises 53 percent of the site.

In November, 1988, Transcon filed application number 8843 seeking a permit from the defendant board for “deposition of material, removal of material, alteration, construction and obstruction” of the wetland soil area in order to construct “drives, parking, trails, landscaping, building piers and utilities” within the regulated area where it planned to build a 120 bed nursing home.

On December 15, 1988, the board voted to accept Transcon’s application. On January 26,1989, the board determined that the proposed construction may have a significant impact on the regulated area, issued a plenary ruling, requested additional information and scheduled a public hearing for February 16, 1988.

Notice of the public hearing was published in the Stamford Advocate on February 3,1989, and again on February 13,1989. Notice of Transcon’s application to the board, and of the public hearing date, was sent by certified mail to those property owners whose land is located within 500 to 1000 feet upstream and downstream from the location. Additional people interested in the application were notified by regular mail on February 1, 1989.

Extensive testimony was presented at the February 16 public hearing in support of and in opposition to Transcon’s application. The public hearing was continued to February 23,1989, to allow Transcon to provide additional plans and supporting documentation. The board approved Transcon’s application with twenty-three conditions. Notice of the board’s conditional approval was published in the Stamford Advocate on March 21, 1989.

The plaintiffs appealed the board’s decision to the Superior Court pursuant to General Statutes § 22a-43. The trial court sustained the plaintiffs’ appeal, finding that the board’s published notice of the public hearing did not satisfy the statutory notice requirements because it had failed to describe the subject property by metes and bounds, by a specific address, or by making reference to any nearby streets or intersections. The trial court held that because of the defective notice the board was without the requisite jurisdiction.

The dispositive issue raised by the defendant board in its appeal to this court is whether the notice of the public hearing that was published in the Stamford Advocate on February 3 and February 13,1989, satisfied the statutory notice requirements set out in General Statutes § 22a-42a (c).

The published notice set forth in pertinent part: “The Stamford Environmental Protection Board . . . will hold a public hearing to consider information relevant to Application # 8843. Transcon Builders, Inc., for activities on Stillwater Road.” The notice did not list the specific street address of the subject property, its current owner, its size or dimensions, or its location with respect to the nearest intersecting street. The defendant claims that although the subject property was not specifically identified in the notice, it met the statutory requirements of § 22a-42a (c) because (1) the notice referred to the application number and the application, which was a public record, contained the street address of the property, and (2) the world at large had been notified of Transcon’s connection with the property by ten articles that had been published in area newspapers in 1988 and 1989. The defendant also claims that the trial court improperly put the burden of proving the sufficiency of the notice on the defendant board.

General Statutes § 22a-42a (c) provides that “[njotice of the hearing shall be published at least twice at intervals of not less than two days, the first not more than fifteen days and not fewer than ten days, and the last not less than two days before the date set for the hearing in a newspaper having a general circulation in each town where the affected wetland and watercourse, or any part thereof, is located.” To date, this notice requirement has not been analyzed in our case law. General Statutes § 8-3 has a notice requirement similar to that found in § 22a-42a (c), however, and has been clearly defined by our courts. Because both statutes deal with the duty of a local land use agency to notify the general public of proposed changes in land use, and they are similarly worded, we will rely on the body of legal precedent that has evolved from § 8-3. Cf. Demur v. Open Space & Conservation Commission, 211 Conn. 416, 425, 559 A.2d 1103 (1989).

Compliance with statutorily prescribed notice requirements is a prerequisite to a valid action by a land use commission and failure to give proper notice constitutes a jurisdictional defect. Wright v. Zoning Board of Appeals, 174 Conn. 488, 491, 391 A.2d 146 (1978). The primary reason for requiring notice is to advise all affected parties of their opportunity to be heard and to be appraised of the relief sought. Id. Adequate notice enables parties-who have an interest in the subject property to know what is projected and to have an opportunity to protest. Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 47, 301 A.2d 244 (1972). Constructive, rather than actual, notice is required so that as much of the populace as possible is constructively notified of the proposed action. Id. A defect in the content of the notice cannot be cured by proof that some members of the public received actual notice, or appeared at the hearing. Cocivi v. Plan & Zoning Commission, 20 Conn. App. 705, 708, 570 A.2d 226, cert. denied, 214 Conn. 808, 573 A.2d 319 (1990). Before this court can conclude that any action taken by the board is valid, the notice provision must be complied with fully. Slagle v. Zoning Board of Appeals, 144 Conn. 690, 693, 137 A.2d 542 (1957).

We conclude that the published notice in this case was clearly inadequate. By omitting the specific location of the proposed nursing home, the board issued a defective notice. Referring to the subject property by street name only in a legal notice does not suffice to apprise as much of the populace as possible of the proposed construction. This is particularly so in a case like this where the applicant is not the owner of the subject property and the landowner was never mentioned in the notice, and where the applicant had considered an alternate five acre site on the same street as that set out in the notice.

In addition, we are unpersuaded by the defendant’s argument that the general public should have cross-referenced the application number with city hall records, or that earlier newspaper articles had connected the property to Transcon. The statute does not call for cumulative notice, nor does it ask that the general public employ the skills of a research librarian to determine where the subject property is located. The act of giving statutory notice is much too important to be done by way of informal, unofficial or chancy cross-referencing. Compliance with notice requirements that have been set down by a formal statutory prescription is an essential component to the effectiveness of a board’s actions. When a published notice is lacking, something “just as good” usually will not do. See 1M. Merrill, Notice § 498, nn.19, 20.

We conclude, therefore, that the action of the board in conditionally granting Transcon’s application is null and void. See Jarvis Acres, Inc. v. Zoning Commission, supra, 44. Any other interpretation would permit the board to act on special exceptions and other specific matters in private without notice to the general public, depriving interested parties of the right to be heard.

The defendant’s final claim is that the trial court improperly placed the burden of proving the sufficiency of the notice on it. To support this claim, it points to that portion of the memorandum of decision that states that “ ‘[t]he law is clear that failure to give proper notice of a hearing constitutes a jurisdictional defect, results in a lack of due process and renders the action of the commission granting the zone change null and void.’ Jarvis Acres, Inc. v. Zoning Commission, [supra]. “ ‘Due process of law requires . . . that there be due notice of the hearing . . . .” ’ Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 536, [525 A.2d 940] (1987).”

The defendant’s claim correctly states that the burden of proving that the notice was defective rests on the persons asserting its insufficiency. Huck v. Inland Wetlands & Watercourses Agency, supra, 537. See also T. Byrne, Connecticut Zoning Boards of Appeal (5th Ed.), p. 102. It overlooks, however, the fact that it was the plaintiffs’ appeal to the Superior Court that brought the question of the sufficiency of the notice before the court, and that when the court rendered its judgment it stated that it was sustaining the plaintiffs’ claims that notice was inadequate and that the inadequacy constituted a jurisdictional defect. Thus, the trial court properly viewed the plaintiffs’ claim and found that they had sustained their burden of proving that the notice was inadequate.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs named the following defendants in their appeal to the Superior Court: the environmental protection board of Stamford; the Stamford city clerk, Louis L. Pont Briant; the commissioner of the Connecticut department of environmental protection, Leslie Carothers; Transcon Builders, Inc.; and Karl Hettling, Jr. The environmental protection board of Stamford was the only defendant to pursue an appeal of the trial court’s decision to this court and is, therefore, referred to as the sole defendant in this opinion.

       The trial court found that the following parties are aggrieved by the board’s decision: Linda M. Peters, John Peters, Paul C. Ferrara and Janet Ferrara. These parties are referred to as the plaintiffs in this opinion.

       General Statutes § 8-3 (a) provides in pertinent part: “Notice of the time and place of such hearing shall be published in the form of a legal advertisement appearing in a newspaper having a substantial circulation in such municipality at least twice at intervals of not less than two days, the first not more than fifteen days nor less than ten days, and the last not less than two days, before such hearing . . .

