author: Freedman, J.

text:
    Leslie Lauf v. Raymond James
    (11677)
    Lavery, Landau and Freedman, Js.
    Argued September 29
    decision released December 14, 1993

      John P. Sjovall, for the appellant (defendant).

      Joseph Dimyan, with whom, on the brief, was Ronald E. Kowalski II, for the appellee (plaintiff).
   Freedman, J.

The defendant, Raymond James, appeals from the trial court’s granting of a prejudgment attachment of his real property pursuant to General Statutes § 52-278a et seq. The defendant claims that the trial court improperly granted the application of the plaintiff, Leslie Lauf, for a prejudgment remedy because she failed to submit a properly executed affidavit along with her application. We reverse the order of the trial court.

The following facts are necessary for the disposition of this appeal. The plaintiff was born in Danbury in 1965. She lived in Connecticut until 1987 when she moved to California and resided there until the time of this action.

On August 10,1992, the plaintiff filed an application for a prejudgment remedy, which sought to attach real property owned by the defendant in Danbury, to secure the sum of $500,000. Along with the application for a prejudgment remedy, the plaintiff submitted a complaint alleging that the defendant sexually assaulted her on various occasions from 1972 to 1982. Also accompanying the application was what purported to be an affidavit of the plaintiff averring to the facts contained in the complaint. This affidavit had been faxed to the plaintiff in California where she signed it and then faxed it back to her attorney in Connecticut. Upon receipt of the faxed affidavit, the attorney took the plaintiffs acknowledgment over the telephone.

A hearing on the prejudgment remedy application was held to determine probable cause on August 17, 1992, before Moraghan, J. At the hearing, the defendant moved to dismiss or strike the application for a prejudgment remedy claiming, inter alia, that because of the manner in which the purported affidavit was acknowleged, it was not in fact an affidavit and did not satisfy the requirements of General Statutes § 52-278c (a) (2). After oral argument, the trial court denied the motion. Immediately thereafter, the trial court began the probable cause hearing. Because it was late in the day, however, the hearing was stopped and started anew the following morning before Rodriguez, J. After a full hearing, the trial court found that there was probable cause to sustain the validity of the plaintiffs claim and granted the application. On the basis of the evidence presented at the hearing, the trial court set the amount of the attachment of the defendant’s real property at $50,000.

At oral argument before this court, the plaintiff conceded that the purported affidavit did not constitute an affidavit and that we should proceed as if there had been no affidavit submitted with the application for prejudgment remedy.

The controlling issue before this court, therefore, is whether an affidavit must be submitted along with an application for prejudgment remedy in order for the trial court to order and conduct a hearing on an application for a prejudgment remedy.

There are three separate elements of the jurisdiction of a court: jurisdiction over the person, jurisdiction over the subject matter, and jurisdiction to render the particular judgment. Castro v. Viera, 207 Conn. 420, 433-34, 541 A.2d 1216 (1988). “The Superior Court lacks subject matter jurisdiction only if it has no competence to entertain the action before it. Meinket v. Levinson, 193 Conn. 110, 115, 474 A.2d 454 (1984); Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 559, 468 A.2d 1230 (1983); Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979); 1 Restatement (Second), Judgments (1982) § 11.” Bridgeport v. Debek, 210 Conn. 175, 180, 554 A.2d 728 (1989). Pursuant to General Statutes § 52-278a et seq., the trial court has statutory authority to hear and grant applications for prejudgment remedies. Therefore, the trial court had subject matter jurisdiction to hear this application for a prejudgment remedy.

“Unlike subject matter jurisdiction . . . personal jurisdiction may be created through consent or waiver. United States Trust Co. v. Bohart, 197 Conn. 34, 39, 495 A.2d 1034 (1985); see also Insurance Corporation of Ireland v. Compagnie des Bauxites, 456 U.S. 694, 703-704, 102 S. Ct. 2099, 72 L. Ed. 2d 492 (1982).” Bridgeport v. Debek, supra. Here, the defendant was served with process and appeared at the hearing. Thus, the trial court had personal jurisdiction. The issue before us, therefore, is whether the trial court had jurisdiction to issue the order granting the prejudgment remedy.

“The remedy of attaching and securing a defendant’s property to satisfy a judgment which the plaintiff may recover is unknown to the common law and is founded on and regulated by our statutory law. E. J. Hansen Elevator, Inc. v. Stoll, [167 Conn. 623, 628, 356 A.2d 893 (1975)]; Harris v. Barone, 147 Conn. 233, 234, 158 A.2d 855 [1960]; Chapel-High Corporation v. Cavallaro, 141 Conn. 407, 410, 106 A.2d 720 [1954]; Loewe v. Savings Bank of Danbury, 236 F. 444, 448 (2d Cir. [1916]); Penoyar v. Kelsey, 150 N.Y. 77, 44 N.E. 788 [1896]. It follows that a party seeking an attachment must comply with the requirements of the statutes allowing such attachment as may be sought.” Ledgebrook Condominium Assn., Inc. v. Lusk Corp., 172 Conn. 577, 582, 376 A.2d 60 (1977). General Statutes § 52-278b provides that “no prejudgment remedy shall be available to a person in any action at law or equity . . . unless he has complied with the provisions of sections 52-278a to 52-278g, inclusive . . . .” “Except in certain instances not applicable to this case, one of the prerequisites to the granting of such a remedy is that the plaintiff or some competent person sign an affidavit stating facts sufficient to establish probable cause that judgment will be rendered in the matter in favor of the plaintiff. General Statutes § 52-278c (A) (b).” Essex Group, Inc. v. Ducci Electric Co., 181 Conn. 524, 525, 436 A.2d 16 (1980).

Because, as conceded by the plaintiff, we are to decide this case as if no affidavit had been filed with the application, we conclude that the plaintiff failed to comply with the requirements of § 52-278c. Therefore, the trial court did not have jurisdiction to issue the order granting the prejudgment remedy.

The plaintiff contends, however, that the lack of an affidavit can be cured through the evidence presented at the hearing to determine probable cause. In support of her contention, the plaintiff relies on Glanz v. Testa, 200 Conn. 406, 511 A.2d 341 (1986), and Lengyel & Lengyel Builders, Inc. v. Hill, 1 Conn. App. 349, 471 A.2d 975 (1984).

In Glanz, the issue was whether a trial court, at a hearing on a motion to dissolve an ex parte prejudgment real estate attachment, is limited to an examination of probable cause as presented in the supporting affidavit to the prejudgment remedy application. Glanz v. Testa, supra. Our Supreme Court held “that a plaintiff may present evidence at a hearing on a motion to dissolve an ex parte prejudgment attachment in order to support an insufficient initial affidavit.” Glanz v. Testa, supra, 408. Likewise, in Lengyel, the plaintiff requested an ex parte prejudgment real estate attachment. Lengyel & Lengyel Builders, Inc. v. Hill, supra. The application failed to establish probable eause for the amount of damages sought. Id. In Lengyel, we held that the evidence at the hearing to dissolve the attachment may be used to establish probable cause notwithstanding an insufficient affidavit submitted with the application. Id.

Both Glanz and Lengyel, however, are clearly distinguishable from the present case. Glanz and Lengyel involved properly executed affidavits that were simply lacking in sufficient facts to show probable cause. Here, there was no affidavit. Since § 52-278c (a) requires that an affidavit be submitted with an application for a prejudgment remedy before a prejudgment remedy “shall be available to a person” under § 52-278b, it is only after an affidavit is submitted that the holdings in Glanz and Lengyel become applicable.

The order granting the application for the prejudgment remedy is reversed and the case is remanded with direction to deny the plaintiffs application.

In this opinion the other judges concurred.

       The defendant also claims that the plaintiff’s action is barred by the statute of limitations. We do not address this claim any further than to state that the issue has been addressed by our Supreme Court in Roberts v. Caton, 224 Conn. 483, 619 A.2d 844 (1993). Additionally, the defendant claimed that the trial court erred in granting the prejudgment remedy because the plaintiff had failed to comply with General Statutes §§ 52-278c (d) and 52-278d (b) by signing the summons and complaint submitted with the application for prejudgment remedy. We need not address this claim because of our resolution of the defendant’s claim that the plaintiff failed to submit a properly executed affidavit.

