text:
    State of Connecticut v. Edward Gilchrist
    (8967)
    Spallone, Daly and Landau, Js.

      Argued March 20
    decision released June 25, 1991

      Suzanne Zitser, assistant public defender, with whom, on the brief, was G. Douglas Nash, 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 John C. Smriga, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a, of two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), and of assault in the second degree in violation of General Statutes § 53a-60 (a) (2). The charges against the defendant arose from two separate incidents. At the close of the evidence, the trial court denied the defendant’s motion for judgment of acquittal. On appeal, the defendant claims that the trial court improperly denied his motion because (1) the state failed to offer sufficient evidence to support the defendant’s conviction of robbery in the first degree in connection with the 2 a.m. incident because it failed to prove the essential element of a deadly weapon, (2) the state failed to offer sufficient evidence that the defendant committed the 2 a.m. assault with a deadly weapon as that term is defined in General Statutes § 53a-3 (6), (3) the trial court improperly instructed the jury on attempt liability under § 53a-49 (a) (1) where there was no evidence to support such an instruction, thereby violating his constitutional right to be convicted only upon proof beyond a reasonable doubt, (4) the state failed to prove beyond a reasonable doubt that the defendant possessed the requisite intent with respect to the 4 a.m. robbery, and (5) the trial court improperly instructed the jury on General Statutes § 53a-133 (2) with respect to the 4 a.m. robbery where there was no evidence to support such a charge. We disagree with the defendant’s claims and affirm the defendant’s convictions.

There was evidence adduced at trial to support the facts as follows. On September 17,1987, at about 1:30 a.m., the victim, Darryl Givens, left a friend’s house and walked to a convenience store to purchase cigarettes. As Givens was about to enter the store, the defendant, Edward Gilchrist, approached and asked him if he had any drugs. Givens, who recognized the defendant from a prior encounter where they had discussed buying drugs, told the defendant to wait a minute and that he could get him some cocaine. Givens proceeded into the store followed by the defendant. Before Givens could make the purchase of cigarettes, he was hit in the face with a gun wielded by the defendant, which resulted in lacerations under Givens’ chin and over his eye and in the loss of a tooth. After hitting Givens, the defendant took him to an alley behind the store where he took approximately $15 from one of Givens’ pockets. At this point, the victim saw the gun which he described as a black gun which the defendant held in one hand.

Givens, after returning to his friend’s house, walked home with another friend. Upon his arrival home, he asked his sister, Wanda Givens, if he could borrow her car to drive himself to the hospital. She would not allow him to borrow her car and he refused her offer to drive him to the hospital. Wanda saw the cuts on her brother’s face and noticed the missing tooth. Givens also told her that he had been hit in the face with a gun. Givens decided to walk to Bridgeport Hospital but, upon arriving at the hospital, he remembered that there was a warrant out for his arrest because of a violation of probation. He feared that the hospital authorities would notify the police who in turn would discover the outstanding warrant, and left the hospital. At approximately 4 a.m., he called his sister who agreed to pick him up and drive him to Park City Hospital. She drove to the pay phone from which Givens called, and picked up her brother and another man. On the way to the hospital, Givens asked his sister to stop so he could purchase some cigarettes. She stopped at the same convenience store where the earlier incident involving Givens and the defendant had occurred. As she waited for her brother, Wanda observed the defendant, whom she recognized as a person she had seen before, walk past her car.

As Givens approached his sister’s car, he was confronted by the defendant who asked him if he, Givens, was looking for the defendant. Givens did not answer and kept walking to the car. Wanda heard the defendant call to her brother. Her brother asked her to open the rear door on her side of the car, which she did. The defendant then grabbed the car door effectively preventing the victim from getting completely into the car. The victim told his sister that the defendant had robbed him earlier and to drive off. The defendant told Wanda that he would shoot her if she tried to drive away. While pointing a gun at Givens, the defendant went through his pockets and took money from a back pocket. The defendant then pointed the gun at Givens and both Givens and his sister heard a click. The defendant pulled the trigger again and shot the victim in the mouth. The gun used by the defendant was described as black with a barrel six to six and one-half inches long. Wanda heard the shot and observed the defendant running away. She drove her brother to Bridgeport Hospital where it was learned that the bullet from the defendant’s gun went through the victim’s upper front teeth knocking them out, went through the roof of his mouth and finally became imbedded in the base of his skull. Had Givens not received immediate emergency treatment he would have died. The defendant was subsequently arrested, tried by a jury and convicted.

The defendant’s first two claims assert that there was insufficient evidence to prove beyond a reasonable doubt that the defendant used a “deadly weapon” while committing the 2 a.m. robbery and assault. General Statutes § 53a-3 (6) defines a deadly weapon as “any weapon, whether loaded or unloaded, from which a shot may be discharged . . . .”

“ ‘ “Appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task: We must first review the evidence construing it in the light most favorable to sustaining the trial court’s verdict. . . . ‘ “ ‘We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt .... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.’”’ . . . (Citations omitted.) State v. Allen, 216 Conn. 367, 380-81, 579 A.2d 1066 (1990); State v. Anderson, 212 Conn. 31, 44, 561 A.2d 897 (1989).

In order to find that the gun used in the 2 a.m. robbery and assault was operable, as defined in § 53a-3 (6), the jury would be required to infer that the gun used in the 2 a.m. robbery was the same one used by the defendant when he fired the gun into the victim’s mouth causing him life threatening injuries. We find that there was sufficient evidence presented to the jury from which it could have reasonably and logically drawn such an inference. Wanda Givens described the gun fired at 4 a.m. as black and about six to six and one-half inches long. The victim described the gun used during the 2 a.m. robbery as black and indicated that it was approximately the same size as that described by his sister. In addition, the jury was aware that both crimes involved the defendant in possession of a black handgun, that the crimes took place at the same location on the same evening and only two hours apart. Whether such evidence is sufficient is within the province of the jury to decide. State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983). It is also for the jury to determine the credibility and the effect to be given the testimony. State v. Grant, 177 Conn. 140, 142, 411 A.2d 917 (1979). Moreover, it is the jury’s right to consider evidence, draw logical deductions and make reasonable inferences from facts proven. State v. Schoenbneelt, 171 Conn. 119, 126, 368 A.2d 117 (1976). The jury’s conclusion in this case, that the gun used in the 2 a.m. robbery and assault was operable, is a logical, rational and reasonable inference lawfully drawn from the evidence. Accordingly, we reject the defendant’s first two claims.

In his third claim, the defendant argues that the trial court improperly instructed the jury on both subdivisions of § 53a-49 (a). He claims that these two subdivisions are conceptually distinct and that his conviction violated his constitutional right to be convicted only upon proof beyond a reasonable doubt. This claim is also without merit.

“There are two essential elements of an attempt under this statute. They are, first, that the defendant had a specific intent to commit the crime as charged, and, second, that he did some overt act adapted and intended to effectuate that intent.” State v. Mazzadra, 141 Conn. 731, 734, 109 A.2d 873 (1954). “ ‘ “[T]he attempt is complete and punishable, when an act is done with intent to commit the crime, which is adapted to the perpetration of it, whether the purpose fails by reason of interruption . . . or for other extrinsic cause.” . . . ’ ” State v. Green, 194 Conn. 258, 276, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985); State v. Wilson, 30 Conn. 500, 506 (1862). Both § 53a-49 (a) (1) and (2) require that the state prove both intent and conduct to sustain a conviction. On the evidence, the jury could reasonably have found that the defendant’s intentional conduct, which was beyond mere preparation, was to accomplish a result that would constitute the crime charged inasmuch as the circumstances for doing so were, in his belief, accommodating to his criminal purpose, thereby satisfying § 53a-49 (a) (1). Furthermore, the evidence was sufficient for the jury reasonably to have found that the defendant’s conduct constituted a substantial step toward the commission of the crime, thereby satisfying § 53a-49 (a) (2). See, e.g., State v. Green, supra, 275-77. Once the jury found these elements proven beyond a reasonable doubt, their duty was complete and they were not required to designate a particular statutory section. The evidence that the defendant shot the victim in the mouth adequately supports the jury’s conclusions that the defendant shot the victim with the intent to murder him.

The defendant’s fourth claim, that there was insufficient evidence to find him guilty of the 4 a.m. robbery, is wholly without merit. The evidence shows that, while holding the victim at gun point, the defendant went through the victim’s pockets until he found money and then took it. The sufficiency of the evidence analysis stated above in our review of the defendant’s first and second claims is equally applicable here. Construing the evidence in the light most favorable to sustaining the jury’s verdict, we find that the jury could reasonably have concluded that the defendant was guilty of the 4 a.m. robbery.

Finally, the defendant argues that there was insufficient evidence to find him guilty of the 4 a.m. robbery under either subdivision of General Statutes § 53a-133. The trial court in explaining robbery to the jury read to them both subdivisions (1) and (2) of § 53a-133. Again there was evidence before the jury to support a conviction under both subdivisions. Wanda Givens, under threat of being shot, was ordered not to drive away from the scene by the defendant which forced her to “engage in other conduct which aids in the commission of the larceny.” General Statutes § 53a-133 (2). The victim was also under gunpoint and threats, which prevented or overcame his resistance to the taking of his property, the money from his back pocket. General Statutes § 53a-133 (1). Our analysis of sufficiency of evidence claims, utilized in our review of the defendant’s first, second and fourth claims, is equally applicable here. There was sufficient evidence to support the defendant’s conviction of robbery in connection with the 4 a.m. incident. See, e.g., State v. Scott, 20 Conn. App. 513, 517, 568 A.2d 1048, cert. denied, 214 Conn. 802, 573 A.2d 316 (1990); see also State v. John, 210 Conn. 652, 688, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989).