       Relying on these earlier newspaper articles presents two additional problems. First, there is no indication that they were published within the statutorily mandated time frame. Second, notice by a mere volunteer or stranger is ineffective. T. Byrne, Connecticut Zoning Boards of Appeal (5th Ed.), pp. 38-39.


author: Landau, J.

text:
    State of Connecticut v. Jasper McFadden
    (9022)
    Daly, Nokcott and Landau, Js.
    Argued January 15
    decision released July 2, 1991

      Jeremiah Donovan, special public defender, for the appellant (defendant).

      Susann E. Gill, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Kevin McMahon, assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant appeals the trial court’s judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1). The defendant claims that (1) the trial court improperly failed to charge the jury that it had to agree unanimously which of four objects was the “dangerous instrument” used by the defendant in his assault on the victim, and (2) he was deprived of a fair and unbiased jury due to the combined effect of the court’s jury instruction that the jury was to serve “as an arm of the court” and of the prosecutor’s highly personal style of advocacy.

From the evidence adduced at trial, the jury reasonably could have found the following facts. On February 2,1989, a correction officer was escorting inmates at the Morgan Street detention center in Hartford from the cafeteria to a holding area. After four or five inmates had entered the holding area, the officer heard a commotion and saw the defendant, whom he knew, punch the victim two times in the face and once in the chest, knocking him to the floor. While the victim was on the floor, the defendant kicked him in the head, spinning him halfway around. The defendant then stomped on the victim with his shod foot pushing him against the concrete floor. During this incident, the defendant called the victim a “snitch.”

The defendant was charged, by a substitute information in one count, with assault in the first degree in violation of § 53a-59. The information specifies that the defendant, in violation of § 53a-59 (a) (1), “acting with the intent to seriously injure [the victim] did first punch him defenseless and then using his feet, footwear and the hard cement floor, stomped the victim to the point that he received serious physical injury ...” and, in violation of § 53a-59 (a) (3), “did hit and stomp in a manner that evinced an extreme indifference for the life of [the victim] and his conduct created a risk of death to [the victim] and thereby caused serious physical injury to [the victim].” The jury convicted the defendant of assault in the first degree by means of a dangerous instrument, § 53a-59 (a) (1).

The defendant first claims that the dangerous instrument involved in this case was never specifically identified in the information or at trial, and, therefore, the jury could not have agreed unanimously on which object, the defendant’s fist, his foot, his footwear, or the floor, was the dangerous instrument. The defendant further asserts that the court should have instructed the jury that it had to agree unanimously which object was the dangerous instrument involved, and that the court’s failure to give such a unanimity charge deprived him of a unanimous verdict as guaranteed under the sixth amendment to the United States constitution, article first, §§ 8 and 19 of the Connecticut constitution, and Practice Book § 867.

Although the defendant failed to preserve this claim for appellate review either by requesting a specific unanimity instruction or by taking an exception to the court’s instruction, this claim is reviewable under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), because it implicates the defendant’s right to a unanimous verdict and a fair trial. State v. John, 210 Conn. 652, 690, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); State v. Suggs, 209 Conn. 733, 761, 553 A.2d 1110 (1989).

“The sixth amendment to the United States constitution guarantees criminal defendants charged with committing nonpetty offenses the right to a unanimous verdict when the jury consists of six members. Burch v. Louisiana, 441 U.S. 130, 138, 99 S. Ct. 1623, 60 L. Ed. 2d 96 (1979); State v. Bailey, 209 Conn. 322, 332, 551 A.2d 1206 (1988); State v. Benite, 6 Conn. App. 667, 671, 507 A.2d 478 (1986); see Practice Book § 867.” State v. Ostolaza, 20 Conn. App. 40, 50, 564 A.2d 324 (1989). In accordance with this unanimity requirement, the jurors must agree on the factual basis of the offense. Id. “The rationale underlying the requirement is that a jury cannot be deemed to be unanimous if it applies inconsistent factual conclusions to alternative theories of criminal liability.” State v. Bailey, supra, 334; State v. Suggs, supra. “ ‘Where a trial court charges a jury that the commission of any one of several alternative acts would subject a defendant to criminal liability, a unanimity charge on a specific act is required only if two conditions are met: (1) the alternative acts are conceptually distinct from each other; and (2) the state has presented supporting evidence on each alternative act.’ ” (Emphasis in original.) State v. Bailey, supra; State v. John, supra, 690-91; State v. Suggs, supra. Therefore, a specific unanimity charge is not required if “the defendant’s conduct does not comprise ‘separate incidents’ implicating alternative or conceptually distinct bases of liability.” State v. John, supra, 691.

The evidence indicates that the acts that occurred were part of a “ ‘ “short continuous incident that cannot be factually separated” ’ ”; State v. Suggs, supra, 762; and, therefore, the court was not required to give a unanimity charge regarding which object was the dangerous instrument. In addition, the court properly instructed the jury that it must consider subdivisions (a) (1) and (a) (3) of § 53a-59 separately and “in order to convict him of either of these, your vote must be unanimous.” The defendant was found guilty under § 53a-59 (a) (1). The jurors thus unanimously agreed that the defendant had injured the victim by means of a dangerous instrument. Therefore, the jury reached a consistent factual conclusion that the defendant was guilty of assault in the first degree under § 53a-59 (a) (1) and not under § 53a-59 (a) (3).

The defendant next claims that he was deprived of a fair and unbiased jury because of the combined effect of the trial court’s jury instruction that the jury was to serve as “an arm of the court” and because of the prosecutor’s highly personal style of advocacy, in particular, the prosecutor’s reference to the defendant as a “hulk” and his use of the pronoun “I” in his closing argument. The defendant failed to preserve this claim and seeks review under State v. Golding, supra. Although a criminal defendant has the right to an impartial judge and an unprejudiced jury; State v. Fernandez, 198 Conn. 1, 10, 501 A.2d 1195 (1985); the defendant cannot prevail on this claim because the combined effect of these claimed errors did not deprive him of a fair trial. State v. Golding, supra, 239-40.

Where a defendant neither requests a specific instruction nor objects to the instruction that was given, reversal is warranted only if the defendant demonstrates that he was deprived of a fundamental constitutional right or that there is plain error. Practice Book § 4185; State v. Grullon, 212 Conn. 195, 211, 562 A.2d 481 (1989); State v. Preyer, 198 Conn. 190, 196-97, 502 A.2d 858 (1985). It is axiomatic that a jury charge must be read as a whole. State v. Grullon, supra, 204. In an appeal involving a constitutional question, “an attempt to assert reversible error by culling a single phrase or inaccurate statement [from the charge to the jury] must fail . . .”; State v. Ralls, 167 Conn. 408, 422, 356 A.2d 147 (1974); unless it is reasonably possible that the jury was misled. State v. Grullon, supra.

The defendant directs our attention to the following portion of the court’s jury instruction: “The state of Connecticut and its people look to you, on the other hand, as officers of the court, to deal with this case fairly, firmly, and honestly as strong-minded men and women, as with the trust placed in your hands, as an arm of the court, to aid and uphold the law of the land by rendering a verdict of guilty if the facts and the law requires such a verdict.” The defendant claims that this is a clarion call to do one’s duty in a war on crime and instructs the jurors to act as sheriffs or probation officers rather than as finders of fact. We do not agree.

A review of the charge in its entirety reveals that the court thoroughly instructed the jury as to the function of the court and the separate and distinct function of the jury to consider the evidence and to decide the question of the defendant’s guilt or innocence. The court thoroughly informed the jury of the defendant’s presumed innocence, the state’s burden of proof and the state’s aversion to convicting innocent people. The charge also clearly instructed the jurors to disregard any evidence of the defendant’s past crimes that was admitted only to impeach his credibility, and to focus solely on the defendant’s guilt or innocence and not the possible punishment. Viewing the charge as a whole, we find that there is no reasonable possibility that the jury was misled regarding its duty; State v. Grullon, supra; State v. Williams, 182 Conn. 262, 268, 438 A.2d 80 (1980). The jury charge neither deprived the defendant of a fair trial nor constituted plain error.

