author: Dupont, C. J.

text:
    Catherine Prishwalko v. Bob Thomas Ford, Inc.
    (11837)
    Dupont, C. J., Freedman and Schaller, Js.
    Argued November 4, 1993
    decision released February 8, 1994

      Joanne S. Faulkner, for the appellant (plaintiff).

      Matthew T. Paladino, for the appellee (defendant).
   Dupont, C. J.

The plaintiff appeals from the trial court’s judgment following a directed verdict for the defendant on both counts of the plaintiff’s complaint (Gray, J.) and from its denial of summary judgment for the plaintiff on the defendant’s special defense (Licari, J.). The plaintiff sought damages arising out of her purchase of an automobile from the defendant for breach of warranty and under the Connecticut Unfair Trade Practices Act (CUTPA, General Statutes § 42-110a et seq.). The defendant’s special defense was that its repurchase of the plaintiffs automobile and cancellation of all of her repair bills constituted an accord and satisfaction of the plaintiff’s claims. We agree with the plaintiff’s assertion that the trial court improperly directed a verdict against her on both counts of her complaint and, accordingly, remand the case for a new trial.

On November 25,1985, the plaintiff purchased a used 1983 Pontiac Phoenix from the defendant, Bob Thomas Ford, Inc., a Hamden automobile dealership, for a retail price of $4850. The purchase was financed by the Ford Motor Credit Company for the total price of $6455.60, including the finance charge, sales tax and other fees. The thirty day limited warranty provided to the plaintiff by the defendant and an “Odometer Statement” signed by a representative of the defendant both listed 38,114 miles as the vehicle’s odometer reading.

The plaintiff began to experience problems with the automobile immediately after she bought it. She testified that she had to return the car to the defendant dealership for repairs at least sixteen times during the first six months she owned it and estimated that she did not have use of the car for at least twenty-eight days during that period. Among the problems with the car were a defective gas tank that caused repeated stalling, oil and antifreeze leaks, burst hoses, blown fuses, electrical malfunctions including the horn’s spontaneous sounding at 2 o’clock one morning, a faulty timing chain, misalignment, trouble with the alternator, a leaky trunk, a mysteriously appearing dent, and a heater that ceased functioning in the middle of winter. The defendant’s repeated efforts at repairing the vehicle led only to further problems.

The plaintiff’s complaint to the department of motor vehicles prompted an investigation that resulted in the discovery that the vehicle’s odometer had been rolled back 50,000 miles by a prior owner, who had also altered the relevant paperwork. The defendant dealership had purchased the vehicle subsequent to the rollback, and the plaintiff did not suggest that the defendant knew of the tampering. The plaintiff testified that she would not have purchased the car if she had known its true mileage was over 88,000. The defendant agreed to repurchase the vehicle from the plaintiff. The defendant determined that it owed the plaintiff $4850, the original retail price of the car, and on February 27, 1987, presented the plaintiff with a check for $2788.20. The defendant used the balance of $2061.80 to pay off the loan from the Ford Motor Credit Company so that the defendant could take title to the car. The plaintiff testified that at that time, she had spent $4222.25 on payments for the returned automobile, exclusive of the balance of $2061.80 owed to the credit company.

The plaintiff brought suit against the defendant by a complaint dated February 29,1988. She claimed that the defendant had breached its warranty as to the mileage of the car, and that the defendant had committed unfair and deceptive acts and practices within the meaning of CUTPA. The plaintiff sought compensation for all of the payments she had made on the car prior to its repurchase, along with her repair costs, taxes, insurance, mileage, wages lost because of time she had been absent from work in efforts to repair the vehicle, and her expenses in maintaining a substitute vehicle. In its answer, the defendant denied that it breached a warranty to the plaintiff and denied having committed deceptive or unfair acts and practices, and also alleged as a special defense that its repurchase of the vehicle from the plaintiff constituted an accord and satisfaction of her claim.

The defendant moved for a directed verdict at the conclusion of the plaintiffs case. After conferring with counsel for both parties, the court stated that it did not believe that the plaintiff had set forth a prima facie case as to either count of its complaint and granted the defendant’s motion. By direction of the court, the jury found the issues for the defendant, and judgment was rendered for the defendant.