In sum, the defendant’s assertions with regard to sufficiency of the evidence, set forth in his first, second, fourth and fifth claims fail because the evidence supports the verdicts. The defendant’s third claim also fails because the trial court’s charge on attempt was proper and in accordance with applicable law.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-49 provides in relevant part: “criminal attempt: sufficiency of conduct; renunciation as defense, (a) A person is guilty of attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”


source: Caselaw Access Project

author: Spallone, J. Dupont, C. J.,

license: Public Domain

text:
    Edward Morin v. Bell Court Condominium Association, Inc.
    (9241)
    (9260)
    Dupont, C. J., Sfallone and Landau, Js.

      Argued March 18
    decision released June 25, 1991

      John A. Blazi, for the appellant (named plaintiff).

      Ralph G. Eddy, for the appellee (defendant).
   Spallone, J.

The plaintiff appeals from the judgment of the trial court rendered in favor of the defendant after the court granted the defendant’s motions to set aside the jury’s verdict and for judgment notwithstanding the verdict. On appeal, the plaintiff claims that the trial court (1) improperly refused to instruct the jury to determine whether the plaintiff was an invitee or a licensee, (2) improperly concluded that there was insufficient evidence to sustain the verdict, and (3) applied an improper standard of law regarding constructive notice of the plaintiff’s presence on the premises to the motion to set aside the verdict. We affirm the judgment of the trial court.

The evidence that was introduced at trial indicates the following. At the time of the incident, the plaintiff was an East Hartford police officer. The defendant, Bell Court Condominium Association, Inc., is the representative body of a condominium complex. Ten Bell Court is a three story section of the condominium complex with two apartments on each floor and is served by a front and rear common hallway and staircase.

On May 13,1986, the plaintiff responded to a radio dispatch warning of a fire at Bell Court. Upon arriving at the scene, the plaintiff entered the rear common entrance and, while in the process of evacuating apartments on the three floors of 10 Bell Court, fell while descending the common staircase. A stairway defect caused the plaintiff’s fall.

At the conclusion of the evidence, the trial court instructed the jury as to the duty owed by a possessor of land to a licensee. The plaintiff’s counsel objected to the charge, maintaining that the determination of the plaintiff’s status as a licensee was a factual issue that should be decided by the jury. The trial court overruled the objection and the plaintiff took an exception.

The jury returned a general verdict for the plaintiff. The defendant filed a motion to set aside the verdict and, after a hearing, the trial court granted the defendant’s motion on the ground that there was no evidence on which the jury could have reasonably concluded that the defendants knew or should have known of the plaintiff’s presence on the premises at the time and place of the incident.

The plaintiff first claims that the trial court improperly instructed the jury that the status of the police officer plaintiff was that of a licensee. The plaintiff asserts that the question of the police officer’s status was one of fact for the jury to determine. We disagree.

“Ordinarily, the status of one who sustains injury while upon the property of another is a question of fact. Dickau v. Rafala, 141 Conn. 121, 124, 104 A.2d 214 [1954]; Girard v. Kabatznick, 128 Conn. 520, 525, 24 A.2d 257 [1942]; Knapp v. Connecticut Theatrical Corporation, 122 Conn. 413, 417, 190 A. 291 [1937]. Where, however, the facts essential to the determination of the plaintiff’s status are not in dispute, a legal question is presented. Ward v. Avery, 113 Conn. 394, 396, 155 A. 502 [1931]; Rooney v. Woolworth, 74 Conn. 720, 723, 52 A. 411 [1902]; Arthur v. Standard Engineering Co., 193 F.2d 903, 906 [D.C. Cir. 1951], cert. denied, 343 U.S. 964, 72 S. Ct. 1057, 96 L. Ed. 1361 [1952].” Roberts v. Rosenblatt, 146 Conn. 110, 112-13, 148 A.2d 142 (1959); see also Moonan v. Clark Wellpoint Corporation, 159 Conn. 178, 185, 268 A.2d 384 (1970). The essential facts in this case are that the plaintiff was a member of the East Hartford police department, the defendants were property owners within East Hartford, and the plaintiff entered upon that property in the performance of a public duty in response to a fire alarm and was injured while upon the premises owing to an alleged defect therein.

On the basis of these facts, the court properly instructed the jury that, as a matter of law in Connecticut, the plaintiff, a police officer who entered upon the premises in the performance of a public duty, occupied a status akin to that of a licensee and that the defendants owed him no greater duty than that due a licensee. Furstein v. Hill, 218 Conn. 610, 623-24, 590 A.2d 939 (1991); Roberts v. Rosenblatt, supra, 113; Carfora v. Globe, Inc., 5 Conn. App. 526, 500 A.2d 958, cert. denied, 198 Conn. 804, 503 A.2d 1186 (1985); State v. Plummer, 5 Conn. Cir. Ct. 35, 38, 241 A.2d 198 (1967); 2 Restatement (Second), Torts § 345, comment c.

In order to establish liability as to a licensee, three essential elements must be present: (1) that the defendant knew of the presence of the plaintiff; (2) that it thereafter failed to exercise reasonable care to refrain from actively subjecting the plaintiff to danger or to warn him of a dangerous condition of which it knew and of which it could not reasonably assume the licensee knew or which by reasonable use of his faculties would observe; and (3) that such failure constituted the proximate cause of the plaintiffs injuries. Hennessey v. Hennessey, 145 Conn. 211, 213, 140 A.2d 473 (1958). “The duty which a licensor owes to a licensee on the licensor’s premises does not arise where there is no actual knowledge on the part of the licensor of the licensee’s presence or where there are no circumstances from which such knowledge could be imputed to the licensor. See Haffey v. Lemieux, 154 Conn. 185, 189, 224 A.2d 551 (1966); Lubenow v. Cook, [137 Conn. 611, 614, 79 A.2d 826 (1951)]; Ward v. Avery, 113 Conn. 394, 397, 155 A.2d 502 [1931].” Corcoran v. Jacovino, 161 Conn. 462, 468, 290 A.2d 225 (1971). There was no evidence adduced at trial that the defendant had actual knowledge of the plaintiff’s presence on the premises prior to the accident. In order for the plaintiff to prevail, therefore, the evidence must show that the circumstances were such that the knowledge of the plaintiff’s presence could be imputed to the defendant.

Such circumstances are sufficient to impute knowledge of presence to the defendant only where they are “the equivalent of actual knowledge.” Corcoran v. Jacovino, supra. This equivalent arises where the defendant could have and should have reasonably anticipated the plaintiff’s presence on the premises because of the regular pattern of such presence at the approximate time of day and place of the injury as, for example, where a mailman delivers mail each day. Id. The plaintiffs presence thus becomes reasonably predictable and forseeable. See also Derby v. Connecticut Light & Power Co., 167 Conn. 136, 142, 355 A.2d 244 (1974), cert. denied, 421 U.S. 931, 95 S. Ct. 1659, 44 L. Ed. 2d 88 (1975); Haffey v. Lemieux, supra.

Although there was testimony that the plaintiff had been on the premises in the past, as had other police officers, in response to tenants’ complaints, this knowledge is not imputable to the defendant. In order to charge the defendant with knowledge of the plaintiff’s presence, either actual or constructive, the evidence must show that the plaintiff had used a particular portion of the premises with such reasonable regularity that there was a predictable pattern of previous use and that the jury could find from such evidence that the defendant had the equivalent of actual knowledge of the plaintiff’s presence in the stairwell at the approximate time he was there. Corcoran v. Jacovino, supra. Unless there is an historical pattern of prior usage, that is, usage with reasonable regularity as a particular place and at an approximate time, then the trier of fact cannot find that the plaintiff’s appearance on the premises and his use of the premises has become reasonably predictable. Haffey v. Lemieux, supra, 188-89. Although the evidence indicated that the plaintiff and other officers had come to the premises on several occasions, the police calls did not come in any particular pattern or with any particular regularity. Accordingly, the circumstances are insufficient in this case to impute the knowledge of the plaintiff’s presence at the time and the place of the injury to the defendant.

The plaintiff asserts that the trial court should have applied a broader standard of constructive knowledge in reviewing the defendant’s motion to set aside the verdict, allowing recovery if the plaintiff or some other member of the public regularly passed over the premises. The trial court, however, followed applicable law in determining the scope of constructive knowledge as applied to this case.

Accordingly, we hold that in setting aside the verdict and in rendering judgment for the defendant notwithstanding the verdict, the trial court acted correctly and in accordance with applicable law.

The judgment is affirmed.

In this opinion Landau, J., concurred.

Dupont, C. J.,

dissenting. I respectfully disagree with the decision of the majority affirming the granting of the defendant’s motion to set aside the jury’s general verdict in favor of the plaintiff and the rendering of judgment for the defendant notwithstanding verdict. The trial court rendered judgment for the defendant on the basis that there was no evidence from which the jury could have reasonably concluded that the defendant had actual or constructive knowledge of the plaintiff’s presence on the premises at the time and place of the accident. I do not disagree that as a matter of law the plaintiff was a licensee, and, that, therefore, the court was correct in not allowing the jury to decide the status of the plaintiff at the time of his injury on the defendant’s premises. Furstein v. Hill, 218 Conn. 610, 590 A.2d 939 (1991); Roberts v. Rosenblatt, 146 Conn. 110, 112-13, 148 A.2d 142 (1959); 2 Restatement (Second), Torts § 344.1 do not agree, however, that the standard used by the trial court in its memorandum of decision to establish constructive notice of the plaintiff on the defendant’s premises was correct because I believe it is too restrictive. Further, I believe that the standard used by the trial court in its charge, and from which the court deviated in its memorandum, was correct. Because, in my opinion, the charge was correct, and because the evidence was sufficient for the jury to find that the defendant did have constructive notice of the plaintiff’s presence, I conclude that the court should not have set aside the verdict.