With regard to the defendant’s claim of prosecutorial misconduct during closing argument, this claim, on its own, does not warrant Golding review because “ ‘the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial’ . . . .” State v. Watlington, 216 Conn. 188, 193, 579 A.2d 490 (1990); State v. Somerville, 214 Conn. 378, 393, 572 A.2d 944 (1990).

The combined effect of the challenged instruction and the prosecutor’s conduct, therefore, did not deprive the defendant of a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also claims that (1) the information against him should have been dismissed because the arrest warrant did not contain the defendant’s correct address, (2) the trial court’s acceptance of a substitute information against him prior to the jury’s being sworn violated his rights, and (3) one of the state’s witnesses should not have been permitted to testify because of prior inconsistent statements. These claims were not preserved at trial, and we decline to consider them. See State v. King, 216 Conn. 585, 590, 583 A.2d 896 (1990); State v. Wilson, 178 Conn. 427, 436, 423 A.2d 72 (1979).

       General Statutes § 53a-59 provides in pertinent part: “assault in the first degree: class b felony, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or (2) with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person; or (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person.”

       A dangerous instrument is defined as “any instrument, article or substance which, under the circumstances in which it is used ... is capable of causing death or serious physical injury . . . .” General Statutes § 53a-3 (7).

       Practice Book § 867 provides in pertinent part that “[t]he verdict shall be unanimous . . . .”
      Our Supreme Court has recently reiterated our policy of declining to consider criminal state constitutional claims in the absence of an independent analysis of the state constitutional provision at issue. State v. Perez, 218 Conn. 714, 723, 591 A.2d 119 (1991). We, therefore, consider only the defendant’s federal constitutional claim.


author: Spallone, J.

text:
    Connecticut Light and Power Company v. Overlook Park Health Care, Inc., et al.
    (9505)
    Dupont, C. J., Spallone and Heiman, Js.

      Argued April 24
    decision released July 2, 1991

      Patrick J. O’Connell, with whom, on the brief, were Sarah F. Fontenot and Thomas J. Sansone, for the appellant (plaintiff).

      Lloyd S. Lowinger, for the appellees (defendant Herman Engelberg et al.).
   Spallone, J.

This appeal presents the issue of whether a nursing home falls within the definition of a “residential dwelling” within the meaning of General Statutes § 16-262e (c), which imposes liability for unpaid utility bills on the “owner, agent, lessor, or manager of a residential dwelling.” The court ruled that § 16-262e (c) does not apply to nursing homes and, accordingly, rendered judgment for the defendants Herman Engelberg and Arnold Polokoff. The plaintiff timely filed this appeal from that judgment.

The facts relevant to the issue on appeal can be stated briefly. The defendants are the owners of property that, at the times pertinent to this matter, was being operated as a nursing home. While the defendants were the owners of the premises, unpaid utility bills for electricity accrued in the amount of $24,797.77. The plaintiff brought suit to recover this past due bill from Overlook Park Health Care, Inc., as the operator of the nursing home, and from Engelberg and Polokoff as the owners of the property. Engelberg and Polokoff moved for summary judgment asserting that they were not liable for any unpaid utility bills of the nursing home merely because they were owners of the building. The plaintiff relied on § 16-262e (c) as the basis for imposing liability for unpaid utility bills on the owners of the property.

Section § 16-262e (c) provides in pertinent part that the “owner, agent, lessor, or manager of a residential dwelling shall be liable for the costs of all electricity . . . furnished by a public service company . . . .” (Emphasis added.) The term “residential dwelling” is not defined in the statute. Accordingly, we are left with the task of determining whether a nursing home is a residential dwelling within the context of this statute.

Questions of statutory interpretation ordinarily present questions of law. Plastic Distributors, Inc. v. Burns, 5 Conn. App. 219, 225, 497 A.2d 1005 (1985). The words of a statute are to be given their commonly approved meaning unless a contrary intent is clearly expressed. Although it is recognized that headings or titles of legislation are not conclusive, they may, nonetheless, be valuable aids to construction and legislative intent. Algonquin Gas Transmissions Co. v. Zoning Board of Appeals, 162 Conn. 50, 55, 291 A.2d 204 (1971). Section 16-262e is entitled: “Notice furnished tenants by utility re intended termination. Assumption by tenants of liability for future service. Liability of landlords for certain utility services. Deduction from rent.” (Emphasis added.) A tenant, as defined by statute, is a “person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others . . . .” General Statutes § 47a-l (l). The common usage expressed by the terms in the heading of § 16-262e anticipates situations in which landlords obtain monthly rents from tenants who are in the exclusive control of a dwelling unit for residential purposes.

Conversly, a nursing home is defined in General Statutes, chapter 368v, Health Care Institutions, §§ 19a-511 and 19a-521 as a licensed institution that provides, in addition to shelter, personal care, meals and nursing and medical supervision twenty-four hours a day. Also encompassed within this definition are other institutions such as hospitals and mental health facilities. Nursing home residents require a high degree of personal care and pay a total fee for all services rendered by the nursing home.

The trial court’s determination that a building designed to provide food, shelter and total health care services to clients who pay a single fee for all of these services is not within the ambit of a residential dwelling for the purposes of § 16-262e (c) is both reasonable and logical. The trial court’s conclusion that commercial health care facilities are distinguishable from residential dwellings finds support in other jurisdictions. See, e.g., Lanski v. Montealerge, 361 Mich. 44, 104 N.W.2d 772 (1960) (nursing or convalescent home a commercial activity); Gregory v. Crain, 290 Ky. 323, 161 S.W.2d 49 (1942) (twenty-four room house operated as a private hospital for the aged violated covenant of residential purposes only).

Here, the trial court, in its memorandum of decision, provided a well reasoned legal analysis of the facts and circumstances in this case and arrived at a logical and rational conclusion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Herman Engelberg and Arnold Polokoff are the only defendants who are parties to this appeal and will be referred to as “the defendants” in this opinion.


author: Foti, J.

text:
    State of Connecticut v. Andrew L. Owens
    (7073)
    (7074)
    Dupont, C. J., Noecott and Foti, Js.
    Argued March 28
    decision released July 9, 1991

      Suzanne H. Werner, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John Waddock, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgments of conviction, rendered after a jury trial, of larceny in the first degree in violation of General Statutes § 53a-122 (a) (3) and carrying a weapon in a motor vehicle in violation of General Statutes § 29-38. The defendant claims that the trial court (1) improperly instructed the jury, and (2) allowed extraneous facts to be presented to the jury that prevented it from fairly reviewing the relevant evidence. The defendant also claims that he has been deprived of meaningful appellate review of certain pretrial events because of the loss of the court reporter’s notes and the inadequate efforts to reconstruct the record. We affirm the judgments of the trial court.

The jury could reasonably have found the following facts. On June 10,1987, the defendant and other individuals accompanied Connie Sheppard, his girl friend’s sister, to Thrifty Rent-A-Car in Danbury, where Sheppard rented a maroon Chrysler New Yorker using a credit card. The rental agreement called for the return of the automobile after one week. Sheppard used the car, and on June 17 the defendant asked to borrow it for a few minutes to go to a store. The car was not returned and after four days she notified the rental agency and the Danbury police.