I

The plaintiff appealed from the trial court’s judgment in accordance with the directed verdict without first moving for the trial court to set aside the verdict. General Statutes § 52-228b requires that a written motion to set aside a verdict be filed in civil actions involving claims for money damages when the basis for the motion relates to either a sufficiency of the evidence claim or to an erroneous ruling of a trial court. Pietrorazio v. Santopietro, 185 Conn. 510, 515, 441 A.2d 163 (1981); see also Practice Book § 320. “We have applied the statute and the rule to directed verdicts as well as to those rendered by a jury without the order of a court. Dunham v. Dunham, 204 Conn. 303, 310-11, 528 A.2d 1123 (1987); Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 249-50, 520 A.2d 1008 (1987); see Pagani v. BT II, Limited Partnership, 24 Conn. App. 739, 750, 592 A.2d 397, cert. dismissed, 220 Conn. 902, 593 A.2d 968 (1991).” Saporoso v. Aetna Life & Casualty Co., 221 Conn. 356, 361-62, 603 A.2d 1160 (1992).

The plaintiff argues that a motion to set aside the verdict would have been redundant and futile in this case because of the trial court’s “adamant posture” that deliberate misrepresentation was required to prove a CUTPA violation. A motion to set aside the verdict “serves at least four useful functions: (1) it allows the trial court, in the less hectic atmosphere of a posttrial proceeding, to reconsider its rulings and, if they are determined to have been erroneous as well as harmful, to grant a new trial without the necessity of an appeal; (2) it provides an opportunity for the court to explain and to justify the challenged rulings in a written memorandum far more effectively and clearly than is possible at trial; (3) after a verdict is rendered and before an appeal is taken it provides the only occasion for counsel to appear in court and to present arguments in support of their positions, which are ordinarily formulated much more clearly and persuasively than at trial; and (4) it induces counsel for the parties to reevaluate the strength of their positions in the light of a jury verdict and thus may lead to a settlement of the litigation.” Id., 363.

Here, even if the plaintiff believed that the trial court would not have granted her motion to set aside the verdict, such a motion would nonetheless have given the court an opportunity to reconsider its position or to issue a written memorandum of decision and would have given the plaintiff the opportunity to prepare a more persuasive argument for the trial court. It was not for the plaintiff to decide whether a motion to set aside the verdict was worthwhile; the statute and the rule of practice required it, and the plaintiff should have filed it.

When an appellant has failed to move to set aside the verdict as required by General Statutes § 52-228b and Practice Book § 320, plain error is the appropriate standard of review. Saporoso v. Aetna Life & Casualty Co., supra, 363; Solomon v. Levett, 30 Conn. App. 125, 127, 618 A.2d 1389 (1993); Denby v. Voloshin Cadillac, Inc., 3 Conn. App. 181, 183, 485 A.2d 1360, cert. dismissed, 196 Conn. 802, 491 A.2d 1105 (1985). “The court may in the interests of justice notice plain error not brought to the attention of the trial court.” Practice Book § 4185. “ ‘Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ ” Saporoso v. Aetna Life & Casualty Co., supra, quoting State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). Here, our review is restricted to plain error. We conclude, however, that the plaintiff sets forth a claim that satisfies that limited standard of review.

II

At the close of the plaintiffs case, the trial court granted the defendant’s motion for a directed verdict on both counts of the plaintiff’s complaint. “A directed verdict is justified if on the evidence the jury could not reasonably and legally reach any other conclusion . . . .” (Citations omitted; internal quotation marks omitted.) Churchill v. Skjerding, 31 Conn. App. 247, 251, 624 A.2d 900, cert. denied, 226 Conn. 914, 628 A.2d 986 (1993); see Practice Book § 321. The transcript of the discussion between the trial judge and the parties’ attorneys following the close of the plaintiff’s case reveals that the defendant’s attorney orally moved for a directed verdict on the ground that the plaintiff had not presented a prima facie case under CUTPA because she had not set forth sufficient evidence to establish a substantial injury. The court treated that motion as being aimed at the entirety of the plaintiff’s complaint and granted it as to both the CUTPA claim and the breach of warranty claim.

The focus of the court’s attention during its discussion with the parties’ attorneys was primarily the legal requirements necessary to establish a CUTPA violation. Also factoring into the court’s decision were a discussion of the plaintiff’s failure to present to the court cases supporting her position that an innocent misrepresentation can constitute a CUTPA violation, an argument that the court did not accept, and a debate over the degree to which the plaintiff was made whole by the defendant when it repurchased the car from the plaintiff. We hold that it was plain error for the trial court to grant the defendant’s motion for a directed verdict because we conclude that the plaintiff had established a prima facie case under both theories of her complaint.