       General Statutes § 52-278c provides in pertinent part: “(a) Except as provided in sections 52-278e and 52-278f, any person desiring to secure a prejudgment remedy shall attach his proposed unsigned writ, summons and complaint to the following documents:
      “(1) An application, directed to the superior court to which the action is made returnable, for the prejudgment remedy requested;
      “(2) An affidavit sworn to by the plaintiff or any competent affiant setting forth a statement of facts sufficient to show that there is probable cause that judgment will be rendered in the matter in favor of the plaintiff;
      “(3) A form of order that a hearing be held before the court or a judge thereof to determine whether or not the prejudgment remedy requested should be granted and that notice of such hearing be given to the defendant;
      “(4) A form of summons directed to a proper officer commanding him to serve upon the defendant at least four days prior to the date of the hearing, pursuant to the law pertaining to the manner of service of civil process, the application, a true and attested copy of the writ, summons and complaint, such affidavit and the order and notice of hearing . . . .”

       We, therefore, do not reach the issue of the effect that a facsimile transmission may have on an affidavit.

       The plaintiff did not seek an ex parte attachment.

       See footnote 2.

       See footnote 2.


source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    Michael J. Madigan v. Michelle A. Madigan
    (11051)
    O’Connell, Heiman and Schaller, Js.
    Argued November 5
    decision released December 14, 1993

      Louis Kiefer, for the appellant (plaintiff).

      Emily J. Moskowitz, for the appellee (defendant).
   Heiman, J.

This case is before us on remand from the Supreme Court. Madigan v. Madigan, 224 Conn. 749, 620 A.2d 1276 (1993). When the matter was originally before us, we dismissed the appeal, sua sponte, concluding that an order of temporary custody and certain other pendente lite orders, did not constitute a final appealable judgment. Upon the granting of certification, the Supreme Court reversed our decision, concluding that the granting of a motion for temporary custody of minor children in a dissolution proceeding is immediately appealable. Id., 757.

Certain facts are necessary to a resolution of this appeal. After a full evidentiary hearing, the trial court entered an order that the parties’ two minor children be placed in joint custody with the primary residence of the children with the defendant. The trial court then set visitation for the parties that coincided with a visitation schedule set by the Probate Court for the child that had been removed from the parental home.

The plaintiff asserts, in the only issue on appeal still before this court after remand, that the trial court improperly ordered that the primary residence of the minor children be with the defendant.

At oral argument, the defendant informed this court, for the first time, that the order fixing the primary place of residence of the minor children with the defendant, from which this appeal had been taken, was modified upon a motion for modification sought by the plaintiff, still, however, pendente lite. The plaintiff conceded that the order under appeal had been modified and that the primary place of residence has now been fixed as being with the plaintiff. The parties further conceded that no practical relief could be afforded to the plaintiff because the modified order was the relief that he sought in this appeal. We conclude that the appeal has thus been rendered moot.

“Mootness applies to situations where events have occurred during the pendency of an appeal that make an appellate court incapable of granting practical relief through a disposition on the merits. . . . The standards governing mootness are well established. Because this court has no jurisdiction to give advisory opinions, no appeal can be decided on its merits in the absence of an actual controversy for which judicial relief can be granted.” (Citation omitted; internal quotation marks omitted.) Papagorgiou v. Anastopoulous, 29 Conn. App. 142, 146, 613 A.2d 853, cert. denied, 224 Conn. 919, 920, 618 A.2d 527 (1992). Accordingly, because the order from which this appeal was taken is no longer the order of the court, but has been replaced by a different order from which no appeal has been taken, there is no actual controversy in this case and the appeal is thus rendered moot.

Obviously, appeals may be rendered moot by other than the granting of motions for modification. See Sobocinski v. Freedom of Information Commission, 213 Conn. 126, 133, 566 A.2d 703 (1989) (withdrawal of underlying civil action); Shays v. Local Grievance Committee, 197 Conn. 566, 570-71, 499 A.2d 1158 (1985) (plaintiff had served entire sentence legality of which he disputes); Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 249, 440 A.2d 310 (1982) (strike and picketing ended during pending appeal); Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17, 19, 411 A.2d 1 (1979) (order of temporary injunction expired and not renewed). Since an appeal from the granting of a motion of temporary custody is sui generis, where subsequent orders of the trial court impact on the existence of an actual case and controversy, it is the obligation of the parties to call that fact to the attention of the appellate court by an appropriate motion so that the issue of whether an actual case and controversy still exists may be determined in a timely fashion.

The appeal is dismissed.

In this opinion the other judges concurred.

       The parties’ third minor child was not involved in the custody order sought in the Superior Court. He had been removed from both biological parents by order of the Probate Court for the district of Manchester, and his custody was not at issue here.

       See footnote 1.


author: Landau, J.

text:
    State of Connecticut v. James D. Leroy
    (11187)
    Lavery, Landau and Freedman, Js.

      Argued September 14
    decision released December 14, 1993

      Temmy Ann Pieszak, assistant public defender, for the appellant (defendant).

      Jack W. Fischer, assistant state’s attorney, with whom, on the brief, were John M. Bailey, chief state’s attorney, and Leah Hawley and Keith Duboff, assistant state’s attorneys, for the appellee (state).
   Landau, J.

The defendant appeals from his conviction, rendered after a jury trial, of assault in the second degree with a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § BSa-fíOd. The defendant claims that the trial court improperly (1) instructed the jury as to proximate cause, (2) denied a motion to strike expert testimony on the ground of lack of an evidentiary foundation, and (3) instructed the jury as to reasonable doubt thereby diluting the state’s burden of proof. We agree with the defendant’s first claim and reverse the judgment of the trial court. Because this is dispositive of the appeal, we need not address the remaining claims.

The jury could have reasonably found the following facts. On September 29,1984, at approximately 3 a.m., the defendant, James Leroy, was involved in a two vehicle collision with Leslie Daniel in Enfield. The defendant’s car was traveling east and Daniel’s car was heading west on Shaker Road when the two cars collided. The area where the impact occurred was rural, dark and badly lit, with curves and hills. Ralph Adamczyk was the only eyewitness to the accident. He was traveling behind Daniel’s car and observed both headlights of the defendant’s oncoming car as it came around a corner. As the defendant’s car approached, the driver’s side headlight disappeared twice from Adamczyk’s view. Both cars swerved to avoid a collision. Adamczyk spoke with and observed the defendant after the collision and did not consider him to be intoxicated. At the accident scene, police officers noted the smell of alcohol on the defendant, and the defendant had difficulty maintaining his balance and exhibited slurred speech. The defendant was unable to perform two field sobriety tests satisfactorily. The defendant’s breath test yielded a blood alcohol reading of 0.215 of 1 percent, revealing that he had consumed between ten to thirteen beers.

As a result of the accident, Daniel suffered serious injuries. She was unconscious from the time of the accident until October 19,1984, and remained hospitalized until late November, 1984. Upon release from the hospital, Daniel’s speech and memory were impaired, she could not walk or use her left arm, and her vision was limited. She received more than seven months of physical, occupational and educational rehabilitation therapy. Daniel’s speech is no longer impaired and she has relearned to read and write, but has not regained all of her memory. Daniel cannot walk or use her left arm or hand, and has impaired vision.

We first turn to the defendant’s claim that the trial court improperly instructed the jury as to proximate cause. The defendant concedes that this claim is unpreserved. He seeks review of this claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In Golding, the Supreme Court held that a defendant can prevail on an unpreserved claim of error if all of the following conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id., 239-40.

We find the defendant’s claim reviewable. In examining the first criterion of Golding, we note that it was designed to avoid remands for the purpose of supplementing the record. State v. Stanley, 223 Conn. 674, 613 A.2d 788 (1992). “ ‘If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.’ ” State v. O’Brien, 29 Conn. App. 724, 732, 618 A.2d 50 (1992), cert. denied, 225 Conn. 902, 421 A.2d 285 (1993), quoting State v. Golding, supra, 240. Our review of the record indicates that the facts are sufficiently clear and unambiguous for this court to determine whether a constitutional violation has occurred.

The second prong of Golding is also satisfied. “An accused has a fundamental right, protected by the due process clauses of the federal and Connecticut constitutions, to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Williams, 202 Conn. 349, 363, 521 A.2d 150 (1987). Improper jury instructions on an essential element of the crime charged, in this case proximate cause, implicates a fundamental constitutional right. See State v. Wilkinson, 176 Conn. 451, 460, 408 A.2d 232 (1979); State v. Kwaak, 21 Conn. App. 138, 572 A.2d 1015, cert. denied, 215 Conn. 811, 576 A.2d 540 (1990).

Next, we must consider whether the defendant met his burden as to the third requirement of Golding. We must inquire whether the alleged constitutional violation clearly exists and, if so, whether it clearly has deprived the defendant of a fair trial.