Acting on a separate complaint, officers of the Stratford police department apprehended the defendant for questioning and he denied knowing Sheppard or anything about the car. The defendant had been seen in the stolen vehicle by Audrey Hodgkins who later supplied information to the police that led them to a hotel in Milford. When the police arrived at the hotel, they did not find the stolen vehicle, but they did confirm that the vehicle had been there and that the defendant had checked out. Hodgkins then told police that the car was being taken to New Haven to be stripped because it was too hot in the Bridgeport area. Subsequently, the car was observed being driven in New Haven by Jean Johnson. Johnson became acquainted with the defendant when she exchanged cars with him at the request of Tyrone Harden. The defendant drove away with Harden in Johnson’s Subaru, and left the Chrysler for her to use. Approximately two days later, the two approached Johnson again and asked her to rent a room for them at the Howard Johnson hotel in New Haven. She rented a room for them in her name and gave the keys to Harden.

When the police went to the Howard Johnson’s hotel, they found neither the defendant nor the Subaru. Approximately three hours later, at 5 a.m., on July 19, 1987, the officers returned, saw the parked Subaru, and went to the room that had been rented by Johnson. The defendant was arrested for larceny in the first degree and denied being Andrew Owens, supplying the police with several aliases.

While securing the Subaru in preparation for towing, a police officer observed a bullet on the rear floor of the car. After finding that the car’s exhaust pipe was still hot, they opened the car and found two loaded weapons: a .44 caliber magnum protruding from under the driver’s side floor mat, and a .38 caliber revolver concealed underneath the passenger’s side of the front seat. The .44 caliber contained six live and two spent rounds. The .38 caliber contained four live and two spent rounds. Both revolvers were fully operable. There had been no weapons in the Subaru when Johnson lent it to the defendant.

Meanwhile, a search of the Chrysler revealed a number of live bullets in the trunk of the vehicle, including nine .44 caliber super magnums and six .38 caliber rounds, which were the same type of bullets in the handguns found in the Subaru.

I

The defendant claims that the trial court improperly instructed the jury in four ways: (1) in refusing to charge the jury as to the lesser included offense of using a motor vehicle without the owner’s permission; (2) in its instruction regarding the elements of the crime of carrying a weapon in a motor vehicle; (3) in its instructions as to consciousness of guilt; and (4) in failing to instruct the jury that as a matter of law there was insufficient evidence presented to convict the defendant of carrying a weapon in a motor vehicle.

A

The defendant claims that the court should not have refused to instruct on the offense of using a motor vehicle without the owner’s permission, General Statutes § 53a-119b, as a lesser included offense of first degree larceny.

Although the defendant did file a written request to charge, he did not set forth, as required, a complete statement of the essential facts, or any facts whatsoever, that would justify the court’s charging in the form requested. Practice Book § 854; State v. Dedrick, 24 Conn. App. 518, 523-24, 589 A.2d 1241 (1991). Accordingly, we conclude that the trial court properly refused to instruct on the lesser included offense.

In order to be entitled to a charge on a lesser included offense, a defendant must show that he has complied with the four conditions stated in State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). “The standards for the first prong of Whistnant were articulated by our Supreme Court in State v. McIntosh, 199 Conn. 155, 158-61, 506 A.2d 104 (1986). The requirement that the defendant request an appropriate instruction means that the request must be in compliance with Practice Book § 854, the pertinent portion of which states that “ ‘requests shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply.’ (Emphasis added.)” State v. Dedrick, supra, 524. A complete statement of the facts is required; State v. Killenger, 193 Conn. 48, 57, 475 A.2d 276 (1984); a request to charge that does not conform to the requirements of Practice Book § 854 and State v. Whistnant, supra, need not be given. State v. Payne, 14 Conn. App. 169, 171, 540 A.2d 87 (1988).

In view of our conclusion regarding the defendant’s request to charge, we will not consider the merits of his claim that using a motor vehicle without the permission of the owner is a lesser included offense of larceny in the first degree.

B

The defendant next claims that the court incorrectly instructed the jury as to the elements of knowledge and possession necessary for a conviction for knowing possession of an unregistered weapon in a motor vehicle.

“To determine whether an error in the charge to the jury exists, we review the entire charge to determine if, ‘taken as a whole, the charge adequately guided the jury to a correct verdict.’ State v. Fleming, 198 Conn. 255, 268-69, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986) . . . .” (Citations omitted.) State v. Grullon, 212 Conn. 195, 204, 562 A.2d 481 (1989). In appeals involving a constitutional question, the standard of review is whether it is reasonably possible that the jury was misled. State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982).

There are four elements that the state must prove in a prosecution for a violation of General Statutes § 29-38: (1) that the defendant owned, operated or accepted the vehicle; (2) that he had a weapon in the vehicle; (3) that he knew the weapon was in the vehicle; and (4) that he had no permit or registration for the weapon. State v. Delossantos, 211 Conn. 258, 273, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989). The defendant claims that the trial court improperly instructed the jury as to elements two and three of the offense, having a weapon and having knowledge of its presence. He alleges that the court gave an overly expansive definition of having a weapon without instructing the jury as to the necessity of some form of control, and permitted the jury to draw improper inferences from the defendant’s mere presence in the motor vehicle. We do not agree.

The clear intent of § 29-38 is to make it a crime to have a weapon in a motor vehicle, and “[t]he statute is not concerned with possession or ownership of a weapon, but rather aims to penalize those who know that there is a weapon inside a motor vehicle.” State v. Mebane, 17 Conn. App. 243, 246, 551 A.2d 1268, cert. denied, 210 Conn. 811, 556 A.2d 609, cert. denied, 492 U.S. 919, 109 S. Ct. 3245, 106 L. Ed. 2d 591 (1989). The defendant argues that the court did not adequately define the word “has” and should have instructed that it means having control. Because the state is not required to prove either actual or constructive possession; id., 245; it certainly is not required to prove control.

The defendant also claims that the court’s instruction as to the knowledge element of the offense was incorrect. The defendant relies on State v. Watson, 165 Conn. 577, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974). In Watson, our Supreme Court held that it was unconstitutional for the legislature to enact a provision making the mere presence of a weapon in a vehicle prima facie evidence of a violation by each occupant. The defendant argues that the court’s jury instructions in this case permitted the same inference that was struck down in Watson—that merely because the defendant was in the car, he knew about the weapons.

An examination of the charge shows that the court gave a thorough definition of knowledge and twice cautioned the jury to consider not only the presence of the weapon but the entirety of the evidence presented. The court also instructed that the inference was merely permissive and not mandatory. The instruction gave adequate guidance to the jury to allow its finding of intent to be based on all of the evidence rather than merely the presence of the guns in the vehicle. We conclude, therefore, that the court’s charge fulfilled the mandate to “ ‘be accurate in law, adapted to the issues and adequate to guide the jury in reaching a correct verdict.’ ” State v. Williams, 182 Conn. 262, 269, 438 A.2d 80 (1980).

Viewing the charge as a whole, we conclude that it is not reasonably possible that the trial court misled the jury. The trial court correctly charged the jury on the essential elements of the offense of having a weapon in a motor vehicle.

C

The defendant next contends that the trial court deprived him of his right to a fair trial because of prejudicial instructions on the issue of consciousness of guilt. It is the defendant’s position that the effect of the court’s having given specific examples of the defendant’s inconsistent statements prejudiced him so greatly that the jury could not fairly consider the evidence, and that this constituted an abuse of discretion.

It is axiomatic that a court may, in submitting a case to the jury, exercise its discretion in calling the attention of the jury to the evidence, lack of evidence, bearing on any point of evidence in issue, and may comment on the weight of the evidence, but may not direct or advise the jury how to decide the matter. The instruction should not be examined in a vacuum, but in the context of the factual issues raised at trial. State v. Kurvin, 186 Conn. 555, 558, 442 A.2d 1327 (1982).