A

We first address the plaintiff’s claim for relief under CUTPA. She alleged in her complaint that the defendant committed various unfair and deceptive acts and practices in violation of CUTPA, the most notable being the defendant’s unknowing misrepresentation of the vehicle’s mileage to the plaintiff. General Statutes § 42-110b (a) states, “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

The transcript indicates that throughout the discussion between the trial court and the parties’ attorneys that took place following the presentation of the plaintiffs case, the plaintiffs attorney spent much of her time unsuccessfully attempting to convince the court that it was “per se deceptive” for the defendant to misrepresent, even unknowingly, the odometer mileage on the vehicle it sold to the plaintiff. The trial court responded to her first such assertion by stating “[t]hat misrepresentation has to be a wilful, intentional, deliberate act,” and did not retreat from that position afterward.

At common law, a cause of action for innocent misrepresentation sounded in warranty. Hinchcliffe v. American Motors Corp., 184 Conn. 607, 616, 440 A.2d 810 (1981). CUTPA proscribes “a broader range of conduct than did the common-law action for misrepresentation [and a] CUTPA plaintiff need not prove reliance or that the representation became part of the basis of the bargain.” Id., 617. Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 363, 525 A.2d 57 (1987), relied on Hinchcliffe and the federal district court’s decision in Bailey Employment System, Inc. v. Hahn, 545 F. Sup. 62, 67 (D. Conn. 1982), aff'd, 723 F.2d 895 (2d Cir. 1983), in holding “that knowledge of falsity, either constructive or actual, need not be proven to establish a violation of CUTPA.” This holding has been reiterated in subsequent cases. See, e.g., Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 106, 612 A.2d 1130 (1992); Eamiello v. Liberty Mobile Home Sales, Inc., 208 Conn. 620, 653, 546 A.2d 805 (1988). It is not a prerequisite of a CUTPA violation to prove that a car dealer intended to deceive when an odometer reading is not accurate.

In construing General Statutes § 42-110b, we look not only to precedent set by the courts of Connecticut, but also to the interpretations given by the federal courts and the Federal Trade Commission (commission) to § 5 (a) (1) of the Federal Trade Commission Act. General Statutes § 42-110b (b). In Federal Trade Commission v. Sperry & Hutchinson Co., 405 U.S. 233, 92 S. Ct. 898, 31 L. Ed. 2d 170 (1972), the United States Supreme Court construed § 5 of the Federal Trade Commission Act and cited three factors the commission “considers in determining whether a practice that is neither in violation of the antitrust laws nor deceptive is nonetheless unfair: ‘(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen).’ Statement of Basis and Purpose of Trade Regulation Rule 408, Unfair or Deceptive Advertising and Labeling of Cigarettes in Relation to the Health Hazards of Smoking. 29 Fed. Reg. 8355 (1964).” Id., 244-45 n.5.

These three factors, known as the “cigarette rule,” have been adopted by the courts of this state as criteria in determining whether a practice violates CUTPA. Cheshire Mortgage Service, Inc. v. Montes, supra, 105-106; Web Press Services Corp. v. New London Motors, Inc., supra, 355; Sportsmen’s Boating Corp. v. Hensley, 192 Conn. 747, 756, 474 A.2d 780 (1984). A prospective plaintiff need not satisfy all three of the criteria; “[a] practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.” Cheshire Mortgage Service, Inc. v. Montes, supra, 106, quoting Statement of Basis and Purpose, Disclosure Requirements and Prohibitions Concerning Franchising and Business Opportunity Ventures, 43 Fed. Reg. 59,614, 59,635 (1978). “Thus, a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy.” (Citations omitted.) Web Press Services Corp. v. New London Motors, Inc., supra.

The defendant’s attorney argued in support of its motion for a directed verdict that the “substantial injury” prong of the cigarette rule had not been satisfied by the plaintiff. “ ‘[T]he federal trade commission has stated: “The independent nature of the consumer injury criterion does not mean that every consumer injury is legally ‘unfair,’ however. To justify a finding of unfairness the injury must satisfy three tests. It must be substantial; it must not be outweighed by any countervailing benefits to consumers or competition that the practice produces; and it must be an injury that consumers themselves could not reasonably have avoided.” Letter from Federal Trade Commission to Senators [Gerald] Ford and [John] Danforth (Dec. 17, 1980) (reprinted in Averitt, “The Meaning of ‘Unfair Acts or Practices’ in § 5 of the Federal Trade Commission Act,” 70 Geo. L.J. 225, 291 [1981]).’ . . . McLaughlin Ford, Inc. v. Ford Motor Co., [192 Conn. 558, 569-70, 473 A.2d 1185 (1984)].” A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 216, 579 A.2d 69 (1990). All three factors of the cigarette rule need not be satisfied to establish an unfair trade practice; Cheshire Mortgage Service, Inc. v. Montes, supra, 106; McLaughlin Ford, Inc. v. Ford Motor Co., supra, 569 n.15; it has been suggested, however, that unjustified consumer injury is the most important of the three factors, and that it must be substantial to justify regulation of a practice. A-G Foods, Inc. v. Pepperidge Farm, Inc., supra, 216-17; Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 242-43, 520 A.2d 1008 (1987); see also Web Press Services Corp. v. New London Motors, Inc., 205 Conn. 479, 483-84, 533 A.2d 1211 (1987).