The defendant in this case, a condominium association, maintained the common areas of Bell Court Condominiums in East Hartford. On May 13, 1986, at approximately 6 p.m., the plaintiff, an East Hartford police officer, was on the premises of one six unit building in the condominium complex in response to a call reporting a fire in the building. He was injured when he fell down the common stairway at the rear of the building while attempting to evacuate the residents. According to uncontroverted expert testimony given at trial, the plaintiff’s fall was caused by a defect in the stairway.

In a one count complaint, the plaintiff sued the condominium association claiming, among other things, that the defendant was negligent in maintaining the staircase and the defendant failed to warn the plaintiff of the defective condition of the staircase. The court instructed the jury about the duty of care owed a licensee and the circumstances under which knowledge of the plaintiffs presence could be imputed to the defendant. The plaintiff objected to only that portion of the instruction defining his status as a licensee. The defendant did not object to the instruction at all and does not assert, on appeal, that any portion of the instruction constituted plain error.

The court, in its memorandum of decision, stated that because the plaintiffs visits to the defendant’s premises were not of “a regular nature,” there was insufficient evidence to support constructive notice of the plaintiff’s presence on the premises. The court’s charge to the jury, in pertinent part, was as follows: “If the coming upon the property of these individuals [the police] becomes reasonably predictable, and where the presence of the licensee at the approximate time and place of the injury reasonably could and should be anticipated by the licensor, this should be regarded as the equivalent of actual knowledge of his presence.” The court’s charge noted that police officers had responded to calls to this property in the past for domestic disputes and vandalism and that they had been at various parts of the property, and that the plaintiff had also been called to the premises in the past. The court charged the jury: “It is for you to determine whether there has been evidence of circumstances from which knowledge of the plaintiff’s presence could be imputed to the defendant.”

Ordinarily, a landowner owes no duty to a licensee on the landowner’s premises unless the landowner has actual or constructive knowledge of the licensee’s presence. Corcoran v. Jacovino, 161 Conn. 462, 468, 290 A.2d 225 (1971). A landowner has constructive knowledge of a licensee’s presence when there are circumstances from which such knowledge may be imputed to the landowner. Id. The trial court applied a stringent standard for evaluating constructive knowledge when it decided the defendant’s motion to set aside the verdict. It relied on a case where the status of the plaintiff, a United States Postal Service letter carrier, was arguably that of a business invitee and the accident occurred on land in the exclusive possession of one owner. Haffey v. Lemieux, 154 Conn. 185, 188, 224 A.2d 551 (1966). Knowledge of the individual licensee’s presence was imputed to the landowner because his visits were predictable because of their regularity as to time and place. Id., 188-89. The Haffey court stated that where “the presence of the licensee at the approximate time and place of the injury reasonably could, and should, be anticipated by the licensor, this should be regarded as the equivalent of actual knowledge of the licensee’s presence at that time and place in the application of the rule as to the measure of duty owed to the licensee.” Id., 189.

Where a rule states that constructive knowledge of the trespasser’s or licensee’s presence is required, the likelihood of either being present at the time of an accident may also be established circumstantially. See Carlson v. Connecticut Co., 95 Conn. 724, 730, 112 A. 646 (1921).

The common areas of multiunit dwellings and condominium complexes have an unusual character because they are neither in the exclusive control and possession of an individual owner nor open to the general public, but open to members of the public invited there as social and business invitees by the individual unit owners.

Section 345 (2) of the Restatement (Second) of Torts provides an exception to the general rule of 2 Restatement (Second), Torts § 345 (1). Subsection (1) provides that the liability of a possessor of land to a policeman or fireman is the same as the liability to a licensee. The rationale for the general rule of restricting the duty owed to a licensee such as firemen and policemen is that they are likely to enter the landowner’s premises at unforseeable times and on unusual parts of the premises, so that preparation for the visits cannot be expected. The exception provided in subsection (2) is as follows: “The liability of a possessor of land to a public officer or employee who enters land in the performance of his public duty, and suffers harm because of a condition of a part of the land held open to the public, is the same as the liability to an invitee.” See also Brady v. Consolidated Rail Corporation, 35 Ohio St. 3d 161, 163-64, 519 N.E.2d 387 (1988). The rationale of subsection (1) “suggests that an exception to the rule may exist when a public officer is injured by a defective condition on a portion of the land held open to the public at a time when the public might reasonably be expected to be present, and courts have indeed recognized such an exception.” Furstein v. Hill, supra, 617 n.1.

If premises are held open for the use of the public, and a fireman or policeman enters on those premises at a time and place f orseeable if he or she were a member of the public, the usual reasons for determining that the landowner could not have anticipated that presence due to the entrance at an unforseeable time or place vanish. See 2 Restatement (Second), Torts § 345, comment (e) on subsection (2). The plaintiff here was on a common stairway at 6 p.m. Neither the place nor the time of his injury was unusual.

The case on which the majority relies, Haffey v. Lemieux, supra, involved a single-family dwelling, as does Furstein v. Hill, supra. Unlike private residences, multiunit dwellings have common areas designed for use at reasonable times by a wide variety of invitees and licensees, ranging from social guests of the residents to repairmen, firefighters and police officers. The special character of the common areas of multiunit dwellings has been noted, particularly in cases involving landlord and condominium association liability for the criminal acts of third persons. See Frances T. v. Village Green Owners Assn., 42 Cal. 3d 490, 501, 723 P.2d 573, 229 Cal. Rptr. 456 (1986). These cases also frequently evaluate what constitutes notice to a landowner of the presence of dangerous persons, and the reasoning applied in those cases is helpful here. In Frances T., the defendant tried to argue that because the prior reported criminal activities were buglaries, but the crime alleged in the plaintiffs complaint was a rape, it could not foresee the particular harm done to the plaintiff and thus was not liable for negligence for its failure to install security lights. The California Supreme Court rejected this argument, stating: “ ‘[FJoreseeability is determined in light of all the circumstances and not by a rigid application of a mechanical “prior similars” rule.’ ” Id., 502.

The standard of Haffey v. Lemieux, supra, adopted by the trial court in its memorandum of decision and by the majority, is such a “mechanical ‘prior similars’ rule.” The more flexible standard for determining constructive knowledge used by the trial court in its instructions is the better rule when considering cases involving licensees who enter a semipublic area at a time when business and social invitees might also enter.

Our case law allows trespassers, to whom a landowner owes a lesser duty of care, to recover when their presence is only anticipated. McPheters v. Loomis, 125 Conn. 526, 533, 7 A.2d 437 (1939); Carlson v. Connecticut Co., supra; Yeske v. Avon Old Farms School, Inc., 1 Conn. App. 195, 202, 470 A.2d 705 (1984). If it is “for the jury to decide if a defendant knows or has reason to know that children are likely to trespass on that portion of his land where the instrumentality is located”; Yeske v. Avon Old Farms School, Inc., supra, 201; it is for the jury to decide if a defendant could have anticipated the presence of the plaintiff on May 13, 1986, at 6 p.m., on a common stairway of the defendant’s multiunit premises. In Yeske, the question for the jury to decide was whether the defendant knew or had reason to know that children were likely to trespass by bicycle or minibike on a trail on its property across which it had strung a cable. There, the court reviewed the record and found evidence of the operation of cars, minibikes and snowmobiles on different trails on the defendant’s property, and that the defendant had placed the cable across this particular trail to prevent trespassers from using it. Id., 199. We found this evidence sufficient to sustain the jury’s verdict for the plaintiff.

Given the evidence of the record here, as in Yeske, the defendant’s knowledge of the presence of an intruder or licensee on the land cannot be considered so finite as to exclude the likelihood that the plaintiff would be present at the time and place the accident occurred. Ten Bell Court, the site of the plaintiff’s accident, is a six unit dwelling in a complex that normally houses about 200 people. A sergeant with the East Hartford police department testified that the residents of the complex called the department with a variety of complaints ranging from reports of suspicious persons to domestic violence complaints, and that response to these complaints required the police to enter the common areas of the complex. The manager of the condominium association also testified that the police responded to specific complaints of vandalism, and that the only access to the units was through the common hallways. Significantly, the plaintiff testified that he, one of many East Hartford police officers, had been dispatched to the condominium complex twenty or thirty times prior to the accident. This evidence was sufficient to enable the jury to conclude, as instructed by the court, that police officers as a class, as well as the plaintiff as an individual, were “accustomed to pass over a particular portion” of the defendant’s property.

In my opinion, there was evidence from which the jury could conclude that the defendant could reasonably have anticipated the plaintiff s presence at the time and place in question. I do not read the cases or the Restatement Second as meaning that in a multiunit complex, the presence of a licensee must be anticipated at a precise location or particular time before liability may attach as long as that location is in a common area and at a time the location is accessible to the public. In my opinion, the charge was correct and it properly left to the jury the determination of whether the defendant had constructive notice of the plaintiffs presence. Since there was no objection to the charge by the defendant and there was evidence from which the jury could conclude that there was constructive notice of the plaintiffs presence, the verdict should not have been set aside. See Yeske v. Avon Old Farms School, Inc., supra, 203.