The defendant claims that the jury instructions were inaccurate as to whether the defendant’s conduct was the proximate cause of the victim’s injuries. Specifically, he argues that the trial court instructed the jury that if the defendant’s conduct was “a substantial factor” in bringing about the victim’s injuries, his conduct was the proximate cause of those injuries. The defendant maintains that his actions would be the proximate cause of the victim’s injuries only if a jury found that his conduct was “the predominating cause or the substantial factor” in producing the victim’s injuries.

The state relies on State v. Jacobs, 194 Conn. 119, 125, 479 A.2d 226 (1984), cert. denied, 469 U.S. 1190, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985), and State v. Tomassi, 137 Conn. 113, 118, 75 A.2d 67 (1950), for the proposition that because the defendant’s intoxication contributed to the injuries, liability arises. The issue before the Jacobs and Tomassi courts was not causation and the effect of concurrent events. Rather, both courts spoke to the effect of negligent medical care as to the issue of causation. Thus, the case at bar is distinguished from those cases.

Our review of the charge in its entirety indicates that the trial court’s instructions were not a correct statement of the law on the issue of proximate causation. “While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury.” State v. Channer, 28 Conn. App. 161, 172, 612 A.2d 95, cert. denied, 223 Conn. 921, 614 A.2d 826 (1992). “ ‘Proximate cause’ in the criminal law does not necessarily mean the last act of cause, or the act in point of time nearest to [the result]. The concept of proximate cause incorporates the notion that an accused may be charged with a criminal offense even though his acts were not the immediate cause of [the result]. An act or omission to act is the proximate cause . . . when it substantially and materially contributes, in a natural and continuous sequence, unbroken by an efficient, intervening cause, to the [result]. It is the cause without which the [result] would not have occurred and the predominating cause, the substantial factor, from which [the result]follows as a natural, direct and immediate consequence.” (Emphasis added.) State v. Spates, 176 Conn. 227, 233-34, 405 A.2d 656 (1978), cert. denied, 440 U.S. 922, 99 S. Ct. 1248, 59 L. Ed. 2d 475 (1979); State v. Kwaak, 21 Conn. App. 138, 145-46, 572 A.2d 1015, cert. denied, 215 Conn. 811, 576 A.2d 540 (1990). The charge did not inform the jury that the element of proximate cause is established if the defendant’s actions were “the predominating cause, or the substantial factor” of the injuries sustained by the victim. Instead, the trial court repeatedly used the phrase “a substantial factor,” language that the jury could reasonably interpret as permitting a guilty verdict simply if the defendant’s conduct was one of the many factors that caused the injuries. Connecticut law requires for a conviction, however, that a jury find beyond a reasonable doubt, that the defendant’s conduct was “the predominating cause, or the substantial factor” of the injuries, not one of many factors. See State v. Spates, supra, 234. It is not crucial for jury instructions to include the exact language offered in Spates, but words that communicate the meaning presented in Spates are crucial. Here, the instructions did not include supplemental language correcting the possibility of misinterpretation presented by the “a substantial factor” language.

“[T]he failure to instruct the jury adequately on each essential element of the crime charged may have resulted in a violation of the defendant’s due process rights implicating the fairness of his trial . . . .” (Internal quotation marks omitted.) State v. Allen, 216 Conn. 367, 383, 579 A.2d 1066 (1990). “It is, of course, constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged.” State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988). The trial court gave instructions that were not correct in law on the issue of causation, thus, we conclude that the alleged constitutional violation clearly exists.

This does not end our inquiry. We must inquire as to whether the constitutional violation clearly deprived the defendant of a fair trial. State v. Golding, supra. “In reviewing a constitutionally based challenge to the court’s instructions to the jury, we must examine the charge as a whole to determine whether it is reasonably possible that the jury was misled by the challenged instruction. State v. Snook, 210 Conn. 244, 275-76, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989); State v. Bailey, 209 Conn. 332, 338, 551 A.2d 1206 (1988).” State v. Oler, 24 Conn. App. 347, 358, 588 A.2d 1080, cert. denied, 219 Conn. 909, 593 A.2d 134, cert. denied, U.S. , 112 S. Ct. 319, 116 L. Ed. 2d 26 (1991). “The charge is not to be judged in artificial isolation from the overall charge. State v. Kelly, 23 Conn. App. 160, 164, 580 A.2d 520 (1990), cert. denied, 216 Conn. 831, 583 A.2d 130, cert. denied, 449 U.S. 981, 111 S. Ct. 1635, 113 L. Ed. 2d 731 (1991).” State v. Falcon, 26 Conn. App. 259, 269, 600 A.2d 1364 (1991), cert. denied, 221 Conn. 911, 602 A.2d 10 (1992). An error in the charge requires reversal only if, in the context of the whole instruction, there is a reasonable possibility that the jury was misled in reaching its verdict. State v. Bailey, 209 Conn. 322, 338, 551 A.2d 1206 (1988).

Spates requires that an accused’s conduct be the predominating cause or the substantial factor of the resulting injuries and that this element be proven beyond a reasonable doubt. State v. Spates, supra, 234. As we stated, it is possible that an accused’s conduct may be a substantial factor in resulting injuries, but not the predominating cause or the substantial factor. A jury, faced with these instructions, could reasonably convict without finding that the actions were the predominating cause or the substantial factor. Because the trial court’s instructions to the jury did not provide a substantively accurate statement of the law on the essential element of causation, an issue strongly contested at trial, it is reasonably possible that the jury was misled in rendering the verdict. The trial court’s failure to give an accurate statement of the law as to proximate cause in its charge, a clear constitutional violation, misled the jury and deprived the defendant of a fair trial. State v. Golding, supra.

The fourth criterion of Golding requires a two-step inquiry. First, we must determine if the alleged constitutional violation is subject to harmless error analysis. If the claimed error is subject to harmless error analysis, we then determine if the state has met its burden of proving that the error was harmless. Id.

Certain constitutional violations are subject to harmless error analysis and do not require automatic reversal. State v. Cohane, 193 Conn. 474, 484-85, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984). Jury instructions containing misstatements of law as to an essential element of the offense charged are properly subject to harmless error analysis. See State v. Crafts, 226 Conn. 237, 627 A.2d 877 (1993) (error in instruction as to essential element of crime subject to harmless error analysis); State v. Rouleau, 204 Conn. 240, 528 A.2d 343 (1987) (jury instruction containing misstatement of law on burden of proving defense of duress constituted harmful error); State v. Torrence, 196 Conn. 430, 437, 493 A.2d 865 (1985) (harmless error analysis applied to misstatement of essential element of crime in jury charge); see also Pope v. Illinois, 481 U.S. 497, 107 S. Ct. 1918, 95 L. Ed. 2d 439 (1987) (harmless error inquiry applicable to jury instruction misstating element of offense); Rose v. Clark, 478 U.S. 570, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986) (incorrect instruction on element of malice, harmless error inquiry appropriate). “In such circumstances we require the state to prove the error harmless beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Cohane, supra, 485. “An erroneous instruction, even of constitutional dimension, is harmless if, viewed in the context of the charge as a whole, there is no reasonable possibility that the jury was misled.” (Internal quotation marks omitted.) State v. Kwaak, supra, 160-61. We have already determined that a jury instruction that does not impart an accurate statement of the law as to proximate cause has the reasonable possibility of misleading a jury in rendering a verdict. The state has failed to prove beyond a reasonable doubt that the erroneous charge was not misleading and thus harmless. We therefore conclude that the court’s instruction on proximate cause was constitutionally flawed and misled the jury.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 53a-60d (a) provides: “A person is guilty of assault in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of intoxicating liquor or any drug or both, he causes serious physical injury to another person as a consequence of the effect of such liquor or drug.”

       Whereas the first two conditions of Golding are determinations of whether a defendant’s claim will be reviewed, the third prong constitutes a review of the merits. See Wilson v. Cohen, 222 Conn. 591, 603, 610 A.2d 1177 (1992) (“[hjaving surmounted the threshold requirements for review . . . the plaintiff is entitled to a determination of the merits of his claim under the third criterion”).

       In the portion of the charge to the jury relating to proximate causation the trial court stated as follows: “Now, as I previously instructed, the state must establish beyond a reasonable doubt that the alleged intoxication of the defendant caused the serious injury of another person. Therefore, if you find intoxication but also find that it was not a substantial factor in causing the alleged injuries of the victim, then the intoxication was a condition surrounding the injury, not a cause of it, and you must return a finding of not guilty.
      “For the defendant to be found guilty, the state must establish beyond a reasonable doubt a cause or a relation between the accident caused by the defendant being intoxicated, and the injury it claims resulted from it.