Rather than requiring a showing of “substantial injury” to a plaintiff, General Statutes § 42-110g (a) provides that “[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action ... to recover actual damages. Proof of public interest or public injury shall not be required . . . . The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.” (Emphasis added.) In Hinchcliffe v. American Motors Corp., 184 Conn. 607, 619, 440 A.2d 810 (1981), the Supreme Court determined that the plaintiffs had “suffered an ascertainable loss when they produced evidence fairly suggesting that, as a result of an unfair or deceptive trade practice, they received something different from that for which they had bargained.” The Hinchcliffe court set aside the trial court's entry of a directed verdict for the defendant, stating that the amount of actual damages that the plaintiff might ultimately recover was not a concern at that stage of the trial. That reasoning is applicable to this case as well.

“[T]he burden of proving damages is on the party claiming them.” Gargano v. Heyman, 203 Conn. 616, 620, 525 A.2d 1343 (1987); Conaway v. Prestia, 191 Conn. 484, 493-94, 464 A.2d 847 (1983). “It is then the province of the trier of fact to weigh the evidence presented and to determine the credibility and effect to be given the evidence.” (Emphasis added.) Gargano v. Heyman, supra. Here, the plaintiff offered evidence that the defendant’s misrepresentation of the odometer mileage had led her to purchase a car that cost her $4222.25 out-of-pocket, $2788.20 of which she had personally been refunded by the defendant. She also had spent money on repair costs, taxes, insurance, and the maintenance of a substitute vehicle, as well as lost wages. CUTPA allows the recovery of actual damages; General Statutes § 42-110g (a); which would include at least the cost of repairs and alternative transportation, as well as the balance of the sum the plaintiff spent out-of-pocket on car payments. Altberg v. Paul Kovacs Tire Shop, Inc., 31 Conn. App. 634, 641, 626 A.2d 804 (1993). Even if the defendant had been due an offset for the plaintiff’s use of the car, the plaintiff would nevertheless have succeeded in alleging substantial damages. Of more importance, however, is that it was for the jury, not the court, to decide what the actual damages were.

Therefore, it was plain error for the trial court to grant the defendant’s motion for a directed verdict on the plaintiffs CUTPA claim.

B

We next address the plaintiff’s claim that the defendant breached its warranty to the plaintiff. The court directed a verdict on this count because the plaintiff had not presented a prima facie case “under the entirety of its complaint.”

In the first count of her complaint, the plaintiff alleged that the defendant “breached its warranty as to the mileage of the vehicle,” and listed the same damages as in the second count. It is undisputed that the limited warranty issued by the defendant to the plaintiff listed the odometer reading as 38,114 miles, and that the actual mileage on the vehicle was 88,114 at that time. No suggestion was made that the plaintiffs claim was outside the scope of the warranty. The court directed a verdict for the defendant on this count because it was persuaded that no jury could find that the plaintiff had suffered any damages, and that there is no cause of action for a breach of warranty due to an innocent misrepresentation.

“In Connecticut, strict liability for innocent misrepresentation in the sale of goods is well established.” Johnson v. Healy, 176 Conn. 97, 101, 405 A.2d 54 (1978). “In contracts for the sale of tangible chattels, express warranty encompasses material representations which are false, without regard to the state of mind or the due care of the person making the representation.” Id., 100. The Uniform Commercial Code, General Statutes § 42a-l-101 et seq., has displaced many of the common-law warranty actions involving transactions in goods. Innocent misrepresentations, however, are still actionable. See General Statutes §§ 42a-2-313 through 42a-2-318. Additionally, General Statutes § 42-225 (a) provides that “[n]o dealer may make any false, misleading or deceptive statements about the condition or history of any used motor vehicle offered for sale.” A cause of action for breach of warranty was available to the plaintiff.

Although the damages available under CUTPA are more extensive than those available under a warranty action, the plaintiff introduced evidence that would have entitled her to some recovery, if it was believed by the jury. “The general rule for measurement of damages upon breach of warranty is to award the prevailing party such compensation as will place him in the same position as he would have enjoyed had the property been as warranted.” Id., 105. General Statutes §§ 42a-2-711 through 42a-2-719 also permit the buyer to recover incidental and consequential damages. General Statutes § 42a-2-715. Again, it was the province of the jury to decide whether to believe the plaintiffs evidence, and to determine if the defendant had an offsetting claim.