A review of the entire challenged instruction reveals that the court simply specified those instances in which the state claimed that the defendant knowingly made false statements, but did not comment as to the weight of the evidence. The court also noted that the defendant denied making such statements. The court also clearly instructed that it was the jury’s recollection of the evidence that controlled, and that the court was not emphasizing any particular testimony. The court did not advise the jury how to resolve any issue in the case, and its instructions adequately presented the case to the jury. Viewing the charge as a whole, and considering it from the standpoint of its probable effect on the jurors in guiding them to a proper verdict in the case; State v. Anderson, 16 Conn. App. 346, 356, 547 A.2d 1368, cert. denied, 209 Conn. 828, 552 A.2d 433 (1988); we conclude that the court did not abuse its discretion and that no injustice was done.

D

The defendant claims that the court improperly refused or failed to instruct the jury that as a matter of law there was insufficient evidence that the defendant knowingly possessed the weapons in the car, and also wrongfully denied his motions for judgment of acquittal.

The issue of sufficiency of evidence and its appropriate standard of review is well established. The issue is whether, on the facts established and the reasonable inferences drawn therefrom, the jury could have reasonably concluded that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt. State v. Carpenter, 19 Conn. App. 48, 59, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989). We construe the evidence in a light most favorable to sustaining the verdict. State v. Iovieno, 14 Conn. App. 710, 713, 543 A.2d 766 (1988).

It is within the province of the jury to draw reasonable and logical inferences from the facts proven. State v. Ruth, 16 Conn. App. 148, 154, 547 A.2d 548 (1988), cert. denied, 209 Conn. 827, 552 A.2d 434 (1989).

It is not unreasonable for the jury to have found that the defendant had been in the Subaru and that a .44 caliber bullet was clearly in view on the rear floor. The jury could have inferred that he was able to see the .44 magnum revolver protruding from under the driver’s side floor mat and was able to feel one or both of the weapons under the front floor mats. The jury could also have inferred from the evidence presented that the bullets found in the Chrysler were his because they were the same type as those found in the weapons in the Subaru.

There was ample evidence from which the jury could infer that the defendant knowingly possessed a weapon in that motor vehicle.

II

The defendant seeks a reversal of the conviction because he claims that extraneous facts presented to the jury prevented it from fairly reviewing the relevant evidence. He claims that the extraneous facts resulted from a consolidation of the defendant’s two files for trial, the admission of alleged highly inflammatory evidence, and the prosecutor’s improper references to that evidence.

A

The defendant first claims that the trial court improperly granted the state’s motion to consolidate the two informations pending against him.

On December 21, 1987, the state filed and was granted a motion to consolidate for trial two files against the defendant. The first file charged larceny in the first degree dealing with allegations regarding the Chrysler, and the second file charged the weapon in a motor vehicle offense plus several drug offenses.

General Statutes § 54-57 and Practice Book § 829 expressly authorize a trial court to order a defendant to be tried jointly on charges arising separately. The court enjoys broad discretion which, absent manifest abuse, an appellate court may not disturb. State v. Greene, 209 Conn. 458, 463, 551 A.2d 1231 (1988).

“ ‘The defendant bears a heavy burden of showing that “ ‘[the granting of the motion for joinder] resulted in substantial injustice,’ and that any resulting prejudice was ‘beyond the curative power of the court’s instructions.’ ” . . .’ ” State v. Jennings, 216 Conn. 647, 657, 583 A.2d 915 (1990).

A trial court should consider several factors in determining whether severance is required including (1) whether the charges involved discrete, easily distinguishable factual scenarios, (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part, and (3) the duration and complexity of the trial. State v. Boscarino, 204 Conn. 714, 722-23, 529 A.2d 1260 (1987). “If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred.” State v. Jennings, supra, 658. The test to be applied is whether substantial injustice will result if the charges are tried together. State v. Banta, 15 Conn. App. 161, 167, 544 A.2d 1226, cert. denied, 209 Conn. 815, 816, 550 A.2d 1086 (1988). Applying these factors to the present case, we conclude that joinder or consolidation of the two files did not result in substantial injustice.

The defendant concedes that the crimes charged were not similar and, therefore, easily distinguishable and that they were not of a shocking or violent nature. As to the third factor, the record discloses that the jury heard evidence for less than three days. The state’s evidence was not complex and was presented in an orderly manner.

Although the defendant did not file a request to charge directed to guiding the jury, the court in its final instructions twice cautioned the jurors that there were two separate criminal charges, and that, while there was only one trial, they were required to render a verdict on each individually or separately and that “each charge stands by itself.”

We conclude that the trial court gave adequate consideration to the potential for prejudice caused by the joinder of the two informations, and that the defendant has failed to meet his heavy burden of demonstrating that substantial prejudice resulted from the joinder.

B

The defendant’s next claim is that he was deprived of a fair trial by the court’s failure to hold a hearing on his motion to suppress before trial and by its ambiguous explanation to the jury of the dismissal of the drug charges.

On August 14,1987, the defendant filed a motion to suppress evidence concerning the search of the hotel room where he was arrested. On September 2, 1987, the court, Ronan, J., acting on that and other motions, ordered it heard at the time of trial along with three other motions to suppress and two unrelated motions. The jury was impanelled and trial commenced on January 7, 1988. The record is silent as to the other five motions, but as to this motion to suppress, the defendant made no request to be heard prior to jury selection or the taking of evidence. The court read to the jury five pending charges which included the three drug counts. Limited testimony was later admitted, without objection, on the drug charges, with the defendant eliciting some of such evidence.

On January 11,1988, after a hearing in the absence of the jury, the court granted the defendant’s motion to suppress and subsequently dismissed the drug charges. The court then informed counsel that it would explain to the jurors that those three drug counts were no longer before them. Upon the jury’s return, the court stated: “For reasons that [are] not necessary to get into with the jury, the three narcotics charges are no longer pending in this proceeding. Therefore, this trial will concern itself with the charge in one case of carrying a dangerous weapon in a motor vehicle and in the other case with the charge of larceny in the first degree .... So, this case is concerned now with two criminal charges, not five. Just two.”

The defendant acknowledges that he does not know why his motion to suppress evidence was heard almost a full day into trial, and that he did not seek to have it heard sooner, even though its disposition could affect the underlying charges dealing with narcotics violations. He also acknowledges that he never asked that the trial court inform the jury that the charges had been dismissed rather than merely no longer pending in this proceeding. Further, the defendant did not object at any time, nor request any additional explanation to the jury.

Although the defendant made no objection to either the claimed delay in the court’s action on his motion to suppress or to the court’s explanation and instruction to the jury, he now claims the issue is constitutional and should be reviewed under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

The issue raised by the defendant is not of constitutional magnitude. Neither the timing of the hearing of the defendant’s motion to suppress, nor the trial court’s statement that the narcotics charges were no longer pending violated the defendant’s fundamental constitutional rights. This court will not review unpreserved claims unless the claim is of constitutional magnitude alleging the violation of a fundamental constitutional right. See State v. Golding, supra; State v. Burroughs, 22 Conn. App. 507, 512, 578 A.2d 146 (1990).

C

The defendant next claims that the trial court abused its discretion by admitting evidence that the police were investigating the defendant in connection with a fatal traffic accident. This evidentiary claim was not preserved at trial and we will not review it.

D

The defendant further claims that he was deprived of his constitutional right to a fair trial by the prosecutor’s improper comment regarding a “hit and run fatality” during closing arguments, and therefore he is entitled to a new trial.

In final argument, the state, in recounting events, stated: “From Danbury, the story continues by going south. The story is picked up in Stratford. I believe you’ll recall that [the Stratford police officer] testified, indicated that in early June he became involved in an investigation regarding a hit and run fatality in his town, that the investigation led to a car which was involved.”