The defendant also claims, as an alternate basis for upholding the trial court’s judgment, that the plaintiff cannot recover as a matter of law because the plaintiff did not allege in its complaint that the defendant knew or should reasonably have anticipated the presence of the plaintiff on the day of the accident and at the approximate time and place in question. “The absence of a requisite allegation in a complaint that would have justified the granting of a motion to strike . . . is not a sufficient basis for vacating a judgment unless the pleading defect has resulted in prejudice.” Tedesco v. Stamford, 215 Conn. 450, 457, 576 A.2d 1273 (1990). The defendant does not claim any prejudice and the verdict cured any alleged absence of an essential allegation in the complaint. Id. I would not, therefore, have upheld the trial court’s judgment on this alternate ground.

       A broader standard of liability is sometimes applied where the premises are open to the public. 2 Restatement (Second), Torts § 345 (2). Comment (e) on subsection (2) provides in part: “Where the premises are held open for the use of the public, and a fireman or policeman enters upon a part of the premises which is so held open, and at a time when it is open, he may reasonably assume that reasonable care has been used to prepare the land for the reception of the public, and to make it safe for them. . . . The visitor is therefore entitled to the status of an invitee . . . .”
      In this case, where the premises are private residential units, there is no evidence that the premises were held open for the use of the public.

       This case, unlike that of Furstein v. Hill, 218 Conn. 610, 590 A.2d 939 (1991), does not involve a claim by the defendant that there was insufficient evidence from which the jury could conclude that the defendant had constructive knowledge of the dangerous condition. The defendant in the present case does not argue that the charge of the trial court was defective as to this issue.

       The relevant text of the charge is as follows: “Here it is undisputed that the defendant had no actual knowledge of the presence of the plaintiff on his property on this particular date and at this particular time; therefore, you could not find that the defendant had actual notice of the plaintiffs presence at the time of the accident. So when you move to the question of whether or not he had constructive notice from other circumstances, other facts, is it reasonable to conclude that the defendant knew of the plaintiffs presence on the property at that time. You must inquire as to whether there were circumstances from which knowledge of the plaintiffs presence could be imputed to the defendant. In other words, you must determine whether or not, short of actual knowledge, whether the plaintiff has established that the defendant could reasonably have anticipated his presence at that time and place in question.
      “The presence of a licensee might reasonably be anticipated if, for example, the licensee has previously used his license with reasonable regularity and has come upon the land about the same time of day, same time of day to the same location. For example, the mailman might do so, this coming upon the property becomes reasonably predictable. I think there has been some testimony here from the police sergeant that he had but heard of police officers responding to this property in the past for domestic disputes and, I think, vandalism. He may also have heard some testimony from Mr. Thibodeau about his conclusion that—I don’t know as he had any direct knowledge, but he observed that he thought that police had perhaps been to this property on occasions in the past at various parts of the property, but again, as I say, it is your recollection that controls on that point. And so that if the coming upon the property of these individuals becomes reasonably predictable, and where the presence of the licensee at the approximate time and place of injury reasonably could and should be anticipated by the licensor, this should be regarded as the equivalent of actual knowledge of his presence.”


author: Daly, J.

text:
    George McKenna, Executor (Estate of Margaret Galvin) v. Shearson Lehman Hutton, Inc.
    (9707)
    Daly, Foti and Landau, Js.

      Argued April 30
    decision released June 25, 1991

      Frank N. Eppinger, with whom, on the brief, was Shelley M. Weiss, for the appellant (plaintiff).

      Kevin McCann, for the appellee (defendant).
   Daly, J.

The plaintiff appeals from the trial court’s denial of an application for an order to direct the taking of a deposition in an arbitration proceeding. The plaintiff has filed a complaint for the mismanagement of the deceased’s account against the defendant and has submitted the matter, as required by a prior agreement between the deceased and the defendant, to the department of arbitration of the New York Stock Exchange, Inc. (arbitration department). The plaintiff seeks to depose the deceased’s broker, Fred C. Leonard, who managed the deceased’s account as part of his duties while employed with the defendant. The defendant refused to allow the taking of Leonard’s deposition and the plaintiff has sought an order to direct the taking of the deposition pursuant .to General Statutes § 52-412.

The trial court denied the plaintiffs application on several grounds. First, the parties agreed to proceed according to the rules of the arbitration department, which do not provide for discovery depositions. Second, § 52-142 (c) does not authorize the taking of discovery depositions, but only evidentiary depositions. The plaintiff failed to show that Leonard would not be available to testify at the arbitration proceeding and did not establish that the deposition was “for use as evidence in an arbitration.” Considering the policies favoring alternative dispute resolutions and the plaintiffs failure to offer any compelling reason for taking Leonard’s deposition, we conclude that the trial court properly exercised its discretion to deny the application.

The parties have voluntarily bound themselves to arbitration according to the rules and procedures of the arbitration department. Because Leonard is a member of the New York Stock Exchange, Inc., he may be compelled to appear and testify in this dispute. The arbitration department procedures do not, however, provide for discovery depositions. In agreeing to proceed according to arbitration and the arbitration department rules, the parties have limited their access to the full panoply of procedures available in ordinary litigation. Thus, the parties are bound to this limitation by their agreement. See Visselli v. American Fidelity Co., 155 Conn. 622, 625, 237 A.2d 561 (1967).

If an agreement for arbitration lacks any special provisions for the conduct of proceedings then resort may be had to the applicable provisions of General Statutes §§ 52-408 through 52-424. See Marsala v. Valve Corporation of America, 157 Conn. 362, 254 A.2d 469 (1969). If we assume, as the plaintiff argues, that the arbitration department’s omission of provisions relating to depositions would permit a party to resort to § 52-412 (c), the deposition would nonetheless be limited for “use as evidence in an arbitration.” The trial court specifically found that the plaintiff had not shown that Leonard was unavailable for the arbitration proceedings, and therefore the deposition request was purely for discovery purposes.

In denying the plaintiff’s application, the trial court exercised its sound discretion, in accord with this state’s public policy, favoring arbitration so as to avoid the formalities, delay, expense and vexation of ordinary litigation. See Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 107, 438 A.2d 1171 (1981).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-412 provides: “(a) Any arbitrator or umpire and any other persons qualified by law to issue subpoenas in civil actions shall have power to issue subpoenas for the attendance of witnesses and for the production of books, papers and other evidence at arbitration hearings. The subpoenas shall be served in the manner provided by law for the service of subpoenas in a civil action and shall be returnable to the arbitrator or arbitrators or umpire.
      “(b) On application of an arbitrator, umpire or other person, the superior court for the judicial district in which one of the parties resides or, in the case of land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall order necessary process to issue to compel compliance with subpoenas in an arbitration matter in the manner provided by law concerning subpoenas in a civil action.
      “(c) Any party to a written agreement for arbitration may make application to the superior court, or, when the court is not in session, to a judge thereof, having jurisdiction as provided in subsection (b), for an order directing the taking of depositions, in the manner and for the reasons prescribed by law for taking depositions to be used in a civil action, for use as evidence in an arbitration.” (Emphasis added.)

       The trial court also stated that General Statutes § 52-148a allowed a court to exercise discretion in deciding whether to order depositions in civil matters. Although this position may have some merit, we need not decide this issue to reach our decision in this case.

       Rule 619 (g) of the arbitration procedures of the New York Stock Exchange, Inc., empowers the arbitrators to compel the appearance of any person employed or associated with any member or member organization of the New York Stock Exchange, Inc.


author: Landau, J.

text:
    Acro Technology, Inc. v. Administrator, Unemployment Compensation Act, et al.
    (9321)
    O’Connell, Foti and Landau, Js.
    Argued January 17
    decision released June 25, 1991

      Taka Iwashita, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellant (named defendant).

      Nicholas J. Harding, with whom, on the brief, was Kathleen M. Conway, for the appellee (plaintiff).
   Landau, J.

An employment security appeals referee upheld the administrator’s award of unemployment compensation to the claimant. The employment security board of review (board) affirmed and adopted the referee’s decision. The Superior Court reversed the board’s decision and the defendant administrator of the Unemployment Compensation Act (administrator) appealed from that reversal.

The appeals referee, at a de novo hearing on the appeal from the administrator’s decision, found the following facts that were adopted by the board. The plaintiff, Aero Technology, Inc., employed the claimant, Beatrice Brophy beginning November 28,1988. Brophy voluntarily terminated her employment on April 7, 1989, because the work environment was adversely affecting her health. In particular, Brophy was required to assume additional duties because of employee turnover.

The appeals referee determined that Brophy’s job description had been involuntarily expanded. He also determined that her epilepsy had been materially affected by the conditions of her employment. He thus concluded that Brophy had voluntarily terminated her employment with sufficient job connected cause and affirmed the administrator’s award of benefits to the claimant.

The plaintiff employer appealed the referee’s decision to the board of review. Relying on the record, the board noted that Brophy had been required to assume significant additional duties that were not within her job description, and that the stress from these duties had aggravated her epilepsy. It also noted that this work related stress contributed to the deterioration of Brophy’s relationship with her employer. The board found that the referee’s conclusions were legally consistent with his findings of fact and with the Unemployment Compensation Act, General Statutes § 31-222 et seq. The board adopted the referee’s findings of fact and decision, affirmed the decision and dismissed the appeal.

The plaintiff appealed from the board’s decision to the Superior Court claiming that the board and the referee had acted illegally, arbitrarily and in an abuse of discretion. The court determined that the administrator’s decision was contrary to law because the administrator had not determined whether Brophy had told the plaintiff of her dissatisfaction with the working conditions, and whether she had unsuccessfully sought a remedy pursuant to § 31-236-22 (a) (2) of the Regulations of Connecticut State Agencies. The court also noted that the board could not make this determination because of Brophy’s failure to present such evidence.