We hold that it was plain error for the trial court to grant the defendant’s motion for a directed verdict as to both the plaintiff’s breach of warranty claim and the plaintiff’s CUTPA claim.

Ill

The plaintiff also appeals from the trial court’s denial of her motion for summary judgment on the defendant’s special defense of accord and satisfaction. The denial of a motion for summary judgment is not ordinarily appealable because it is not a final judgment. Practice Book § 4000; Denby v. Voloshin Cadillac, Inc., 3 Conn. App. 181, 181-82 n.3, 485 A.2d 1360, cert. dismissed, 196 Conn. 802, 491 A.2d 1105 (1985). Where the case has not gone to trial, however, summary judgments are appealable because the rationale that “a decision based on more evidence should preclude a decision based on less evidence” is not applicable in that situation. Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 295 n.12, 596 A.2d 414 (1991); see Gurliacci v. Mayer, 218 Conn. 531, 541 n.7, 590 A.2d 914 (1991). A plaintiff may appeal from the denial of its motion for summary judgment where the trial court had granted summary judgment for the defendant and the case had not gone to trial. Aetna Casualty & Surety Co. v. Jones, supra.

The defendant had the burden of proving its special defense of accord and satisfaction. Because the court directed a verdict at the close of the plaintiff’s case, no evidence was presented in support of that defense. We need not review the denial of the plaintiff’s motion for summary judgment, however, because the rationale of Aetna Casualty & Surety Co. v. Jones, supra, is not applicable here. The plaintiff is entitled to a new trial, which will give the defendant an opportunity to reassert its special defense and to introduce evidence supporting it.

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

In this opinion the other judges concurred.

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

       Practice Book § 320 provides: “Motions in arrest of judgment, whether for extrinsic causes or causes apparent on the record, motions to set aside a verdict and motions for new trials, unless brought by petition served on the adverse party or parties, must be filed with the clerk within five days after the day the verdict is accepted or judgment rendered; provided that for good cause the court may extend this time. The clerk shall notify the trial judge of such filing. Such motions shall state the specific grounds upon which counsel relies.”

       The judge announced his ruling on the motion for a directed verdict shortly after he had asked the plaintiff’s attorney, “Do you honestly think that if everything was found in your client’s behalf, that she could walk out of here without having to give any credit for the almost eleven thousand miles she put on the vehicle herself over a period of fourteen months by her own testimony, that no credits would be given?” When plaintiff’s counsel answered in the affirmative, the judge said that “there are no free lunches in this world . . . [a]nd there aren’t any under the law,” and announced that he was going to grant the motion for a directed verdict.

       General Statutes § 42-110b further provides: “(b) It is the intent of the legislature that in construing subsection (a) of this section, the commissioner and the courts of this state shall be guided by interpretations given by the Federal Trade Commission and the federal courts to Section 5 (a) (1) of the Federal Trade Commission Act (15 U.S.C. 45 (a) (1)), as from time to time amended.
      “(c) The commissioner may, in accordance with chapter 54, establish by regulation acts, practices or methods which shall be deemed to be unfair or deceptive in violation of subsection (a) of this section. Such regulations shall not be inconsistent with the rules, regulations and decisions of the federal trade commission and the federal courts in interpreting the provisions of the Federal Trade Commission Act.
      “(d) It is the intention of the legislature that this chapter be remedial and be so construed.”

       We also note that § 42-110b-28 (b) (16) of the Regulations of Connecticut State Agencies provides that “[i]t shall be an unfair or deceptive act or practice for a new car dealer or used car dealer to misrepresent in any advertisement the mileage of any motor vehicle.” This regulation was promulgated in accordance with General Statutes § 42-110b (c), which empowers the state commissioner of consumer protection to establish unfair or deceptive acts in violation of General Statutes § 42-110b (a). Additionally, General Statutes § 14-106b makes it a class A misdemeanor to tamper with the reading on an odometer. The existence of such statutes and regulations indicates that there is an identifiable public policy against selling motor vehicles with false mileage readings.


source: Caselaw Access Project

author: Freedman, J.

license: Public Domain

text:
    State of Connecticut v. Charles Andrews
    (11703)
    O’Connell, Freedman and Schaller, Js.
    Argued October 5, 1993
    decision released February 15, 1994

      John J. Bennett, for the appellant (defendant).

      Leon F. Dalbec, Jr., with whom, on the brief, were Mary M. Galvin, state’s attorney, and Frank McQuade, supervisory assistant state’s attorney, for the appellee (state).
   Freedman, J.