The defendant did not object, request a curative instruction or seek a mistrial. Although the defendant claims this is reviewable under State v. Golding, supra, as being of a “constitutional dimension,” he does not claim that we should notice it as plain error under Practice Book § 4185. Under State v. Golding, supra, the defendant bears the burden of demonstrating that his claim is indeed a violation of a fundamental constitutional right “rather than a common law or statutory claim wearing a constitutional mask.” State v. Watlington, 216 Conn. 188, 193, 579 A.2d 490 (1990). We conclude that, under the circumstances of this case, the prosecutor’s reference to “hit and run fatality” came far short of rising to the level of egregious misconduct implicating the denial of the defendant’s due process rights.

Ill

The defendant claims that he has been deprived of meaningful appellate review due to the loss of the court reporter’s notes concerning certain pretrial events, and the inadequacy of efforts to reconstruct the record during two hearings for rectification. The defendant claims that he is unable to “make as strong as possible an argument on [the evidence of the fatal traffic accident] in his appeal,” that he has a statutory right to appeal, and that being denied a portion of a transcript is a great hardship, particularly where, as here, appellate counsel was not trial counsel.

Although some difficulty may have been present to appellate counsel in not having all transcripts, the defendant, although perhaps not pleased with the results of the two hearings scheduled for the purpose of reconstructing the missing portions, could not have felt too prejudiced since he did not file a motion in the trial court for a new trial on this basis. Instead, he relies heavily on State v. Vitale, 190 Conn. 219, 223-27, 460 A.2d 961 (1983), implying that he should automatically be entitled to a new trial because of the possibility that some error may have occurred that cannot be properly reviewed because appellate counsel may not be aware of it, or cannot be determined by a reviewing court without a full transcript. Our Supreme Court in Vitale held that the unavailability of a portion of the transcript does not warrant a new trial unless those proceedings that might be the basis for a claim of error cannot be sufficiently reconstructed for that purpose. Id., 225. Because no effort had been made to reconstruct the missing proceedings in Vitale, the matter was remanded to the trial court for that purpose. In the present matter, there were two such attempts made and at the second hearing the record discloses that the defendant was represented by both trial and appellate counsel, thereby giving him a full and adequate opportunity to reconstruct the record.

We conclude that the defendant has shown neither prejudice in the proceedings from the lack of a portion of the transcript, nor insufficiency in the reconstruction of the proceeding to allow for a meaningful appellate review.

The judgments are affirmed.

In this opinion the other judges concurred.

       The defendant concedes that his request to charge was “technically” insufficient but argues that it complied with the “spirit” of the law which should allow us to reach the merits of his claim. While not required to so do, we note that one may commit the offense of first degree larceny of a motor vehicle without having first used or operated that vehicle. State v. Corrolla, 113 Conn. 103, 154 A. 153 (1931).

       The defendant did not object to this instruction at trial and raises this claim for the first time on appeal. He contends that his claim meets the criteria of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), as refined by State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We agree with the defendant that the record is adequate for review and that his claim that the trial court failed to instruct the jury adequately on the elements of a crime is of constitutional magnitude alleging the violation of a fundamental right. State v. Golding, supra. Therefore, we will proceed to examine his claim to determine whether the alleged violation clearly exists and clearly deprived the defendant of a fair trial.

       The trial court instructed in relevant part as follows: “The word ‘has’ as it appears in the statute and particularly in the phrase ‘knowingly has’ has no technical meaning. It is a word used by you in common speech and should be so considered. However, I should point out to you what the word does not mean. The word ‘has’ as it’s used in this statute does not mean that one must have the weapon upon his person or even within his reach. The word ‘has’ has little to do with the concept of physical possession because under the statute a jury can find that a person has a weapon in a vehicle even when the weapon is owned by or even in the physical possession of another occupant of the vehicle.
      “However, having said that, I wish to remind you that the statute pertains only to a person who ‘knowingly has,’ which means is aware of, the weapon in the vehicle. Accordingly, in order to find the defendant guilty of this charge, you must find not only that the weapon was in the vehicle but also that the defendant was aware of its existence within the vehicle and also that he occupied or operated a vehicle.
      “Now, on the other hand, in order to find the defendant guilty, you need not find that the defendant was in actual possession of the weapon or that he was the owner or initial carrier of the weapon. The question you should ask yourselves is this. Was the defendant aware of the fact that the weapon was in the vehicle?”
      The court later instructed as to possible inferences that could be drawn from the evidence presented: “One possible inference to which I would call your attention is if you find that the pistol was in the vehicle, then under our law from the presence of the pistol in the car you may draw an inference, if your common sense tells you such an inference would be reasonable and logical in light of the other evidence in the case, you may infer that each occupant of the car, including the defendant, quote, knowingly had, unquote, the pistol in the car, although neither this inference nor any other inference is required. It may be drawn if and when common sense is applied and is reasonable and logical.”

       The court instructed in relevant part as follows: “The first phrase is ‘knowingly has.’ As applied in this case the word ‘knowingly’ is defined as follows. A person acts knowingly with respect to a circumstance described by a statute defining an offense when he is aware that such circumstance exists.
      “The key word in this definition is the word ‘aware’ because in essence a person acts knowingly with regard to something when he is aware that something exists. . . . [T]he statute pertains only to a person who knowingly has, which means is aware of, the weapon in the vehicle. Accordingly, in order to find the defendant guilty of this charge, you must find not only that the weapon was in the vehicle but also that the defendant was aware of its existence within the vehicle .... The question you should ask yourselves is this. Was the defendant aware of the fact that the weapon was in the vehicle? In resolving this question you should consider all the evidence that you have before you and any and all reasonable and logical inferences which you may draw from the evidence.
      “Now, earlier in my instructions I commented upon your right as a jury to draw inferences from the evidence. I gave you some instruction on what circumstantial evidence is. Accordingly, in determining whether the defendant, quote, knowingly has, unquote, the weapon in the motor vehicle, you are entitled to draw reasonable and logical inferences from the evidence that is before you.
      “One possible inference to which I would call your attention is if you find that the pistol was in the vehicle, then under our law from the presence of the pistol in the car you may draw an inference, if your common sense tells you such an inference would be reasonable and logical in light of the other evidence in the case you may infer that . . . the defendant, quote, knowingly had, unquote, the pistol in the car, although neither this inference nor any other inference is required. It may be drawn if and when common sense is applied and is reasonable and logical.”

       The court instructed in relevant part as follows: “There is a concept in our law called consciousness of guilt or guilty conscience. Whenever any person is on trial for a criminal offense, it is proper to show his conduct, as well as any declarations made by him subsequent to the alleged criminal act.
      “The manner in which he conducted himself when accounts by others in respect to this subject were made in his hearing may always be shown. If he should be in possession of or should attempt to conceal anything acquired by the crime, or if he should make false statements respecting himself or as to his whereabouts at the time of the affair, these may be shown, because such conduct or such statements often tend to show a guilty connection by the accused with the crime charged.
      “In other words, from any statements made by the accused subsequent to the alleged criminal act which are shown to be false, you may fairly infer guilty knowledge influenced by the criminal act itself.
      “Now, the state claims in this case that the defendant lied to Corporal Halpin and to Officer Loschiavo about his knowledge of Connie Sheppard up in Danbury and that he lied when he said he did not have any knowledge of any 1987 Chrysler automobile. They also claim that he lied to Jean Johnson when he told her that he owned and had paid for the Chrysler at the time it was exchanged for her Subaru.
      “Now, if you find—of course, the defendant in his testimony denied saying the things to those people that I just referred to—if you should find that the defendant did lie as claimed by the state, then you may properly infer that these statements were borne of a guilty mind since they tended to absolve the accused of involvement until they were shown to be false. Such statements, when shown to be false, are circumstantial evidence of guilty conscience and have independent probative force.”
      The court later cautioned the jury: “Now, if I refer to any evidence, and I will refer to some, but not all of it, it’s only for the purpose of clarification of some point of law or a point of illustration or to refresh your recollection as to the general nature of the testimony. You are not to understand that I intend to emphasize any evidence I mention or limit your consideration to it. If I omit any evidence, and I will omit most of the evidence, most of the evidence I will not refer to, you will supply the evidence that I don’t mention from your own recollection. If I should incorrectly state any evidence you will correct my error because it is your province to review the evidence and determine what facts are established by the evidence.”