        This causal connection must rest upon more than surmise, speculation or conjecture. You, as triers of the facts, are not to be concerned with possibilities but only with reasonable probabilities.
      “In consideration of the causes of this accident and the result, you should keep in mind that all collisions that occur on the highways are not necessarily caused by the fault of some person. Accidents may happen when neither party is at fault. An accident which could not be prevented by the exercise of reasonable care and prudence is called an unavoidable accident, and if you believe from the evidence that this occurrence was of such a character, the defendant is entitled to a verdict of not guilty.
      “As I have said, the state must prove that the defendant’s intoxication proximately caused serious physical injury to Leslie Daniel. Proximately caused is a direct cause. It’s an act or a failure to act, followed in its natural consequence by a result, without the intervention of any other superseding cause. Whether the sequence of events is unbroken by any intervening cause, an act or a failure to act is a proximate cause of the result. Proximate cause, thus, is an act or a failure to act which is a substantial factor in producing the result.
      “Now, the intoxication of the defendant need not be the sole proximate cause of the injuries. All that is required is that the intoxication of the defendant, if you find that he was intoxicated, be a substantial factor in bringing about the injuries to Leslie Daniel. Now, if you find that the defendant’s intoxication — if you find intoxication, but if you find that such intoxication . . . was a substantial factor, then the state has met its burden in this element.” (Emphasis added.)

       In its argument and brief, the state misstates the Spates definition of proximate cause. It omits “the predominating cause, or the substantial factor” language. That dereliction significantly changes the reasoning of Spates as to the import of proximate cause. To determine the proximate cause of injury or death for conviction, in cases involving cumulative causes, a fact finder is required to find “the predominating cause, or the substantial factor.” State v. Spates, 176 Conn. 227, 234, 405 A.2d 656 (1978).

        Chapman v. California, 386 U.S. 18, 23-24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).


author: O’Connell, J.

text:
    State of Connecticut v. Peter J. Haselman
    (11731)
    Dupont, C. J., O’Connell and Heiman, Js.
    Argued September 21
    decision released December 14, 1993

      Michael Parizo, for the appellant (defendant).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were C. Robert Satti, Sr., state’s attorney, and Michael Regan, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

This appeal follows the defendant’s conditional plea of nolo contendere and subsequent conviction of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. The defendant claims that the trial court improperly denied his motion to suppress evidence. We affirm the judgment of the trial court.

For purposes of the hearing on the motion to suppress, the parties filed a written stipulation of facts. Facts necessary for disposition of this appeal may be summarized as follows. As a result of injuries suffered in a motorcycle-motor vehicle accident, the defendant was taken to William W. Backus Hospital where blood was drawn from him for purposes of diagnosis and treatment. The blood drawing did not meet the requirements for admission into evidence of a police administered blood test pursuant to General Statutes § 14-227a (c), but did meet the requirements of a hospital administered test under General Statutes § 14-227a (l).

The defendant argues that the evidence should have been suppressed because the hospital blood test section violates various provisions of the state and federal constitutions. While this appeal was pending, we decided State v. DesLaurier, 32 Conn. App. 553, 630 A.2d 119, cert. granted on other grounds, 227 Conn. 930, 632 A.2d 705 (1993), in which we determined many of the issues raised here. In DesLaurier, we held that blood test results obtained under General Statutes § 14-227 subsection (l), applicable to the admissibility of hospital administered tests, were admissible despite the test’s not meeting the requirements of subsection (c), applicable to the admissibility of police administered tests. Id., 566. We also refused to subject the defendant’s claim to equal protection analysis under the state and federal constitutions on the ground that the injured versus uninjured person classification on which the defendant’s claim rested did not exist. Id., 566-67.

In the present case, the defendant raises two additional claims. First, the defendant claims that subsections (c) and (l) of § 14-227a classify motor vehicle operators on the basis of physical disability, which he contends is a suspect class under the state and federal constitutions requiring the state to demonstrate that the challenged statute is necessary to further a compelling state interest. Daly v. DelPonte, 225 Conn. 499, 515, 624 A.2d 876 (1993). The defendant relies on federal statutory definitions of physical disability in concluding that the injuries he suffered in the accident amounted to a physical disability for the purposes of equal protection analysis. The fallacy in the defendant’s position is that it presupposes that § 14-227a (c) and (l) establish a classification on the basis of physical injury, which our decision in DesLaurier ruled out. See State v. DesLaurier, supra, 566-67.

Notwithstanding this, the defendant asks us to interpret § 14-227a as mandating a postaccident determination in order to decide whether, for the purpose of equal protection analysis, he suffered permanent physical disabilities. We decline to follow the defendant’s reasoning because whether a motor vehicle operator suffered permanent disabling injuries has no bearing on a hospital’s decision to administer a blood test. Moreover, the protections afforded that operator under § 14-227a (l) with respect to the subsequent admission of his or her blood tests at trial are wholly adequate under the circumstances. See State v. DesLaurier, supra, 567; see also General Statutes § 14-227a (l).

Additionally, the injuries suffered by the defendant would not qualify him as a member of the class of physically disabled persons contemplated in the Connecticut constitution. Our review of the hearings on the adoption of the disability clause indicates a clear intention on the part of the drafters, because of past discrimination and unequal treatment, to provide constitutional protection to persons with chronic physical and mental disabilities. See 26 S. Proc., Pt. 9, 1983 Sess., p. 3173.

That the defendant was an otherwise healthy person who suffered serious injury as a consequence of a motor vehicle accident is not disputed. At the accident scene and in the hospital, however, the defendant did not suddenly join a constitutionally protected class “especially subject to discrimination . . . requiring] the application of the highest standard of review to vindicate [its members’] constitutional rights.” See Daly v. DelPonte, supra, 515. He was the unfortunate victim of an automobile accident. To hold otherwise would render the disability clause of the Connecticut constitution meaningless. Accordingly, the defendant’s claim fails.

Second, the defendant claims that § 14-227a (c) and (l) violate his right to equal protection of the law in that they impinge on the fundamental right to be free from discrimination based on physical disability under the state and federal constitutions. In view of our conclusion that the defendant does not fall within the class of physically disabled persons protected by the Connecticut constitution, we need not address this or any of the defendant’s remaining claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       The parties’ full stipulation is as follows: “(1) On or about Sunday, July 21,1991, at 12:45 a.m., the defendant, Peter J. Haselman, sustained serious physical injuries as a result of a motor vehicle accident. (2) The injuries which Mr. Haselman sustained included a fractured right arm and a fractured foot. (3) The injuries which Mr. Haselman received prevented him from standing or walking. Mr. Haselman could not drive a car; nor could he work or otherwise care for himself at any of the times hereinafter mentioned. (4) The injuries which Mr. Haselman received would prevent him from standing, walking, driving a car, working or otherwise caring for himself for a period of time in excess of 45 days. (5) The injuries which Mr. Haselman received still prevent him from working and can be expected to do so for another 3 or 4 months time. (6) Mr. Haselman was put on a stretcher, placed in an ambulance and transported to the Wm. W. Backus Hospital. (7) Subsequent to his admission to the hospital, blood was drawn from Mr. Haselman in the regular course of business of the hospital for the diagnosis and treatment of Mr. Haselman’s injuries. The blood was drawn by a person licensed to practice medicine and surgery in this state, a resident physician or intern in a hospital in this state, a qualified laboratory technician, an emergency medical technician II or a registered nurse. (8) Mr. Haselman was not advised that blood would be drawn from him as a result of his admission. He did not give his consent to have his blood drawn. At the time the blood was drawn, he was not advised that his blood would be tested for its alcohol content nor was he advised that the result of any such test could be subpoenaed by the State Police and used as evidence against him in a subsequent prosecution for driving while intoxicated. (9) Mr. Haselman was not given an opportunity to telephone an attorney prior to his blood being drawn or tested. (10) At the time Mr. Haselman’s blood was drawn and tested, Mr. Haselman was conscious and alert. He was capable of either consenting, or refusing to submit, to a chemical analysis of his blood. He was capable of using a telephone and one was available for his use. (11) The device used to test Mr. Haselman’s blood was not checked for accuracy immediately before the test was performed. (12) The device used to test Mr. Haselman’s blood was not checked for accuracy immediately after the test was performed. (13) An additional chemical test of the same type was not performed at least thirty minutes after the initial test was performed.”

       See footnote 1, sentences seven through twelve of the stipulation.