The defendant appeals from the judgment of conviction, rendered after a plea of nolo contendere made pursuant to General Statutes § 54-94a, of a charge of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a (a). The defendant filed a motion to suppress evidence and a motion to dismiss. After an evidentiary hearing, the trial court issued a written memorandum of decision denying both motions. The defendant elected to enter a plea of nolo contendere, conditioned on his right to appeal the denial of the motions. That same day, the defendant was sentenced to a term of imprisonment of six months, execution suspended, with one year probation, 100 hours of community service, and a $500 fine. This appeal followed.

The defendant claims that the trial court improperly (1) denied his motion to suppress evidence, which was based on the ground that the search and seizure of evidence regarding intoxication was in violation of the fourth and fourteenth amendments to the United States constitution and article first, §§ 7, 8 and 9, of the Connecticut constitution, and (2) denied his motion to dismiss, which was based on the ground that his arrest and seizure were in violation of General Statutes § 54-If. We affirm the decision of the trial court.

The trial court found the following facts. On January 18, 1992, the defendant was operating his motor vehicle in Derby. Shortly after midnight, Charles Sampson, a Shelton auxiliary police officer, was driving his personal vehicle home from his job at the Shelton police department. While traveling through Derby, Sampson observed the defendant operating his vehicle in an erratic manner. Sampson saw the defendant’s vehicle run a stop sign, go onto the curb and continue traveling down the road. Sampson observed that the defendant was unable to keep his car on the traveled portion of the roadway. At trial, Sampson testified that the defendant, while driving, “had crossed over the center of the road, traveling northbound in the southbound side of the road and also striking the right hand shoulder of the road multiple times.”

After witnessing these events, Sampson called the Derby police from his cellular phone. In the meantime, he continued to follow the defendant, who continued to drive in an erratic manner. Sampson then flashed his headlights and turned on a blue flashing light he had as a Derby volunteer fire fighter. The defendant pulled over. Sampson turned off his lights, got out of his vehicle, approached the defendant’s car and asked the defendant to wait for the Derby police. Sampson was dressed in his auxiliary police uniform. Although Sampson did not ask any questions, or request any information, the defendant handed his license and registration to Sampson who looked at them and returned them to the defendant. Sampson then returned to his car and awaited the arrival of the Derby police.

The Derby police arrived at the scene shortly thereafter. They spoke with Sampson, who explained what had happened, and they approached the defendant’s vehicle, which was still running with its lights on. While asking the defendant for his license, the officers smelled a strong odor of alcohol and noted that the defendant’s speech was slurred. They asked the defendant to perform some field sobriety tests which he failed. Thereafter, he was arrested by the Derby police for operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a (a).

The defendant first claims that Sampson’s conduct violated the fourth amendment of the United States constitution. The fourth amendment protects the defendant’s person from unreasonable searches and seizures by the federal government. The fourth amendment is made applicable to state action by the fourteenth amendment. Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967); Ker v. California, 374 U.S. 23, 30, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963); Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961); State v. Holliman, 214 Conn. 38, 43, 570 A.2d 680 (1990); State v. Rice 172 Conn. 94, 97, 374 A.2d 128 (1976). Fourth amendment constitutional guarantees against unreasonable searches and seizures apply, however, only to governmental action and not to action by private citizens acting in their private capacity. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S. Ct. 574, 65 L. Ed. 1048 (1921). Evidence seized by an individual acting in a private capacity, even illegally, will not be excluded from a criminal trial. See 1 W. LaFave, Search and Seizure (2d Ed. 1987) § 1.8 (a), p. 174. Therefore, before we reach the question of whether there was an unreasonable search and seizure by Sampson invoking constitutional guarantees, we must first address the threshold issue of whether there was sufficient governmental action to invoke these constitutional guarantees.

There do not appear to be any Connecticut appellate decisions directly on point. Other jurisdictions have addressed the question of whether there was governmental action by analyzing the capacity in which the individual was acting at the time of the search and seizure. See People v. Wachter, 58 Cal. App. 3d 911, 920, 130 Cal. Rptr. 279 (1976); Stevenson v. State, 43 Md. App. 120, 127, 403 A.2d 812 (1979); State v. Walker, 236 Neb. 155, 161-63, 459 N.W.2d 527 (1990); State v. Pearson, 15 Or. App. 1, 514 P.2d 884 (1973). “A proper rule is one which protects citizens from unreasonable searches and seizures by police officials and which, at the same time, does not needlessly exclude the fruits of nonpolice searches.” State v. Walker, supra, 161. Generally, if an individual is acting in a private capacity at the time of a search and seizure there is no governmental action. Id. Jurisdictions are split as to whether an off duty police officer acts in a private or official capacity. “A number of jurisdictions hold that police officers are still subject to Fourth Amendment standards for searches and seizures made by them when off duty. Other jurisdictions, however, have held that off-duty police are private citizens.” 1W. Ringel, Searches and Seizures (2d Ed. 1993) § 2.3 (a).