       We will treat this claim as one of insufficiency of evidence.


author: Dupont, C. J.

text:
    Steven Levine v. Plan and Zoning Commission of the Town of Fairfield
    (9001)
    Dupont, C. J., Spallone and Lavery, Js.
    Argued December 10, 1990
    decision released June 12, 1991

      Roy H. Ervin, Sr., with whom was Roy H. Ervin, Jr., for the appellant (defendant).

      Lawrence M. Lapine, with whom, on the brief, was Christopher R. Bello, for the appellee (plaintiff).
   Dupont, C. J.

This case has a long history, involving two decisions of the defendant town plan and zoning commission of Fairfield (commission), two appeals to the trial court, and two appeals to this court. The present appeal to this court requires a determination of whether the trial court properly sustained the plaintiffs appeal from the disapproval by the commission of plans for a building addition. A resolution of this appeal necessitates a discussion of the history of the case.

In 1981, the plaintiff filed an application with the commission for a special permit to build a ten unit addition on his existing seven unit motel. On February 1, 1983, after a public hearing, the commission met in an executive session and voted to deny the plaintiffs application. The plaintiff appealed from this decision to the trial court pursuant to General Statutes § 8-8 (b). The court, Meadow, J., found that the reasons for denial were not supported by the record and that the denial by the commission of the application was illegal, arbitrary and an abuse of discretion. The court, therefore, rendered a judgment on December 17, 1985, in favor of the plaintiff, sustaining his appeal and directing the commission to approve his application for a special permit to build a ten unit addition. The commission subsequently appealed from that judgment after its petition for certification to appeal had been granted by this court.

While the appeal in this court was pending, the parties drafted a “Stipulation to Amend Judgment” dated March 4, 1986, with the caption “Superior Court.” It reads in its entirety as follows: “The plaintiff and the defendant in the above entitled matter hereby agree to amend the judgment entered in the above matter on December 17, 1985, by the Honorable Frank S. Meadow by changing the phrase ‘Proposed Ten Unit Addition,’ referred to therein, to ‘Proposed Eight Unit Addition.’ ” The parties did not file the stipulation in the trial court and never moved there for approval of their settlement. The commission withdrew its appeal that was pending in this court on April 11, 1986.

On June 10,1987, the commission amended its business zone regulations so that motels were no longer a permitted use in the area. The plaintiff subsequently submitted revised plans to the commission for an eight unit addition to his motel on April 6, 1988. The total square footage in these plans was the same as in the originally proposed ten unit addition submitted to the commission with the plaintiff’s application for a special permit in 1981. The commission disapproved these plans on April 28,1988, following an executive session.

The reasons the commission gave for this disapproval are the subject of the present appeal. The reasons given were that (1) the square footage of the proposed addition was not reduced according to the commission’s understanding of the stipulation, (2) the plaintiff had failed to commence and complete the project after the commission’s approval within a two year time period as required by the Fairfield Zoning Regulations, and (3) the amended zoning regulations no longer permitted the use of this property as a motel. The plaintiff once again appealed from the commission’s action to the trial court. His appeal was again sustained in a judgment rendered by Judge Coceo on January 17, 1990. After this court granted the commission’s petition for certification to appeal, the commission appealed from the trial court’s judgment. The questions to be resolved by this appeal arise from whether the trial court was correct in rejecting the reasons given by the commission for its disapproval of the plaintiff’s revised plans.

We must first decide whether we are dealing with an appeal from a denial of a special permit or a disapproval of revised plans for an addition to the plaintiff’s motel. The answer to this question cuts across the issues to be resolved by this appeal.

The trial court characterized the appeal as an appeal from the denial of a special permit to add eight units to the plaintiff’s seven unit motel. The plaintiff in his complaint characterized the appeal as one from “the disapproval of his revised plans,” and the relief sought by him was to “sustain the appeal and direct said [commission] to approve the revised plans.” Both parties on appeal characterize the action of the commission as a disapproval of revised plans. The commission in its decision stated that it was disapproving revised plans. The plaintiff submitted his revised plans by letter to the commission, enclosing “Site plan and Map,” rather than by application for a special permit. We treat the plaintiff’s submission to the commission as a revised plan, rather than a new application for a special permit because of the history of the case and because that is the way the parties treated it. Furthermore, the plaintiff did not comply with the requirements for filing an application for a special permit and no public hearing was held as would usually be the case if this were a new application. See § 25.0 of the Fairfield Zoning Regulations.

I

The plaintiff’s revised plans were the same as those submitted in 1981, except that the number of units had been reduced from ten to eight. We must first decide whether the fact that the square footage was not reduced on the revised plans was a reason sufficient for the commission to disapprove the plaintiff’s revised plans for an eight unit addition. The resolution of this question depends on whether the stipulation of the parties could be interpreted by the commission, and that, in turn, depends on an analysis of General Statutes § 8-8 (n).

Section 8-8 (n) provides that no appeal taken under subsection (b), which provides for appeals to the Superior Court, “shall be withdrawn and no settlement between the parties to any such appeal shall be effective unless and until a hearing has been held before the trial court and such court has approved such proposed withdrawal or settlement.” The statute prohibits “side” or secret settlements by the parties once there has been an appeal to the trial court. It does so by prohibiting settlement except by approval of the court. The purpose of the statute is to ensure that zoning matters can be scrutinized by the public by means of a public record. It is the trial court, not the parties, which must approve settlements of zoning cases.

Here, Judge Meadow directed the commission to approve the plaintiff’s application for a special permit for a ten unit addition. No approval of the “settlement” was sought by the parties in the Superior Court and none was granted by the Superior Court. When the case was withdrawn in the Appellate Court, without any modification of the judgment rendered by Judge Meadow, that judgment remained in force. It allowed the plaintiff to build a ten unit addition.

Were it not for the “settlement” of the parties, which caused the defendant to withdraw its appeal in this court, the plaintiff would have been entitled to a building permit for ten units. The plaintiff would be so entitled because the judgment of the court remained in effect, it not having been modified with the approval of the court as required by General Statutes § 8-8 (n).

We have determined that the subject of this appeal is a reconsideration of revised plans rather than a new application for a special permit. As such, at the time of the second decision of the commission, there was outstanding an approval of the application for a special permit by virtue of the judgment rendered by Judge Meadow. See Gervasi v. Town Plan & Zoning Commission, 184 Conn. 450, 440 A.2d 163 (1981); Esposito v. Planning Commission, 6 Conn. App. 34, 502 A.2d 173 (1986).

The trial court, Coceo, J., interpreted the stipulation of the parties as meaning that the judgment by Judge Meadow remained intact except that eight units instead of ten were to be added because the stipulation disturbed nothing else. The dilemma of this case is that if the stipulation can be accorded no effect because it is violative of § 8-8 (n), it should not have been interpreted by the commission or by Judge Coceo. The judgment by Judge Meadow would then prevail pursuant to § 8-8 (n), allowing the plaintiff a permit for a ten unit addition, although he seeks only eight.

We resolve the dilemma by treating the appeal to Judge Coceo, which is the subject of this appeal, as the functional equivalent of a proceeding that was, at least in part, the hearing on, and an approval of, the proposed settlement required by General Statutes § 8-8 (n). Section 8-8 (n) does not contain any time limit on when a hearing thereunder must occur; rather, it prevents any settlement of a zoning appeal from becoming effective until such hearing is held and approval obtained. In order properly to review the proposed settlement under § 8-8 (n), Judge Coceo of necessity had to interpret the stipulation.

The interpretation of the stipulation by the court, that nothing of the original judgment was to be changed except the number of units, should not be disturbed. The plain meaning of the stipulation can lead to no other conclusion.