       The constitution of Connecticut, article first, § 20, as amended, provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.”

       The constitution of the United States, amendment fourteen, § 1, provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

       The defendant cites 42 U.S.C. § 12102 of the Americans with Disabilities Act, which defines physical disability as “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment.”

       Because we find that the defendant’s injuries did not render him a member of the class of physically disabled pursuant to the Connecticut constitution, which affords greater protection to such persons than does the equal protection clause of the United States constitution; compare Daly v. DelPonte, 225 Conn. 499, 515, 624 A.2d 876 (1993) with Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 446, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985); we need not address the appellant’s equal protection claim under its federal counterpart.

       See footnote 1, sentences one through six of the stipulation.


text:
    Middlesex Hospital v. Town of Hamden et al.
    (11915)
    Foti, Landau and Heiman, Js.
    Argued November 4
    decision released December 14, 1993

      Patrick B. Kwanashie, assistant attorney general, with whom were Hugh Barber, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellant (defendant department of income maintenance).

      Thomas J. Riley, with whom was Robert D. Tobin, for the appellee (plaintiff).
   Heiman, J.

The defendant department of income maintenance (department) appeals from the judgment of the trial court reversing the department’s decision upholding the denial by the town of Hamden of general assistance medical aid (GAMA) to a patient, Mary Landino. Since we conclude that we cannot afford practical relief to the department, we dismiss the case as moot.

The following facts were found by the trial court. Mary Landino was a resident of the town of Hamden but lived at Barbara’s Rest Home in East Hampton. On November 20,1990, Landino was admitted to the plaintiff hospital. At that time, Landino was receiving supplemental social security benefits (SSI) of $386 a month. See 42 U.S.C. § 1381 et seq. She also was a title XIX Medicaid recipient. See 42 U.S.C. § 1396 et seq.; General Statutes § 17-134a et seq. She was discharged on December 10,1990. The hospital bill was $7964.80.

The hospital applied to have the bill paid by Medicaid. Medicaid denied the application because it concluded that Landino’s hospitalization was not medically necessary. On November 20,1990, the hospital applied for GAMA from East Hampton to cover the bill. See General Statutes (Rev. to 1991) § 17-272 et seq. On February 1,1991, East Hampton forwarded the application to Hamden. See General Statutes § 17-273 (b). On February 8, 1991, Hamden denied the plaintiff’s application because the services were eligible for payment under title XIX and were not eligible for payment by Hamden as GAMA. Hamden stated, in its denial, that services deemed “ineligible [sic]” for payment by title XIX were Ineligible for payment as GAMA.

The plaintiff then requested that the dispute be referred to the commissioner of income maintenance or the commissioner’s representative pursuant to General Statutes § 17-292 (c). The commissioner’s representative found that the hospital was not entitled to payment from Hamden because the patient did not appeal the initial denial of her Medicaid application pursuant to General Statutes (Rev. to 1991) § 17-274 (a).

On April 3, 1992, the plaintiff appealed the department’s decision to the trial court pursuant to General Statutes § 4-183. On November 4,1992, the trial court sustained the appeal and reversed the department’s decision. The trial court found that § 17-274; see footnote 5; did not require the applicant to appeal the denial of Medicaid benefits to be eligible for GAMA benefits but required only that the patient apply for the benefit.

On November 20, 1992, the department appealed from the trial court’s decision. The town did not appeal.

“Mootness applies to situations where events have occurred during the pendency of an appeal that make an appellate court incapable of granting practical relief through a disposition on the merits. . . . The standards governing mootness are well established. Because this court has no jurisdiction to render advisory opinions, no appeal can be decided on its merits in the absence of an actual controversy for which judicial relief can be granted.” (Citation omitted; internal quotation marks omitted.) Papagorgiou v. Anastopoulous, 29 Conn. App. 142, 146, 613 A.2d 853, cert. denied, 224 Conn. 919, 618 A.2d 527 (1992).

We are incapable of granting practical relief to the department by deciding the merits of this case. The judgment caused the town to be aggrieved since it required the town to certify the eligibility of Landino for GAMA. General Statutes (Rev. to 1991) § 17-292g. The town, if it desired to contest the judgment, could have appealed to this court within twenty days of the judgment. Practice Book § 4009. In a case with multiple parties, the appeal by only one party does not stay the liability of the nonappealing parties. Gruber v. Friedman, 104 Conn. 107, 112, 132 A. 395 (1926); Donnarumma v. Korkin, 97 Conn. 223, 224, 116 A. 178 (1922). Therefore, since the town did not appeal, it is bound by the trial court’s judgment.

After the town certifies the eligibility of Landino in accordance with the judgment, the commissioner of income maintenance will be obligated to pay directly to the hospital the cost of treatment provided to the patient. General Statutes (Rev. to 1991) § 17-292g. We cannot change the commissioner’s statutory liability to the hospital generated by the certification of the patient’s eligibility. Any disagreement by the commissioner to the certification by the town does not involve the hospital. That dispute is between the commissioner and the town because the commissioner’s liability is derivative from the town’s liability. Id. Thus, we can afford no practical relief to the commissioner and the case is therefore moot. See Papagorgiou v. Anastopoulous, supra.

The appeal is dismissed.

In this opinion the other judges concurred.

       The defendants are the town of Hamden and the Connecticut department of income maintenance. Only the department of income maintenance appealed from the trial court’s judgment.

       Since we conclude that this court lacks jurisdiction to hear the merits of the appeal, we do not reach the issues on appeal raised in the defendant’s brief.

       General Statutes § 17-273 (b) provides: “On and after April 1,1984, no town shall refuse to accept an application for general assistance or general assistance medical benefits because a person is deemed not to be a resident. In such a case, the town shall accept the application and contact the department of income maintenance. The department shall arrange to have the application transferred to the appropriate town of residence. If a dispute arises between the two towns as to liability for support, the dispute shall be referred to the commissioner of income maintenance in accordance with the provisions of section 17-292.”

       General Statutes § 17-292 (c) provides in pertinent part: “In case of dispute between any such hospital and any such town concerning the town’s obligation to pay for the hospitalization of any person receiving medical treatment or being supported and cared for in such hospital, or as to the amount of such obligation, the dispute shall be referred to the commissioner of income maintenance. . . . Said commissioner or a duly appointed representative shall hear the parties to any dispute referred to the commissioner under this subsection, after written notice to both parties. At such hearing before the commissioner or his representative, parties shall have the right of subpoena, to appear by counsel and to present such witnesses as they desire. Any party aggrieved by a decision or order issued by the commissioner or his representative pursuant to this subsection may appeal in accordance with the provisions of section 4-183.”

       General Statutes (Rev. to 1991) § 17-274 (a) provides in pertinent part: “If any person is entitled to any third party payment a town shall not be liable for the payment of any medical bill until an application has been completed on behalf of such person for such third party payment to which he is entitled, including private insurance, hospital or medical service corporation benefits, veterans’ benefits, Medicare and medical assistance pursuant to part IV of chapter 302.”

       General Statutes § 4-183 (a) provides: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal.”

       General Statutes (Rev. to 1991) § 17-292g provides: “The general assistance policy manual adopted pursuant to section 17-3f shall provide that upon determination by a town that a person who is hospitalized is eligible for or is receiving general assistance benefits, the selectman or the public official charged with the administration of general assistance in the town shall certify the person’s eligibility and the accuracy of the contents of the billing form to the commissioner of income maintenance. The commissioner of income maintenance shall pay the hospital directly for the cost of treatment provided to such person and shall charge the town for ten per cent of such cost in the form of an adjustment to the quarterly statement submitted by the town pursuant to subsection (b) of section 17-292. Such payments shall be made no earlier than the first day of the quarter following the quarter in which the bill was received by the department of income maintenance. When a subsequent audit of the town records shows that the town’s certification was submitted to the commissioner in error, ninety per cent of the charge shall be shown on the town’s quarterly reimbursement request as an adjustment due to the state pursuant to section 17-3a. The provisions of this section shall apply to cases in which hospital services for inpatient care are provided on or after October 1, 1986.” (Emphasis added.)