Decisions of other jurisdictions that address the question of when an off duty police officer acts in a private or official capacity do not provide a clear consensus on how to resolve this issue. We conclude that the proper analysis to determine whether an off duty police officer is acting in his or her official capacity or acting as a private citizen is to apply a twofold test. First, we must examine the capacity in which the off duty police officer was functioning when the officer initially confronted the situation and second, we must examine the manner in which he or she conducted himself or herself from that point forward. We believe such twofold test to be the “proper rule . . . which protects citizens from unreasonable searches and seizures by police officials . . . which, at the same time, does not needlessly exclude the fruits of nonpolice searches.” State v. Walker, supra.

We now apply this twofold test to the actions and conduct of Sampson, to determine whether he was acting as a private citizen or in his official capacity as an auxiliary police officer when he caused the defendant to stop his car.

First, Sampson was off duty, outside of his jurisdiction, and driving his personal vehicle home from work when he witnessed the defendant driving erratically. Therefore, we conclude that Sampson was functioning in his private capacity when he first observed the defendant.

Second, we consider how he conducted himself thereafter. Once Sampson observed the erratic driving of the defendant and recognized that the defendant’s driving was putting the defendant and others on the road in danger, Sampson called the Derby police and notified them of the defendant’s location. Sampson testified at trial that the defendant virtually ran Sampson and another vehicle off the road. Only after further observing the defendant’s inability to stay on the traveled portion of the roadway, did Sampson flash his headlights and his blue flashing light.

When the defendant pulled off the road, Sampson did not ask the defendant for his license and registration. The defendant simply handed them to Sampson. He did not keep the license and registration, but immediately returned them to the defendant. He did not attempt to administer any sobriety tests or to take the defendant into custody. Sampson merely asked the defendant to wait for the Derby police and returned to his car, where he also awaited the arrival of the police. The fact that Sampson immediately notified the police is farther evidence that he was not acting in his official capacity. See People v. Wachter, supra; State v. Castillo, 108 Idaho 205, 697 P.2d 1219 (1985).

Taking into account the capacity in which Sampson was acting when he initially confronted the situation and examining his conduct thereafter, we conclude that Sampson was acting in his private capacity and not in his official capacity as an auxiliary police officer when he caused the defendant to stop his car. Because Sampson was not acting in his official capacity but was acting as a private citizen, there was no governmental action to invoke the constitutional guarantees of the fourth amendment and our analysis of this issue need go no further.

The defendant’s second claim, that all charges pending against him should be dismissed because his arrest by Sampson was illegal and violated General Statutes § 54-lf, requires little discussion.

Here, the trial court made the specific finding that the Derby police, and not Sampson, arrested the defendant. “On appeal, the function of this court is limited solely to the determination of whether the factual findings of the trial court are clearly erroneous in view of the evidence and pleadings in the whole record. . . . It is the province of the trial court to pass upon the credibility of the witnesses and the weight to be accorded the evidence. . . . This court cannot find facts or draw conclusions from primary facts found, but can only review such findings to determine whether they could legally, logically and reasonably be found, thereby establishing that the trial court could reasonably conclude as it did.” (Citations omitted.) Lynch v. Lynch, 13 Conn. App. 433, 436-37, 537 A.2d 503 (1988). “[A] finding of fact by the trial court will not be overturned unless it is clearly erroneous. . . . We will, however, carefully review the record to ascertain whether the trial court’s finding is supported by substantial evidence.” (Citations omitted.) State v. Williams, 227 Conn. 101, 113, 629 A.2d 402 (1993).

The only testimony presented to the trial court was that of Sampson and the two Derby police officers. From this testimony, the trial court reasonably could have found that Sampson’s conduct did not constitute an arrest of the defendant. The testimony revealed that Sampson merely asked the defendant to wait for the police. Sampson did not take the defendant into custody, ask him any questions, or forcibly detain him. Sampson immediately returned to his own vehicle to await the arrival of the Derby police. We conclude that the finding of the trial court that the Derby police and not Sampson arrested the defendant is supported by substantial evidence and, thus, not clearly erroneous.