After reaching this conclusion, the court reviewed the record that had been certified to it by the board, and found that the evidence could not support a finding that Brophy had met the requirements of § 31-326-22 (a) (2) of the Regulations of Connecticut State Agencies. The court based its finding on Brophy’s letter to the plaintiff terminating her employment and the fact finding questionnaire that she had completed and submitted to the employment security division in her claim for unemployment benefits. Rather than remanding the case to the board for further factual findings, the court reversed the board’s decision stating that Brophy had failed to present evidence that she had fulfilled the criteria set forth in § 31-326-22 (a) (2) and that the evidence indicated the contrary.

On appeal to this court, the defendant claims that the trial court should have remanded the plaintiff’s appeal to the board to determine whether the claimant had expressed her dissatisfaction with her working conditions and had sought a remedy with her employer. The administrator also claims that the plaintiff waived its right to raise the issue of whether Brophy had expressed her dissatisfaction and had sought a remedy by failing to raise this issue in the agency proceedings. We agree with the administrator that the trial court should have remanded this case to the board for further findings of fact based on the record presented to it.

The standard of review for this type of appeal is well established. The trial court does not try the matter de novo. DaSilva v. Administrator, 175 Conn. 562, 564, 402 A.2d 755 (1978). Where, as here, the board of review adopts the findings and affirms the decision of the appeals referee, the court is bound by the referee’s findings of subordinate facts and reasonable conclusions drawn therefrom. Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 4, 434 A.2d 293 (1980); Howell v. Administrator, 174 Conn. 529, 533, 391 A.2d 165 (1978). The court is limited to a review of the record certified and filed by the board. United Parcel Service, Inc. v. Administrator, 209 Conn. 381, 385, 551 A.2d 724 (1988). “If, however, the issue is one of law, the court has the broader responsibility of determining whether the administrative action resulted from an incorrect application of the law to the facts found or could not reasonably or logically have followed from such facts.” Id. The trial court, therefore, determines whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion. Id. To the extent that the issue involves a matter of statutory construction, it is a question of law, but to the extent that it involves an application of the statute to the actual circumstances of a case, it requires an appropriate finding of fact at the administrative level. Id., 387.

General Statutes § 31-236 provides in pertinent part that “[a]n individual shall be ineligible for benefits ... (2) (A) if, in the opinion of the administrator, he has left suitable work vohmtarily and without sufficient cause connected with his work . . . and provided further, no individual shall be ineligible for benefits if he leaves suitable work (i) for sufficient cause connected with his work, including leaving as a result of changes in conditions created by his employer . . . . ” Corresponding regulations, § 31-236-22 (a) (1), specify that in determining whether an individual has left suitable work for sufficient cause connected with work, the administrator must find, “with respect to working conditions, that . . . (B) during the course of employment, the individual’s employer substantially changed a working condition established in the employment agreement and such change had a significantly adverse effect upon the individual; or . . . (D) working conditions threatened the individual’s health due to his own medical condition . . . . ” Regs., Conn. State Agencies § 31-236-22. The regulations further require the administrator to find that the individual expressed his dissatisfaction regarding the working condition to his employer and unsuccessfully sought a reasonable resolution before leaving his employment. Regs., Conn. State Agencies § 31-236-22 (a) (2). Valid agency regulations have the force of statutes and constitute state law. Savage v. Aronson, 214 Conn. 256, 267, 571 A.2d 696 (1990).

An individual leaves suitable work “for cause” within the meaning of the statute, when he leaves employment “for reasons which would impel the ordinary reasonable person to leave and which provide the individual with no reasonable alternative but to terminate his employment.” Robinson v. Unemployment Security Board of Review, supra, 23. As a matter of law, therefore, a claimant must show that his basis for leaving employment is objectively reasonable and that no reasonable alternative to termination exists.

The appeals referee and the board in this case determined that Brophy had left suitable work for sufficient cause based on the additional duties and the aggravation of her medical condition. The trial court properly noted, however, that the referee and the board failed to indicate whether termination was Brophy’s only reasonable option. As a matter of law, therefore, the board’s determination of eligibility could not reasonably or logically have resulted from findings of fact that do not contain information regarding Brophy’s options. More specifically, the board did not find, in accordance with § 31-236-22 (a) (2), that Brophy had expressed her dissatisfaction and had sought a resolution before she voluntarily left her employment, and that no reasonable alternative to termination existed.

In order to apply General Statutes § 31-236 to the circumstances of this case, an appropriate finding of fact at the administrative level is required. United Parcel Services, Inc. v. Administrator, supra. Practice Book § 519 and General Statutes § 31-249b provide in pertinent part that “[t]he court may remand the case to the board for proceedings de novo, or for further proceedings on the record, or for such limited purposes as the court may prescribe.” Because neither the referee nor the board made the requisite finding, the court lacked the factual basis to reverse the board’s decision regarding Brophy’s eligibility. The court should have remanded the case for further administrative proceedings to resolve this question of fact. Id., 389. By making further findings of fact based on the record, the trial court exceeded its authority.

The defendant’s second claim, that the plaintiff waived its claim that Brophy had failed to express her dissatisfaction with the working conditions and to seek a remedy is without merit. That issue is a factual determination that must be made by the board pursuant to the Regulations of Connecticut State Agencies § 31-236-22 (a) (2).

The judgment is reversed and the case is remanded to the trial court with direction to remand the case to the board of review for further findings of fact based on the record.

In this opinion the other judges concurred.

       The claimant, Beatrice Brophy, is also a defendant to this proceeding. The claimant, however, did not file an appearance in this appeal.

       Section 31-236-22 of the Regulations of Connecticut State Agencies provides in pertinent part: “sufficient cause — working conditions
      “(a) To determine that an individual voluntarily left suitable work for sufficient cause connected with his work, the Administrator must find, with respect to working conditions, that:
      “(1) (A) upon commencement of employment, the individual’s employer changed a working condition agreed upon at the time of hire; or
      “(B) during the course of employment, the individual’s employer substantially changed a working condition established in the employment agreement and such change had a significantly adverse effect upon the individual; or
      “(C) working conditions endangered the individual’s health or safety to a greater degree than is customary for the employer’s industry; or
      “(D) working conditions threatened the individual’s health due to his own medical condition . . .
      “(2) except in the instance of (1) (A) above, the individual expressed his dissatisfaction regarding the working condition to his employer and unsuccessfully sought a remedy through those means reasonably available to him before leaving his employment.”

       On January 22,1991, the plaintiff, upon order of this court, filed a motion to dismiss asserting that the administrator’s docketing statement failed to contain the names and addresses of all parties to, and persons having a legal interest in, the appeal and their counsel in accordance with Practice Book § 4013. Although this failure does constitute a defect in the docketing statement, the defect was waived when the plaintiff failed to file a timely motion to dismiss. Practice Book § 4056. The plaintiff’s motion to dismiss is denied.


author: Dupont, C. J.

text:
    F. Francis D’Addario v. Planning and Zoning Commission of the Town of Darien Ernest Duhaime et al. v. Planning and Zoning Commission of the Town of Darien
    (6854)
    Dupont, C. J., Foti and Landau, Js.
    Argued March 19
    decision released June 25, 1991

      Michael N. Lavelle, with whom, on the brief, was James D Alton Murphy, for the appellant (defendant).

      Frank W. Murphy, with whom was Barbara L. Coughlan, for the appellee (plaintiff in the first case).

      Ridgely W. Brown, with whom, on the brief, was Heather M. Brown, for the appellees (plaintiffs in the second case).
   Dupont, C. J.

The plaintiffs in these two cases brought administrative appeals to the trial court from a 1985 zone change enacted by the defendant planning and zoning commission of the town of Darien (commission). The trial court sustained the plaintiffs’ appeals, holding that the action of the commission in rezoning a certain area from commercial to residential amounted to a taking of properties without just compensation in violation of both the state and federal constitutions. Upon certification from this court, the commission appealed.

The dispositive issue in this appeal is whether the trial court properly determined that a taking had occurred as a result of the commission’s rezoning.

Certain facts are pertinent to the resolution of this issue. The zone change involved a total area of 19.2 acres. The D’Addario parcel contains 9.8 acres, and the Duhaime parcel, which is contiguous to it, contains 3.72 acres. The remaining 5.6 acres involved in the change consist of a portion of the Connecticut Turnpike (turnpike) and a portion of the main line of the Metro North Railroad (railroad). The plaintiffs’ parcels are located between the turnpike and the railroad and are surrounded by commercial uses including a gravel pit, a highway service area and maintenance yard, a shopping center and a commuter parking lot. The Duhaime parcel is subject to an easement leading to the D’Addario parcel from Hollow Tree Ridge Road. This easement presently provides the only legal access to the D’Addario parcel.

The D’Addario land is bounded by another parcel of land, consisting of twenty-two acres. The twenty-two acre parcel was not subject to the 1985 zone change, and is not the subject of this appeal. It has always been zoned R-l/2 permitting single family residences on one-half acre lots, but has been used for gravel mining for over fifty years.

Prior to 1967, both of the plaintiffs’ parcels were zoned R-l/2. In 1967, the commission, with the promotion of commercial development as its goal, rezoned both parcels as a Designed Office and Research zone (DOR-5) allowing executive and administrative corporate office uses as well as research and design laboratories.