       Practice Book § 4009 provides: “The party appealing shall, within twenty days, except where a different period is provided by statute, from the issuance of notice of the rendition of the judgment or decision from which the appeal is taken file an appeal in the manner prescribed by Sec. 4012; but

        if within the appeal period any motion is filed which, if granted, would render the judgment or decision ineffective, as, for example, a motion to open the judgment or to set aside the verdict or for judgment notwithstanding the verdict, the period of time for filing an appeal shall commence from the issuance of notice of the decision upon the motion or the expiration of the time within which a remittitur is ordered filed.
      “If an application for waiver of fees, costs and security is filed pursuant to Sec. 4016 within the time for taking an appeal as described above or as extended pursuant to Sec. 4040 (a), the appeal period shall commence upon the issuance of notice of the decision on the application.
      “If the appeal in a criminal case is from a judgment of conviction, notice of the judgment shall be deemed to have issued when sentence is pronounced in open court. In a civil case, notice of the judgment shall be deemed to have issued when either the verdict is accepted in a jury case, or judgment is rendered in a non-jury case, in open court. If notice of the rendition of the judgment or decision is by mail, such notice shall be deemed to have been issued on the date it is mailed to the parties by the clerk.
      “The time for filing the appeal or for taking any of the steps necessary to prosecute or defend the appeal, as hereinafter provided, may be extended in accordance with the provisions of Sec. 4040.”


author: Dupont, C. J.

text:
    State of Connecticut v. Thomas Bush
    (11264)
    Dupont, C. J., O’Connell and Heiman, Js.
    Argued September 27
    decision released December 21, 1993

      Neal Cone, assistant public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and C. Robert Satti, Jr., assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

By substitute information, the state charged the defendant with the crimes of unlawful possession with intent to sell narcotics by a person who is not drug dependent in violation of General Statutes § 21a-278 (b) and conspiracy to commit conduct constituting a “violation of [General Statutes] Sections 21a-278 (b), 21a-277 (a) and (c)” in violation of General Statutes § 53a-48. The jury found the defendant guilty of both counts.

The defendant appeals from the judgment, alleging that the trial court improperly (1) admitted the evidence gathered from the issuance of two search warrants, (2) failed to charge the jury that it must unanimously determine which underlying crime or crimes the defendant conspired to commit, (3) used language in the jury instructions that favored the state, and (4) denied the defendant access to a state’s witness’ psychiatric records after an in camera inspection by the court.

I

The defendant claims that the evidence gathered from the issuance of two search warrants should be suppressed because the search warrant affidavits lacked probable cause. The trial court disagreed, as do we.

A magistrate issued four search warrants for three different locations: (1) Father Panik Village, building 9, apartment 210; (2) 79 Trowel Street, first and second floors; and (3) 202 Sheridan Street. The defendant claims that the evidence obtained from the searches of apartment 210 and the first floor of 79 Trowel Street was improperly admitted.

The affidavits for apartment 210 and the first floor of 79 Trowel Street contained various statements and allegations. The defendant allegedly paid the lessee of apartment 210, Michael Vines, for the use of the apartment to store, package, and distribute drugs and to stash money for his drug operation. The defendant allegedly used 79 Trowel Street to store and package drugs and to stock weapons for the drug operation. The 79 Trowel Street warrant was issued after the search of apartment 210, and its affidavit contained information obtained from the apartment 210 search.

The information in the warrant affidavits was provided primarily by a confidential informant and verified in part by other anonymous or confidential sources. When a search warrant affidavit is based on information provided by confidential informants, we apply the “totality of the circumstances” test to determine whether probable cause for the search exists. State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991). Under this standard, the informant’s basis of knowledge and reliability are relevant. Id., 552.

“When a search warrant affidavit is based on information provided to the police by confidential informants, the magistrate should examine the affidavit to determine whether it adequately describes both the factual basis of the informant’s knowledge and the basis on which the police have determined that the information is reliable. If the warrant affidavit fails to state in specific terms how the informant gained his knowledge or why the police believe the information to be trustworthy, however, the magistrate can also consider all the circumstances set forth in the affidavit to determine whether, despite these deficiencies, other objective indicia of reliability reasonably establish that probable cause to search exists.” Id., 544.

“Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred.” (Internal quotation marks omitted.) Id., 548. In determining whether probable cause exists, the magistrate must “make a practical, nontechnical decision whether, given all the circumstances set forth in the warrant affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Internal quotation marks omitted.) State v. Johnson, 219 Conn. 557, 563, 594 A.2d 933 (1991).

On review of a magistrate’s finding that probable cause existed for issuing a warrant, we must determine whether the affidavit presented a substantial factual basis for that conclusion. State v. Johnson, supra, 565; State v. Barton, supra, 552. In determining whether the affidavit provided such a basis, we can consider only the information that was actually in the affidavit presented to the magistrate. State v. Barton, supra, 548; State v. Anziano, 26 Conn. App. 667, 672, 603 A.2d 415 (1992). This court, however, views the information in the affidavit in the light most favorable to a magistrate’s probable cause determination. State v. Duntz, 223 Conn. 207, 216, 613 A.2d 224 (1992). If an affidavit does not provide a substantial factual basis for the probable cause finding, then the evidence or contraband seized pursuant to the warrant will be suppressed. State v. Barton, supra, 545.

The warrant affidavit for apartment 210 expressly states the informant’s bases of knowledge as being his personal observation of the packaging of narcotics in apartment 210 the night before the search warrant was issued, and his observation of narcotics in the apartment on numerous other occasions. The affidavit also indicated that the informant had been “involved” in the drug operation for some time. Thus, there was a substantial basis for the issuing magistrate to have found that the affidavit adequately described the bases of the informant’s knowledge.

The affidavit also contained facts that allowed for the inference that the information was reliable. First, the informant made a statement against his penal interest when he indicated that he had been “involved” in the drug operation. An admission of crime is an indication of reliability because people do not lightly render themselves liable to arrest and prosecution. Id., 551. Second, the police corroborated and verified some of the information provided by the informant. Independent police investigation that corroborates information provided by an informant creates an inference that the informant is reliable. State v. Rodriguez, 223 Conn. 127, 136, 613 A.2d 211 (1992); State v. Johnson, supra, 565; State v. Toth, 29 Conn. App. 843, 853, 618 A.2d 536, cert. denied, 225 Conn. 908, 621 A.2d 291 (1993). In this case, the informant stated that the drug traffickers operated out of apartment 210 by selling drugs in the doorway that leads to the apartment, and by resupplying themselves with drugs from the apartment. The affidavit indicated that the police had previously conducted a narcotics surveillance and made arrests for drug sales in the doorway leading to apartment 210. The affidavit also stated that the police had received numerous calls that the defendant was conducting a drug operation in the area of the apartment building where apartment 210 is located. This information was verified by three other confidential sources.

The defendant claims that, despite the admission of crime by the informant and the corroboration by the police as stated in the affidavit, the information is unreliable because the informant is a first time informant. This fact, however, does not necessarily make information less reliable. State v. Toth, supra, 853. “Were the police unable to rely on information obtained from first time informants, they would be deprived of an important resource in their criminal investigations.” Id. The affidavit for the apartment 210 warrant contained information that provided a substantial basis for the inference that the information was reliable.

The warrant affidavit relating to the first floor of 79 Trowel Street expressly states the informant’s bases of knowledge by indicating that the same informant, who had provided the information for the apartment 210 affidavit, had been present on numerous occasions when cocaine was packaged at 79 Trowel Street. The informant had also personally observed guns at 79 Trowel Street. Furthermore, the affidavit contained facts that allowed the issuing magistrate to infer that the information was reliable. As previously indicated, the 79 Trowel Street warrant was issued after the execution of the apartment 210 warrant, and its affidavit contained all of the same information from the same informant as the apartment 210 affidavit. Since we concluded that the trial court could have inferred that the information provided in the apartment 210 affidavit was reliable, the inference also applies to 79 Trowel Street.

The affidavit for 79 Trowel Street also contained additional information from which the trial court could have inferred the reliability of the informant. The affidavit indicated that the informant had provided information about apartment 210, which had been verified as accurate by the prior search of that apartment. See State v. Rodriguez, supra. Furthermore, the police, by independent investigation, corroborated a number of statements made by the informant. See State v. Toth, supra. The affidavit for 79 Trowel Street indicated that the informant had stated that 202 Sheridan Street was leased by Lori Smith, the defendant’s girlfriend, and that the defendant used several cars, including a white Toyota, Connecticut registration 718-GVK. The police confirmed, through other sources, that Smith rented 202 Sheridan Street and that the defendant lived there with her. The police discovered the white Toyota with registration 718-GVK parked in front of 202 Sheridan Street. The affidavit also indicated that the police had received calls that the defendant was selling drugs out of 79 Trowel Street.

Thus, since there is a substantial factual basis for finding that probable cause existed for issuing the warrants, we uphold the validity of the warrants, and conclude that the evidence obtained from the execution of the search warrants at apartment 210 and the first floor of 79 Trowel Street was properly admitted into evidence.