Even if the appeal before Judge Coceo were not to be treated as a hearing to approve the settlement, the commission should not have disapproved the plaintiffs plans on the ground that the commission’s interpretation of the stipulation differed from that of the plaintiff. Because the plaintiff sought only eight units, and he had an outstanding judgment for ten units, the commission was prevented from denying him the lesser number. It was not for the commission to interpret the stipulation. The most the stipulation could accomplish, short of further trial court action, was to prevent the plaintiff from seeking more than eight units because of the principles of equitable estoppel.

II

Since the commission’s action of disapproval of the plans must be upheld if any one of its stated reasons is sufficient to support that action; Frito-Lay, Inc. v. Planning & Zoning Commission, 206 Conn. 554, 538 A.2d 80 (1988); we must next consider the commission’s second reason for its disapproval of the plaintiff’s plans. The commission decided that the plaintiff had failed to comply with § 25.6 of the Fairfield Zoning Regulations because he did not commence and complete the project after its approval within a two year time period.

The trial court next found that the plaintiff had not violated § 25.6 of the Fairfield Zoning Regulations. The section provides in pertinent part: “Conditional approval. Approval of an application for a special exception under this section shall constitute approval conditioned upon completion of the proposed development, in accordance with plans as approved within a period of 2 years after approval is given. Approval of the application shall become null and void in the event of failure to complete the proposed development within the 2-year period. Said two year period shall commence twenty days from the date of publication of notice of said decision but if an appeal to the applicable courts is filed within such period the two year period shall commence from the date of the final non-appealable determination of said cause of action.”

The commission asserts that the two year period for the completion of the plaintiff’s project began on the date the stipulation was signed. The trial court held that, for the purposes of this regulation, the term “approval of an application” should be given its usual meaning, and that the usual meaning could not be expanded to mean approval of a stipulation. In the trial court’s view, approval in this case meant approval of the plans, and, this having not yet been given, the time period could not run.

The trial court’s interpretation of the regulation would allow the plaintiff to extend the time limit for completion of his project indefinitely by submitting plans at his convenience. If the plaintiff never submitted plans for approval, his special exception or permit would be forever alive, regardless of zoning changes. This interpretation is inconsistent with the plain language and purpose of the regulation, namely, to allow a reasonable period for completion of an approved project as a special exception, in accordance with approved plans.

The trial court did not consider the section of the ordinance expressly dealing with the procedure after appeal. That section states that if “an appeal to the applicable courts is filed [the two year period for completion of the development commences] from the date of the final non-appealable determination of said cause of action.” (Emphasis added.) There are two possible interpretations here of “the date of the final nonappealable determination of the said cause of action.” That date could be either the date the appeal from the first trial court decision was withdrawn or the date of this court’s decision in the present appeal from the second trial court decision. We conclude that two year period has not yet commenced because there has not yet been a final nonappealable determination of his cause of action, which will occur upon the publication of this opinion.

The commission filed the withdrawal of its appeal to this court from the original action on April 11, 1986. At that point, there was a final nonappealable determination, namely that of Judge Meadow. Under the regulation, the plaintiff would have had two years from that date to complete his project, if his cause of action had not been resurrected by the disapproval of his second set of plans to the commission, which in turn triggered a second appeal to the Superior Court. Because the plaintiff’s second appeal was not from a denial of an application for a new special permit, but from a disapproval of revised plans, his cause of action was still viable.

“A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief.” Wade’s Dairy, Inc. v. Fairfield, 181 Conn. 556, 560, 436 A.2d 24 (1980). In Wade’s Dairy, the plaintiff appealed from a cease and desist order of a zoning enforcement officer that prevented the plaintiff from processing fruit drinks, and also, in a separate action, appealed from the denial of its application for a variance to process fruit drinks. After both of these appeals had been dismissed, the plaintiff brought a suit for an injunction to prevent the defendant from interfering with its operation of processing fruit drinks. The court held that all of the cases involved the same cause of action because all of them were premised on the plaintiffs claimed right to produce and distribute fruit drinks.

The prior appeal in the present case was premised on the claim that a special permit should issue to build an addition on the plaintiffs motel. The present appeal is premised on the same claim, namely, that the plaintiffs plans to build an addition should not have been disapproved. Since the present appeal is the same cause of action as was involved in the first appeal, there cannot be a final nonappeaiable determination of it until this court has decided it. We, therefore, hold that the plaintiff was not in violation of § 25.6 because, until this court determines the issues, there is no “final nonappeaiable determination” of his cause of action. Thus, the commission should not have disapproved of the plaintiffs plans on the basis that he had not complied with § 25.6.

Ill

The last reason given by the commission for disapproval of the plaintiffs plans is that a special permit may no longer be given to him because the zone in which his motel is located no longer permits such use. The zone change was effective on June 10,1987. Judge Coceo, on January 17, 1990, decided this issue on the basis that the stipulation was a contract that could not be abrogated by the town without violating the United States constitution. The commission claims that because the plaintiff did not allege in his complaint that the amendment of the zoning regulations violated the contracts clause of the United States constitution, the court should not have considered such an argument. The plaintiff does not claim that the town had no power to enact the zoning regulation but that, as applied to him, it was unconstitutional. See D ’Addario v. Planning & Zoning Commission, 25 Conn. App. 137, 593 A.2d 511 (1991). We conclude that we need not reach the constitutional claim of the plaintiff.

General Statutes § 8-2h, effective October 1, 1989, provides that an application that is in conformance with applicable zoning regulations at the time of its filing cannot be disapproved for its failure to comply with a subsequent change in the zoning regulations. In this case, the original application for a special permit was filed in 1981. The revised plans, after the granting of the special permit had been directed by the trial court, were filed on April 6, 1988, and disapproved by the commission on April 28, 1988.

We need not decide whether § 8-2h may be applied retroactively because we conclude that, under the circumstances of this case, it is equitable to enforce the zoning regulations in effect at the time of the original application. Marmah, Inc. v. Greenwich, 176 Conn. 116, 405 A.2d 63 (1978). Here, the plaintiff claimed that the zone change was directed at him. This is not substantiated in the record but the denial occurred at an executive session at which no notes were kept and from which no transcript supplied. Although we have nothing before us as to why the zone change was effected, we do know that the plaintiff had a valid special permit to build an addition on an existing motel in the zone, which predated the zone change. A trial court is not automatically bound to apply zoning regulations as of the time of appeal. Id., 121; see also Zoning Commission v. New Canaan Building Co., 146 Conn. 170, 148 A.2d 330 (1959). The equities of this case, particularly the fact that the commission was not dealing with a new application for a special permit but with revised plans, pursuant to an existing permit, are with the plaintiff. We conclude that this last reason for disapproval is not sound.

The judgment sustaining the plaintiffs appeal is affirmed and the case is remanded to the trial court with direction to render judgment directing the defendant to issue a special permit in accordance with the plaintiffs revised plans for an addition of eight units.

In this opinion the other judges concurred.

       The Appellate Court is not included in the statute and the statute does not prohibit withdrawals or settlements of appeals pending in it.

       The plaintiff presumably would be prevented from seeking more than an eight unit addition because of the doctrine of equitable estoppel. See Kimberly-Clark Corporation v. Dubno, 204 Conn. 137, 148, 527 A.2d 679 (1987).

       The final nonappeaiable determination date could be extended if further appellate review is accorded by our Supreme Court.

        McCallum v. Inland Wetlands Commission, 196 Conn. 218, 223, 492 A.2d 508 (1985), which held that the provisions of a zoning regulation at the time of the decision of a court, rather than at the time of the action of the administrative agency, governs the outcome of an appeal, was effectively overruled by General Statutes §§ 22a-42e and 8-2h. MeCallum may have some limited application in cases decided by zoning authorities prior to October 1, 1989.