In 1984, the commission extensively revised the town’s plan of development in an effort to preserve the residential character of the town. The revised plan reflected a shift in policy toward limiting commercial development. The commission expressed concern about the growth of office space in Darien and in particular noted that the D’Addario and Duhaime parcels, as zoned, could generate significant amounts of traffic which could have an adverse impact on neighboring residential areas.

In 1985, the commission, on its own initiative, moved to adopt the zone change that is the subject of this appeal. The change was adopted and the D’Addario and Duhaime parcels were rezoned from DOR-5 to R-l/2. The commission claimed that the rezoning was necessary to make the parcels consistent with the recent changes in the town’s plan of development. At a public hearing on the proposed rezoning, a zoning enforcement officer and an assistant planner made brief presentations in favor of rezoning the parcels while the plaintiffs, on the other hand, presented substantial evidence against the proposed zone change. An expert witness testified that if the D’Addario parcel were zoned residential, only three to four lots could be developed unless a variance could be obtained to allow thirteen building lots. The monetary difference between a development of thirteen residential lots and an office building was estimated to be more than $3 million. The same expert testified that if the Duhaime parcel were used for residential purposes, rather than commercial purposes, the difference in value would be more than $1 million. All of the plaintiffs’ expert witnesses testified that it was not economically feasible to use the properties for residential development because of their location next to the turnpike and railroad.

The plaintiffs appealed to the trial court and presented evidence, some of which had been introduced at the public hearing. In addition, they introduced evidence on the issues of aggrievement and confiscation. The trial court concluded that the rezoning from DOR-5 to R-l/2 amounted to a taking, and therefore rendered judgments invalidating the zone change and sustaining the plaintiffs’ appeals. We affirm those judgments.

We must first decide, as a threshold question, whether the plaintiffs may attack the constitutionality of the zone change, as it affects them, in an administrative appeal. The general rule as stated in Florentine v. Darien, 142 Conn. 415, 115 A.2d 328 (1955), and as reiterated in Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 552 A.2d 796 (1989), is that a party “cannot seek the relief provided in an ordinance or statute and later in the same proceeding raise the question of its constitutionality.” Florentine v. Darien, supra, 428. There are instances, however, when the rule does not apply. It is not applicable when the legislature has provided otherwise. Cioffoletti v. Planning & Zoning Commission, supra, 550. It also does not apply when the party challenging the constitutionality of the particular regulation or ordinance does not seek relief pursuant to either. Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 365 A.2d 387 (1976); Bartlett v. Zoning Commission, 161 Conn. 24, 282 A.2d 907 (1971); Troiano v. Zoning Commission, 155 Conn. 265, 231 A.2d 536 (1967); DeForest & Hotchkiss Co. v. Planning & Zoning Commission, 152 Conn. 262, 269-70 n.1, 205 A.2d 774 (1964). In the present case, as in Chevron Oil Co., Bartlett and Troiano, the plaintiffs seek no relief under the zoning regulation that is the subject of these appeals, and, therefore, may question whether the zone change, as applied to them, is a taking of their properties.

“All property is held subject to the right of government to regulate its use in the exercise of the police power, so that it shall not be injurious to the rights of the community, or so that it may promote its health, morals, safety and welfare. The power of regulation by government is not unlimited; it cannot ... be imposed unless it bears a rational relation to the subjects which fall fairly within the police power and unless the means used are not within constitutional inhibitions. The means used will fall within these inhibitions whenever they are destructive, confiscatory, or so unreasonable as to be arbitrary.” State v. Hillman, 110 Conn. 92, 105, 147 A. 294 (1929).

The question here is not whether the zone change is rationally related to the exercise of the police power but whether, as applied to the plaintiffs’ properties, it is so unreasonable and confiscatory as to constitute for all practical purposes a taking of private property for public use. See Bombero v. Planning & Zoning Commission, 218 Conn. 737, 746, 591 A.2d 390 (1991); Dooley v. Town Plan & Zoning Commission, 151 Conn. 304, 309, 197 A.2d 770 (1964); Corthouts v. Newington, 140 Conn. 284, 288, 99 A.2d 112 (1953). In this case, the trial court invalidated the commission’s rezoning not because it was not rationally related to the proper subjects of police power regulation but because it was confiscatory as applied to the plaintiffs’ parcels.

A zoning regulation is presumed to be constitutionally valid and should be sustained by a court unless a party, challenging its validity, demonstrates that it clearly violates constitutional principles. Troiano v. Zoning Commission, supra, 269. “The validity of the legislation must be tested by its effect upon the plaintiffs under the facts of this case and not under some other circumstances.” Id. In other words, a determination as to whether a zoning regulation is unreasonable as applied to a particular piece of property so as to constitute a taking must be made in light of the facts and circumstances of each particular case. See Chevron Oil Co. v. Zoning Board of Appeals, supra, 151; Horwitz v. Waterford, 151 Conn. 320, 323, 197 A.2d 636 (1964).

A trial court employs a balancing test in determining whether a taking has occurred. Chevron Oil Co. v. Zoning Board of Appeals, supra; see also Cioffoletti v. Planning & Zoning Commission, supra, 562-63. That balancing test requires that the trial court consider (1) the degree of diminution in value of the particular piece of property, (2) the nature and degree of the public harm to be prevented and (3) the realistic alternative uses available to the landowner. Id.; see also Horwitz v. Waterford, supra, 324; Del Buono v. Board of Zoning Appeals, 143 Conn. 673, 677, 124 A.2d 915 (1956). In short, a court balances the financial effect of a zoning regulation on a particular owner or owners, which includes realistic alternative uses of the land, against the health, safety and welfare of the community. Chevron Oil Co. v. Zoning Board of Appeals, supra. Subsidiary factors involved are the location of the land, the size of the parcels affected by the administrative action, the physical characteristics of the land, the necessity of further action by the town in order for the landowner to achieve maximum use of the land if the initial action is upheld, and the effect of the action on the surrounding landowners and the public in general.

Our analysis under the test of Chevron Oil Co. begins with the financial impact on the plaintiffs. The trial court heard testimony from and received the appraisal of the plaintiffs’ appraiser, Ronald Glendinning, who stated that the zone change from commercial to residential substantially reduced the value of the plaintiffs’ properties. The trial court found Glendinning’s appraisal to be credible and realistic.

Specifically, Glendinning’s appraisal indicated that the D’Addario parcel could easily comply with DOR-5 zoning regulations. If developed commercially as a two story office building with 64,000 square feet, which was a permitted use before the zone change, the parcel would have a net value of over $3.5 million. This net value was obtained by deducting building costs, on-site improvements and modifications to a railroad bridge on Hollow Tree Ridge Road.

Glendinning estimated, on the other hand, that the D’Addario parcel would be worthless for development as a residential subdivision because the total cost of development would exceed the gross sale value if the owners were required to make road improvements at the bridge. The trial court reasoned that although the commission could not legally require the owners to make off-site improvements to the town road system, the commission could deny a subdivision application if the commission found that the traffic that would be generated by the subdivision, coupled with an inadequate railroad bridge, would present a traffic safety problem.

The Glendinning appraisal assumed that a maximum of thirteen lots, each with a detached single family home on a one-half acre lot, was possible if a variance of a Darien subdivision regulation were obtained. Without this variance, only four lots could be developed, and the total cost of developing the four lots would exceed the gross sale value of the D’Addario parcel. In other words, even without having to repair the railroad bridge, Glendinning concluded that the D’Addario parcel is worthless for development as a residential subdivision if the plaintiffs could not obtain a variance.

Glendinning predicted a similar diminution in value with respect to the Duhaime parcel. Glendinning estimated that the Duhaime parcel, if developed as an office building of 24,300 square feet, would result in a net value of $1,531,000 after taking into consideration various development costs including the cost of repairing the railroad bridge. Glendinning testified that if the Duhaime parcel were developed for residential use, namely five one-half acre lots, all having frontage on Hollow Ridge Tree Road, with no financial contribution from the D’Addario parcel for road construction, then the net value of the property would be decreased to $160,500 after expenses. Even if the owners of the D’Addario parcel were to contribute to the construction of a road, the value of the Duhaime parcel would increase only to $201,000.

On the basis of Glendinning’s figures, the trial court concluded that the zone change from commercial to residential drastically reduced the value of the D’Addario property from $3,584,000 to a maximum of $308,300, a 91.4 percent reduction, and reduced the value of the Duhaime property from $1,531,000 to $160,500, an 89.5 percent reduction.

The trial court adequately considered the realistic alternatives available to the property owners under the R-l/2 zoning. The trial court reviewed the commission’s zoning regulations and found that, under the regulations, the only other permitted uses are public schools and parks, private open space reservations, wildlife sanctuaries and undeveloped conservation areas. Such uses are usually of no value to developers who own relatively small areas of land. Other uses, allowed with special permits, such as private schools, nursery schools, churches, convents and monastaries, were not demonstrated to be economically feasible at this location. Because none of the alternative uses, including those allowed by special permit, was proven to be economically feasible, the trial court concluded that the only practicable use of the properties, under the R-l/2 zoning, was as single, detached one family residences each on its own lot.

Balanced against the finding that the plaintiffs’ properties were substantially diminished in value and that there were no realistic alternative uses other than as residential lots, was the finding that there would be minimal harm, if any, to the public if the zone change were not effected. The latter finding was based on a number of factors.