II

The defendant next claims that the trial court improperly failed to charge the jury that it must agree as to which underlying crime or crimes the defendant conspired to commit. In this case, the trial court did not instruct the jury that it must indicate which underlying crime or crimes the defendant had conspired to commit in order to return a verdict of guilty of conspiracy. Here, the state charged the defendant with conspiring to commit conduct in violation of three separate crimes. The defendant claims, under our analysis in State v. Toth, supra, that because the trial court failed to instruct the jury to indicate which crime or crimes the defendant had conspired to commit, the trial court could not know which offense or offenses the defendant was found guilty of conspiring to commit. Because the penalty for conspiracy is determined by the penalty for the most serious offense that is the object of the conspiracy; General Statutes § 53a-51; the defendant contends that a criminal sentence cannot be imposed without knowing what is the most serious offense of the conspiracy. The defendant did not object at trial to the conspiracy jury instruction on the grounds he now claims. He seeks to prevail, however, under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

Under Golding, a defendant can prevail on an unpreserved claim of constitutional error “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id., 239-40; State v. Nixon, 32 Conn. App. 224, 232, 630 A.2d 74 (1993). In this case, the first two prongs of Golding are satisfied. See State v. Toth, supra. We must next determine whether the alleged constitutional violation clearly exists and deprived the defendant of a fair trial.

In State v. Toth, supra, we concluded that “in the absence of an instruction to the jury that it must determine beyond a reasonable doubt which of several object offenses the defendant conspired to commit,” a jury would be misled. Id., 864. When a jury is misled in this manner and returns a general verdict of guilty of conspiracy, it is impossible for the trial court to know what underlying crime or crimes the defendant conspired to commit. Id., 863. State v. Toth, supra, is based primarily on the fact that if a defendant is convicted of one count of conspiracy, even a conspiracy involving an agreement to conspire to commit more than one crime, there can be only one criminal sentence. Id., 858-59. The sentence is determined pursuant to General Statutes § 53a-51, which provides that the penalty for conspiracy is “ ‘the same grade and degree as the most serious offense which is . . . [the] object of the conspiracy.’” As a result, we concluded in State v. Toth, supra, that a trial court cannot properly impose a penalty without knowing the most serious crime of the conspiracy of which the jury found the defendant guilty. Id., 861.

The circumstances in this case are similar to those in State v. Toth, but the two cases are not identical. In Toth, supra, the defendant was found guilty of conspiracy to commit any one or more of three crimes, but he was not found guilty of the commission of the one underlying crime with which he was charged. In this case, however, the defendant was found guilty of conspiracy to commit any one or more of three crimes, and guilty of the commission of the one underlying crime with which he was charged. The underlying crime of which the defendant was convicted is the most serious of the three underlying crimes of the conspiracy charge. In State v. Toth, supra, we concluded in dicta that if the defendant had been convicted of both conspiracy and the most serious underlying substantive offense, then it might have been reasonable for the trial court to have concluded that the jury also found the defendant guilty of conspiracy to commit that underlying offense. Id., 863-64.

A defendant can be guilty of a substantive crime and not guilty of conspiring to commit that substantive crime. Conversely, a defendant can be not guilty of a substantive crime and guilty of conspiring to commit the substantive crime. “Conspiracy has long been recognized as an offense separate and distinct from the commission of the substantive offense.” State v. Hooks, 30 Conn. App. 232, 241, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993), citing In re Luis R., 204 Conn. 630, 637, 528 A.2d 1146 (1987). “The commission of the substantive offense and a conspiracy to commit it are separate and distinct crimes. . . . The crime of conspiracy is dependent on clear principles, and has characteristics and ingredients which separate it from all other crimes.” (Citations omitted; internal quotation marks omitted.) In re Luis R., supra; State v. Hooks, supra.

The jury could have found that the defendant conspired to commit conduct in violation of General Statutes § 21a-277 (a) or § 21a-277 (c) or both, but did not conspire to commit a violation of General Statutes § 21a-278 (b), and then determined that he committed the substantive offense in violation of § 21a-278 (b). Under that story line, it would not be true that the jury found the defendant guilty of both a violation of § 21a-278 (b) and conspiracy to commit a violation of § 21a-278 (b). The trial court would then find itself in the same dilemma as in Toth of not knowing what sentence should be imposed because the penalties for violations of §§ 21a-277 (a) and 21a-277 (c) differ from the penalty for a violation of § 21a-278 (b).

Furthermore, because the jury was not instructed that it must determine whether the defendant was guilty of conspiring to commit one, two, or all three of the underlying crimes, it is reasonably possible that the jury was misled. It could have found the defendant guilty of conspiracy without finding that the defendant conspired to commit at least one of the three underlying crimes because it could have concluded that the defendant conspired to commit a hybrid crime, which combined elements from each underlying crime, but did not contain all of the elements of any one of them.

We stated in State v. Toth, supra, that “[i]n reviewing a constitutionally based challenge to the court’s instructions to the jury, we must examine the charge as a whole to determine whether it is reasonably possible that the jury was misled by the challenged instruction. . . . [A]n error in the charge requires reversal only if, in the context of the whole instruction, there is a reasonable possibility that the jury was misled in reaching its verdict.” (Citations omitted; internal quotation marks omitted.) Id., 864. Here, it is reasonably possible that the jury was misled because it could have reached varying conclusions regarding the conspiracy conviction. As a result, we conclude, as we did in State v. Toth, supra, “that in the absence of an instruction to the jury that it must determine beyond a reasonable doubt which of several object offenses the defendant conspired to commit, the jury was misled by the charge.”

Because it is reasonably possible that the charge as a whole, and the conspiracy charge in particular, misled the jury, the defendant was deprived of a fair trial, and must prevail under Golding. State v. Toth, supra, 858. When, as here, there is a reasonable possibility that the jury was misled, it is mandated that the judgment of conviction be reversed and the case be remanded for a new trial. Id., 864.

Ill

The defendant next claims that certain jury instructions regarding the jury’s duty violated the defendant’s constitutional rights because the instructions (1) were unfairly balanced in favor of conviction, and (2) undermined the presumption of innocence and diluted the state’s burden of proof. The defendant made no objection at trial to the instructions and seeks to prevail under State v. Golding, supra. We conclude that the defendant’s claims are unavailing.

The defendant contends that the language in the instruction was unfairly balanced in favor of conviction because it gave the jurors the impression that they should be firm and strong-minded and should act as “sworn officers of the court” and as “an arm of the court” when deciding to convict, but not when deciding to acquit. According to the defendant, the “language implied that the jurors would be shirking their responsibilities if they voted to acquit.”

While we conclude that “it would be preferable for a trial court either to omit those references entirely or frame the instructions so that the laudatory references are included with respect to both jury functions— acquittal as well as conviction”; State v. Walton, 227 Conn. 32, 63, 630 A.2d 990 (1993); we find that the defendant’s claim is controlled by the recent decision in State v. Walton, supra, which considered a challenge to the same jury instruction language as in this case. In State v. Walton, supra, 65, the Supreme Court stated that a claim of instructional error could not prevail under Golding “in an absence of a showing that the instruction was likely to be misunderstood by the jurors as an admonition that they would be shirking their duty by acquitting.” Here, the passage challenged by the defendant is part of a section of the jury charge that instructed the jury to view the evidence carefully and objectively, and to render a verdict based on its consideration of the evidence and the law. We conclude that the charge as a whole did not mislead the jury regarding its duty, and, thus, the defendant cannot prevail under Golding.

The defendant’s next claim, that the trial court undermined the defendant’s presumption of innocence and diluted the state’s burden of proof, is based on the following passage: “But you must keep in mind that [the presumption of innocence and the burden of proof are] made to protect the innocent, not the guilty.”

This claim is disposed of by the recent decisions in State v. Walton, supra, 67, and State v. Stanley, 223 Conn. 674, 695-96, 613 A.2d 788 (1992). It is well established that the challenged jury instructions regarding the presumption of innocence and the burden of proof “are the same or similar to jury instructions that previously have been approved. . . (citations omitted; internal quotation marks omitted) State v. Stanley, supra, 695; provided that these instructions, when considered in the context of the entire jury charge, do not undermine the presumption of innocence or dilute the burden of proof. Id., 696. The jury charge in this case, when considered in its entirety, adequately informed the jury regarding the presumption of innocence and the burden of proof.