The trial court found that using the parcels for commercial purposes would not cause traffic congestion based on testimony and a report of Benedict Barkan, a traffic engineer, a videotape of the vicinity showing traffic during the evening rush hour, and a viewing of the property by the court itself. From the record and its visual inspection of the properties, the trial court stated that the only potential traffic problem was with the railroad bridge. The trial court, however, reasoned that this potential harm would exist whether the plaintiffs’ properties were zoned residential or commercial. Furthermore, the traffic generated by the adjoining twenty-two acre parcel was not relevant because that parcel was not rezoned and presumably would continue to generate the same amount of traffic whether the plaintiffs’ parcels were zoned residential or commercial.

In addition to finding that commercial zoning would not cause traffic congestion in the vicinity, the trial court also found that there was no real public benefit to be gained from the rezoning other than that the zone change would bring the subject properties into conformity with the 1984 town plan of development. This benefit, however, is slight because no evidence was introduced that indicated that nearby residential property values would be affected if the parcels were zoned commercial. The trial court, considering the surrounding uses, concluded that the parcels, if zoned residential, would not upgrade the neighborhood because they were isolated from other residential areas by the turnpike and railroad. Furthermore, there was no evidence before the trial court showing that development of the properties for office use would have any adverse impact upon wetlands, historic structures or the environment.

After the trial court carefully considered the facts of this case and weighed the relevant factors of the balancing test, it held that “the drastic percentage decrease in value from the zone change far outweighs any conceivable public benefit. There are no other feasible uses for either parcel under the residential zoning regulations .... Considering the unique location of the two parcels here, including the fact that they are an island surrounded by commercial uses . . . and the special circumstances of this case,” the rezoning from DOR-5 to R-l/2 constituted a taking under the balancing test. The trial court, therefore, declared the zone change unconstitutional as applied to the plaintiffs’ properties.

A determination of whether a taking has occurred is fact bound, and, therefore, is particularly within the province of the trial court as a finder of fact, and particularly subject to a case-by-case analysis. Chevron Oil Co. v. Zoning Board of Appeals, supra, 151. The deference paid to the facts found by the trial court in such cases is apparent in the decided cases. The conclusion of the trial court that a taking had or had not occurred was upheld in cases such as Cioffoletti v. Planning & Zoning Commission, supra; Chevron Oil Co. v. Zoning Board of Appeals, supra; Brecciaroli v. Commissioner of Environmental Protection, 168 Conn. 349, 362 A.2d 948 (1975); Corthouts v. Newington, supra; and Gil v. Inland Wetlands & Watercourses Agency, 23 Conn. App. 379, 580 A.2d 539, cert. granted, 216 Conn. 829, 582 A.2d 205 (1990). The trial court could have reasonably and logically found that the plaintiffs had met their burden of proving that the zone change, as applied to them, was so unreasonable and confiscatory as to constitute, for all practical purposes, a taking. This finding is supported by ample evidence and thus cannot be disturbed. Chevron Oil Co. v. Zoning Board of Appeals, supra, 152.

The judgments are affirmed.

In this opinion the other judges concurred.

       The trial court consolidated the two appeals because the 1985 zone change, which rezoned land from commercial to residential, involved only the plaintiffs’ parcels (hereinafter the D’Addario and Duhaime parcels) except for small sections of the Connecticut Turnpike and a main line of the Metro North Railroad. Neither the state nor the railroad appealed from the zone change.
      While the administrative appeals were being heard by the trial court, F. Francis D’Addario died. The five executors of his estate, David D’Addario, Lawrence D’Addario, F. Lee Griffith, Albert F. Paolini and Lawrence B. Schwartz, moved to be substituted as party plaintiffs and were allowed to do so.
      The plaintiffs in this case, other than Ernest Duhaime and the five executors of the D’Addario estate, are Richard Duhaime and Lucian Truskowski, each of whom owns one third of the Duhaime parcel.

       The constitution of Connecticut, article first, § 11, provides: “The property of no person shall be taken for public use, without just compensation therefor.”
      The fifth amendment to the United States constitution provides, as pertinent: “nor shall private property be taken for public use, without just compensation.”

       General Statutes § 8-8 (k) provides in relevant part: “The court shall review the proceedings of the board and shall allow any party to introduce evidence in addition to the contents of the record if ... it appears to the court that additional testimony is necessary for the equitable disposition of the appeal.”
      A trial court may hear additional evidence on the constitutionality of a zoning regulation in order to dispose equitably of an administrative appeal when there was insufficient evidence introduced before the zoning commission from which the court could decide the issue. Troiano v. Zoning Com

        mission, 155 Conn. 265, 269, 231 A.2d 536 (1967); Strom v. Planning & Zoning Commission, 153 Conn. 339, 344, 216 A.2d 623 (1966); see Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 550-52, 552 A.2d 796 (1989).
      Here, additional evidence was necessary for the equitable disposition of the case because the plaintiffs had not raised the taking issue before the commission nor could they because it was not until after the commission had rezoned their properties that the plaintiffs could claim that a taking had occurred. See Cioffoletti v. Planning & Zoning Commission, supra, 552.

       The relief sought by the plaintiffs was an order directing the commission “to deny the proposal to change the zone [of the plaintiffs’ land] from DOR-5 to R-l/2.” They alleged an unconstitutional taking or a practical confiscation of their properties. The court found a taking, rather than a practical confiscation. The latter occurs when the regulation or ordinance so restricts the use of land that it cannot be used for any reasonable purpose, and the former when the regulation or ordinance restricts the use of the property so stringently that the owner suffers a great economic deprivation, and there is no significant public benefit. Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 365 A.2d 387 (1976).

       The present case does not involve a change in the physical characteristics of land or a substantial change in ecological conditions, such as would be true in a case involving statutory protection for the environment. In Just v. Marinette County, 56 Wis. 2d 7, 17, 201 N.W.2d 761 (1972), the court held: “An owner of land has no absolute and unlimited right to change the essential natural character of his land so as to use it for a purpose for which it was unsuited in its natural state and which injures the rights of others.” Even if Just would be followed in Connecticut; see Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 433 A.2d 999 (1980); its considerations would not affect our outcome.


text:
    State of Connecticut v. Christopher Taft
    (8836)
    Daly, Foti and Landau, Js.
    Argued April 30
    decision released July 2, 1991

      G. Douglas Nash, public defender, with whom, on the brief, was Kent Drager, assistant public defender, for the appellant (defendant).

      Susann E. Gill, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Judith Rossi and Elpedio N. Vitale, assistant state’s attorneys, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of larceny in the first degree by receiving stolen property in violation of General Statutes §§ 53a-122 (a) (3) and 53a-119 (8). The defendant claims that the trial court (1) improperly allowed into evidence the defendant’s statements made to the police after he was given Miranda warnings; Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); (2) improperly permitted argument to the jury concerning the defendant’s silence after he was given Miranda warnings, and (3) failed to instruct the jury on an essential element of the offense of larceny by receiving stolen goods. We disagree and affirm the judgment of the trial court.

The jury could have reasonably found the following facts. Sometime after 8 p.m. on August 16, 1988, a rented 1988 Mercury Sable was stolen by two men, neither of whom was the defendant. On August 26,1988, at about 2:20 p.m., Officer William Horner of the New Haven police department was parked in his marked police cruiser on Dixwell Avenue when he was approached by a citizen who claimed to have been threatened by someone with a rifle in a white car down the street. The man pointed to a white Mercury Sable and as the car approached Homer’s position he flagged it to stop. The car sped away and Horner radioed for assistance giving the car’s description. A few minutes later, two plain clothes police officers spotted the white Mercury Sable as it skidded into an embankment and stopped. The defendant emerged from the car carrying a shotgun and was arrested. The car the defendant was driving was later identified as the 1988 Mercury Sable stolen nine days earlier, and when it was returned to the dealership, it was valued at $13,000.

The defendant was taken to the New Haven police station where he was questioned for about one hour by Detectives Joseph Howard and Mel Cartocetti. He was then given a printed form of the Miranda warnings which he signed, and he orally waived his Miranda rights after they were read to him. This signed form was subsequently lost and was not produced at trial. The defendant agreed to talk to the detectives but refused to allow any taped or written record to be made of his statement. The defendant told the detectives the name of the man who had given him the car on August 17, and said that he had been living in the car ever since. The defendant admitted having a shotgun when arrested and said he used it for protection. When asked if he knew that the car was stolen, the defendant did not immediately answer but looked down, smiled, shrugged and smirked. The interrogation went on to other topics and eventually ended after about one hour.

The defendant filed a motion to suppress his statements to the police in which he argued that he could not have waived his Miranda rights without knowing that he was being questioned about this crime. The trial court found that the defendant was informed what the charges against him were and was fully aware of his rights under Miranda, which he freely waived, when he talked with the detectives, and his motion was denied. Consequently, during the defendant’s trial Howard testified about what the defendant had said in his interrogation and the gestures he had made when asked whether he knew the car was stolen. The defendant chose not to testify and proffered no evidence.

The defendant claims that the trial court improperly permitted his statements and the description of his gestures into evidence and allowed the state to use this evidence in closing argument, in violation of his right to due process and his right not to incriminate himself. The defendant concedes that these claims were not preserved in the trial court in accordance with Practice Book § 4185, and seeks review under the Evans-Golding criteria. State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We need consider an unpreserved claim only if the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; id., 240; and we conclude that the defendant’s claims do not allege a clear constitutional violation and did not deprive him of a fair trial.

The defendant argues that his response to the question whether he knew the vehicle was stolen, his silence and gestures, is protected under Miranda. On the basis of this premise, the defendant asserts that the state’s use of his silence and gestures as incriminating statements was a violation of Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976); Griffin v. California, 380 U.S. 604, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965); and Miranda v. Arizona, supra. We do not accept the defendant’s claim that his response to the detective’s question was an assertion of his fifth amendment privileged silence under Miranda, and therefore conclude that his derivative claims to Doyle and Griffin violations are equally without basis.