IV

The defendant also claims that the trial court improperly denied the defendant access to the psychiatric records of a state’s witness. While the defendant preserved this claim by objecting to the trial court’s ruling, we conclude that the defendant’s challenge is unavailing.

The standard for determining whether a defendant may obtain access to a witness’ psychiatric records is well established. If a defendant makes a preliminary showing that his ability to cross-examine a witness would likely be impaired without access to the witness’ psychiatric records, and the witness consents to an in camera inspection of the records, then the trial court must determine “whether the records are especially probative of the witness’ capacity to relate the truth or to observe, recollect and narrate relevant occurrences.” (Emphasis added.) State v. D’Ambrosio, 212 Conn. 50, 58, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990); see also State v. McMurray, 217 Conn. 243, 257, 585 A.2d 677 (1991). “If the court discovers no probative and impeaching material, the entire record of the proceeding must be sealed and preserved for possible appellate review. . . . Once the trial court has made its inspection, the court’s determination of the defendant’s access to the witness’ records lies in the court’s sound discretion, which we will not disturb unless abused.” (Citations omitted.) State v. D’Ambrosio, supra, 58-59; see also State v. McMurray, supra, 257-58.

In this case, the defendant requested an in camera inspection of the psychiatric records of Michael Vines, a witness for the state who the defendant alleged is mentally retarded and has difficulty distinguishing between the concepts of “true and false.” The defendant claimed that the records contained information especially probative of the witness’ capacity to relate and comprehend the truth. The trial court conducted an in camera inspection of the psychiatric records, and concluded that the witness “understands the duty to tell the truth. . . . [TJhere is nothing in the records presented that would indicate anything to the contrary or relate in any way to his credibility and there is nothing in the records that would require that they be turned over to the defendant.”

Our review of the records revealed no information relating to the witness’ “ability to comprehend, know or correctly relate the truth . . . .” State v. D’Ambrosio, supra, 58. Since there is no information in the psychiatric records that would have aided the defendant in his cross-examination of the witness, we conclude that the trial court did not abuse its discretion in denying the defendant access to the records.

The judgment is reversed as to the conviction of conspiracy only and the case is remanded for a new trial on the second count of the information.

In this opinion the other judges concurred.

       A defendant must have a legitimate expectation of privacy in the area authorized to be searched by a warrant in order to challenge whether probable cause exists for the issuance of the warrant. State v. Rodriguez, 223 Conn. 127, 132, 613 A.2d 211 (1992). “The determination of whether the defendant had a reasonable expectation of privacy in the area searched requires a two part factual inquiry: first, whether the defendant has exhibited an actual subjective expectation of privacy; and second, whether that expectation is one that society is prepared to recognize as reasonable.” Id. The defendant bears the burden of establishing the facts necessary to demonstrate a reasonable expectation of privacy. State v. McLucas, 172 Conn. 542, 546, 375 A.2d 1014, cert. denied 434 U.S. 855, 98 S. Ct. 174, 54 L. Ed. 2d 126 (1977).
      At trial, the defendant claimed that standing could be established from the four comers of the affidavits. The state disagreed. The trial court ruled, “without even reaching the issue of standing,” that there was probable cause for the warrants. We conclude that a warrant affidavit can establish the facts necessary to demonstrate a reasonable expectation of privacy. See State v. Rodriguez, supra, 132-33. Here, the affidavits for apartment 210 and 79 Trowel Street established, among other things, that the defendant used apartment 210 as a business location and that his father owned 79 Trowel Street. At oral argument on appeal, both the state and the defendant agreed that this court need not review the trial court’s failure to determine whether the defendant had standing unless we found infirmity with the warrants. For the purposes of this appeal, we assume standing exists.

       Separate search warrants were issued for the first and second floors of 79 Trowel Street.

       The defendant allegedly lived at 202 Sheridan Street with his girlfriend, Lori Smith, who rented the apartment.

       The trial court suppressed the evidence obtained from the search of the second floor of 79 Trowel Street, and the defendant does not challenge the search of 202 Sheridan Street.

       Dealers for the drug operation allegedly sold drugs out of the doorway leading to apartment 210 and resupplied themselves with drugs from the apartment.

       The defendant’s father owned 79 Trowel Street. An alleged coconspirator, David Hawkins, listed 79 Trowel Street as his home address.

       General Statutes § 21a-278 (b) provides in pertinent part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance . . . except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. ..." (Emphasis added.)
      General Statutes § 21a-277 (a) provides in pertinent part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance . . . except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined . . . and for a second offense shall be imprisoned not more than thirty years and may be fined . . . and for each subsequent offense, shall he imprisoned not more than thirty yearsand may be fined . . . .” (Emphasis added.)
      General Statutes § 21a-277 (c) provides: “No person shall knowingly possess drug paraphernalia in a drug factory situation as defined by subdivision (20) of section 21a-240 for the unlawful mixing, compounding or otherwise preparing any controlled substance for purposes of violation of this chapter.”

        State v. Toth, 29 Conn. App. 843, 618 A.2d 536 (1993), was decided after the trial court had rendered judgment in this case.

       In this case, the underlying crimes of the conspiracy charge have varying penalties.

       The defendant objected to the jury charge on the ground that the charge was “vague and unclear.” We need not consider a claim on appeal unless it was distinctly raised at trial or arose subsequent to trial. Practice Book § 4185. “This court reviews rulings solely on the ground on which the party’s objection is based.” State v. Manning, 162 Conn. 112, 118, 291 A.2d 750 (1971); State v. Busque, 31 Conn. App. 120, 127, 623 A.2d 532, cert. granted on other grounds, 226 Conn. 910, 628 A.2d 984 (1993).

       This case is not subject to a harmless error analysis. See State v. Suplicki, 33 Conn. App. 126, 634 A.2d 1179 (1993); State v. Toth, 29 Conn. App. 843, 864, 618 A.2d 636 (1993).

       The defendant challenges the following jury instruction: “The state of Connecticut and its people, on the other hand, look to you as the sworn officers of the court to deal with this case fairly, firmly, and honestly as strong-minded men and women with the interests placed in your hands and 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. It is the sworn duty of the courts and jurors to safeguard the rights of persons charged with crime by respecting the presumption of innocence which the law imputes to every person so charged and by making the state meet its burden of proving guilt beyond a reasonable doubt. But you must keep in mind that this rule of law is made to protect the innocent, not the guilty.”

       Instructional errors regarding the defendant’s presumption of innocence and the state’s burden of proof are constitutional in nature. State v. Adams, 225 Conn. 270, 289, 623 A.2d 42 (1993).

       The defendant also challenges, under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), that in camera inspections by judges do not adequately protect a defendant’s rights under article first, § 8, of the Connecticut constitution. Our Supreme Court has indicated that it will not address whether a defendant’s right to impeach a state’s witness through the use of psychiatric records arises out of the confrontation clause of the sixth amendment or the due process clause of the fourteenth amendment to the federal constitution, or the confrontation or due process clauses of the Connecticut constitution “until we have a case in which it would make a difference or until the United States Supreme Court offers us further guidance.” State v. D’Ambrosio, 212 Conn. 50, 57 n.5, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990); see also State v. Howard, 221 Conn. 447, 458, 604 A.2d 1294 (1992); State v. McMurray, 217 Conn. 243, 256 n.13, 585 A.2d 677 (1991). The defendant in this case has not provided us with any basis for determining that the source of the right would affect the outcome, has not cited any United States Supreme Court authority that would offer further guidance, and has not provided us with a separate analysis of his Connecticut constitutional claim. We, therefore, decline to review this claim.

       A trial court must balance a witness’ statutory privilege to keep psychiatric records confidential against a defendant’s constitutional right to cross-examine a state’s witness. State v. McMurray, 217 Conn. 243, 256, 585 A.2d 677 (1991). General Statutes § 52-146e (a) provides that, with certain exceptions, “[a]ll communications and records as defined in section 52-146d shall be confidential . . . .” General Statutes § 52-146d (2) provides that “ ‘[c]ommunications and records’ means all oral and written communications and records thereof relating to diagnosis or treatment of a patient’s mental condition between the patient and a psychiatrist . . . .”

       Psychiatric evaluations of the witness were conducted to determine whether he was competent to stand trial in his own criminal case.

       Outside the presence of the jury, the witness, Vines, was asked by both the defendant and the state whether he knew what it meant to tell the truth. The witness responded, “That means you tell the truth. If you tell a lie you go to jail. . . . The truth means you tell the truth. When you lie you get in trouble.” When asked by defense counsel whether he would lie on the witness stand, the witness responded, “No.”