The trial court found that the defendant was fully informed of his constitutional rights under Miranda and freely chose to waive those rights. He then answered a series of police questions for about one hour. “By speaking, the defendant has chosen unambiguously not to assert his right to remain silent. He knows that anything he says can and will be used against him and it is manifestly illogical to theorize that he might be choosing not to assert the right to remain silent as to part of his exculpatory story, while invoking that right as to other parts of his story. While a defendant may invoke his right to remain silent at any time, even after he initially waived his right to remain silent, it does not necessarily follow that he may remain ‘selectively’ silent.” State v. Talton, 197 Conn. 280, 295, 497 A.2d 35 (1985); see State v. Lytell, 206 Conn. 657, 661-63, 539 A.2d 133 (1988). “[T]here must be some indication that the defendant has invoked the right to remain silent.” Bradley v. Meachum, 918 F.2d 338, 342-43 (2d Cir. 1990). We do not view the defendant’s response and gestures as an invocation of the right to remain silent. Cf. id. We conclude that the defendant’s statements were properly admitted, including Howard’s testimony regarding the defendant’s gestures, and, therefore, a proper subject for prosecutorial comment in closing argument.

General Statutes § 53a-119 (8) provides in pertinent part: “A person is guilty of larceny by receiving stolen property if he receives, retains, or disposes of stolen property knowing that it has probably been stolen or believing that it has probably been stolen, unless the property is received, retained or disposed of with the purpose to restore it to the owner. ” (Emphasis added.) The defendant claims that the aforesaid italicized portion of the statute is an essential element of the offense and that the jury should have been so instructed by the trial court. This claim was not raised below and the defendant again requests review under the Evans-Golding criteria. State v. Golding, supra. A claim that the jury was not instructed on an essential element of the crime implicates the defendant’s due process rights, and is thus reviewable. See State v. Griffin, 175 Conn. 155, 161-62, 397 A.2d 89 (1978).

The dispositive question is whether the italicized portion is an essential element of the offense. “It is generally recognized that the state bears no initial burden of proof on matters personal to the defendant and peculiarly within his own knowledge.” State v. Januszewski, 182 Conn. 142, 167, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). Whether the defendant received, retained or disposed of the property with the purpose of restoring it to the owner is peculiarly within his personal knowledge. We conclude that the italicized portion of the statute is not an essential element of the offense charged and thus the trial court was not obligated to charge thereon.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was acquitted on the charge of threatening pursuant to General Statutes § 53a-62.


author: Per Curiam.

text:
    State of Connecticut v. John C. Grant
    (9571)
    Dupont, C. J., O’Connell and Norcott, Js.
    Submitted on briefs May 28
    decision released July 2, 1991

      William F. Gallagher and Elizabeth A. Gallagher filed a brief for the appellant (defendant).

      JohnM. Bailey, state’s attorney, and Mary H. Lesser and John O’Reilly, assistant state’s attorneys, filed a brief for the appellee (state).
   Per Curiam.

This case is controlled by State v. Clarke, 24 Conn. App. 541, 590 A.2d 468 (1991).

The judgment is affirmed.


author: Spallone, J.

text:
    Roberto Delgado v. Edwin Martinez
    (9362)
    Spallone, Heiman and Cretella, Js.
    Argued April 29
    decision released July 2, 1991

      Patricia Pac, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Joseph X. Dumond, Jr., assistant attorney general, for the appellant (state).

      Lucy Potter, for the appellee (defendant).
   Spallone, J.

The state of Connecticut is appealing from the judgment of the trial court granting the defendant’s petition to review an acknowledgment of paternity and to vacate the judgment of paternity. The state claims that the trial court improperly refused to apply the statutory time limitations set forth in General Statutes § 46b-172 for petitions to review an acknowledgment of paternity, improperly set aside a judgment of paternity and improperly granted the defendant’s motion for human leukocyte antigen (HLA) blood testing. We affirm the judgment of the trial court.

The following facts are relevant to the disposition of this appeal. On June 28, 1978, the then eighteen year old defendant, while incarcerated at the Hartford correctional center, was presented with an acknowledgment of paternity form regarding a child born to Ana Delgado. The acknowledgment form signed by the defendant did not advise him that he had a right to a hearing, or advise him of the legal consequences of signing the form. This form, along with an affirmation of paternity form signed by Ana Delgado, was filed with the Superior Court on June 30, 1978. Pursuant to § 46b-172 (formerly § 52-442a) the legal effect of this filing conclusively established the defendant’s paternity for the purpose of child support.

The defendant had heard nothing further of this acknowledgment for ten years and nine months when, in 1989, he was served with a show cause order for support. During this ten year interlude, a class action brought on behalf of putative fathers successfully challenged the procedure by which the defendant’s acknowledgment had been obtained. In Stone v. Maher, 527 F. Sup. 10 (D. Conn. 1980), the Federal District Court for the district of Connecticut held that General Statutes (Rev. to 1979) § 46b-172 (b) violated the right of the class members to due process of law under the fourteenth amendment to the federal constitution. The court held that the entry of a judgment of paternity without a hearing deprived a putative father of property in the form of weekly support payments without due process of law. The court recognized that a person could validly waive his rights to due process, but held that the execution of these acknowledgments of paternity, procured without the putative father’s having been informed of his legal rights and the legal consequences of signing the form, did not constitute a valid waiver of those procedural due process rights. Accordingly, a judgment rendered on the basis of this form could not preclude the signing party from later contesting the issue of paternity. The defendant in this case qualifies as a beneficiary of the class action as a putative father “ ‘who executed a written acknowledgment of paternity pursuant to General Statutes § 46b-172 and [was] never given an opportunity to litigate the issue of paternity.’ Perkins v. Perkins, 3 Conn. App. 322, 326, 487 A.2d 1117 (1985); Stone v. Maher, supra, 18.” Bleidner v. Searles, 19 Conn. App. 76, 82-83, 561 A.2d 954 (1989).

Our state recognized the shortcoming of its proceedings under General Statutes § 46b-172 in two ways. First, the department of human resources, which administers child support enforcement in Connecticut, changed its practice in response to Stone by promulgating an advisement of rights form to accompany paternity acknowledgments. Second, the General Assembly responded to Stone by amending § 46b-172 to eliminate the res judicata effect of a paternity judgment rendered upon the filing of an acknowledgment of paternity form if a petition for review is filed within three years of the date of the judgment. Public Acts 1982, No. 82-6 (codified in General Statutes § 46b-172 [b]). The statute revised to 1983 as amended provided in pertinent part: “The prior judgment as to paternity shall be res judicata as to that issue and shall not be reconsidered by the court, unless the person seeking review of the acknowledgment petitions the superior court . . . having venue for a hearing on the issue of paternity within three years of such judgment or within three years of October 1, 1982, whichever is later.”

The state asserts that the defendant is barred from contesting paternity at this time because the time limitation set forth in the amended § 46b-172 for contesting paternity has expired. We disagree with the claim that the defendant is time barred from contesting his paternity. The defendant in this case had no notice of the legal consequences of his acknowledgment until he was served with the show cause order for support. Stone held that a person in the position of the defendant in this case has a right to his day in court. Any attempt to circumscribe this right by imposing a statute of limitations on the defendant’s exercise of this right runs counter to Stone and must fail.

In Sullivan v. State, 38 Conn. Sup. 534, 453 A.2d 91 (1982), the Appellate Session of the Superior Court, Covello, J., reviewed a claim similar to the one at hand. In that case, the state claimed that a three year statute of limitations to petition for a new trial, set forth in General Statutes § 52-582, barred the plaintiff from contesting paternity established seven years earlier by the filing of an acknowledgment of paternity pursuant to § 46b-172. The court held that the plaintiff was not time barred from contesting paternity, and that the putative father could not because of the imposition of the statute of limitations “ ‘be deprived of the opportunity to contest the paternity issue which he won in the federal court [in Stone v. Maher, supra].’ Johnson v. Bessette, [37 Conn. Sup. 891, 896, 442 A.2d 70 (1981)]; see State v. Bashura, 37 Conn. Sup. 745, 436 A.2d 785 (1981).” Sullivan v. State, supra, 536. It is of no consequence that the three year statute of limitations sought to be imposed in this case stems from a different statutory subsection.

We do not hold that a person may not waive a constitutional right. It is axiomatic, however, that a waiver can be effective only if one voluntarily relinquishes a known right. Rivera v. Marcus, 696 F.2d 1016, 1026 (2d Cir. 1982). There was no evidence presented in this case that the defendant knew of the legal consequences of his signing the acknowledgment of paternity. Nor was there evidence that he knew that a judgment entered when the acknowledgment was filed in court.

Accordingly, we hold that the statute of limitations enunciated in General Statutes § 46b-172 (a) is not enforceable against a party who has not validly waived his procedural due process rights and where a judgment of paternity has been entered without notice and an opportunity to be heard. Having properly vacated the judgment of paternity, the trial court has jurisdiction to determine the issue of paternity in this case, which includes the power to order HLA blood testing pursuant to General Statutes § 46b-168.

The judgment is affirmed.

In this opinion the other judges concurred.

       The state of Connecticut and Roberto Delgado are the plaintiffs in this action. The state of Connecticut is an interested party because it is providing and has provided public assistance to the child’s caretaker, her uncle Roberto Delgado, under the aid to families with dependent children program.