The trial court properly denied the defendant’s motion to suppress and motion to dismiss.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       General Statutes § 14-227a (a) provides: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       Because the defendant has not provided an independent analysis to support his state constitutional claim, we will not review it. Our Supreme Court and this court have declined to review a defendant’s state constitutional claim, deeming it to have been abandoned, when the defendant has not separately briefed and analyzed that claim. See, e.g., State v. Hernandez, 204 Conn. 377, 394 n.9, 528 A.2d 794 (1987); State v. Redente, 19 Conn. App. 521, 531 n.5, 563 A.2d 1365 (1989); State v. Thompson, 17 Conn. App. 490, 498 n.5, 554 A.2d 297, cert. denied, 211 Conn. 803, 559 A.2d 1136 (1989). That declination, however, does not mean that we are not able to review such a claim if we choose to do so. State v. Hoeplinger, 27 Conn. App. 643, 652 n.2, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992); State v. Geisler, 25 Conn. App. 282, 283-84 n.2, 594 A.2d 985 (1991), aff'd, 222 Conn. 672, 610 A.2d 1225 (1992).

       General Statutes § 54-lf provides in pertinent part: “(a) For purposes of this section, the respective precinct or jurisdiction of a deputy sheriff or a special deputy sheriff shall be wherever he is required to perform his duties. Peace officers, as defined in subdivision (9) of section 53a-3, in their respective precincts, shall arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others, provided that no constable elected pursuant to the provisions of section 9-200 shall be considered a peace officer for the purposes of this subsection, unless the town in which such constable holds office provides, by ordinance, that constables shall be considered peace officers for the purposes of this subsection.
      “(b) Members of the division of state police within the department of public safety or of any local police department or any chief inspector or inspector in the division of criminal justice shall arrest, without previous complaint and warrant, any person who the officer has reasonable grounds to believe has committed or is committing a felony. ...”

       Sampson was also a member of the Derby volunteer fire department. His vehicle was equipped with a blue fire department light and a cellular phone.

       We note that this court in State v. Stevens, 26 Conn. App. 805, 813, 603 A.2d 1203 (1992), aff'd, 224 Conn. 730, 502 A.2d 789 (1993), stated that, “[w]hen a police officer, acting as a private person, makes a lawful extraterritorial arrest for operating under the' influence of alcohol, evidence resulting from various types of sobriety and chemical tests can be admissible at trial.” This is dicta, however, as both the Appellate Court and the Supreme Court in its decision affirming the Appellate Court decided, for the purposes of the statute involved, that the arresting officer was acting as a police officer and not as a private citizen.

       Among the decisions that have found that an off duty police officer was acting in his or her official capacity are the following: People v. Martin, 225 Cal. App. 2d 91, 36 Cal. Rptr. 924 (1964) (three Los Angeles police officers were acting in their official capacity when, while acting in the performance of their duties as police officers, they arrested defendant outside of their jurisdiction); State v. Wilkerson, 367 So. 2d 319, 321 (La. 1979) (deputy sheriff never truly goes off duty, so the protections of United States constitution are always implicated); State v. LeGassey, 456 A.2d 366 (Me. 1983) (off duty Baxter State Park ranger who happened upon defendant, after defendant had plunged his car into snowbank, was acting in his official capacity when ranger placed defendant in ranger truck which bore state insignia and told him to stay there); State v. Brothers, 4 Or. App. 253, 478 P.2d 442 (1970) (off duty chief of police, who was called to scene of shooting in his capacity as ambulance driver, was acting within his official capacity as police officer when he returned to scene of shooting, after taking victim to hospital, and entered apartment without permission and conducted search of premises); Commonwealth v. Eshelman, 477 Pa. 93, 383 A.2d 838 (1978) (off duty auxiliary police officer who came across abandoned car while looking for friend in woods was acting in his capacity as police officer when he retrieved package he suspected contained marijuana and gave it to local sheriff).
      Among the decisions that have found that an off duty police officer was acting in a private capacity are the following: People v. Wachter, 58 Cal. App. 3d 911, 130 Cal. Rptr. 279 (1976) (off duty deputy sheriff, who was visiting farm with friend and discovered marijuana growing on farm, was not acting in his capacity as law enforcement officer when he communicated its existence to local authorities); State v. Castillo, 108 Idaho 205, 697 P.2d 1219 (1985) (off duty police officer was not acting in his official capacity when he turned over to police letter addressed to member of his family which he had opened after discovering that small amount of “brownish-green plant material” had spilled out at post office where he was picking up family mail); Stevenson v. State, 43 Md. App. 120, 403 A.2d 812 (1979) (off duty police officers were not acting in course of investigation when they apprehended appellants and, therefore, were not acting in their official capacity); State v. Walker, 236 Neb. 155, 459 N.W.2d 527 (1990) (off duty police officer-landlord who discovered drug paraphernalia and possible drugs in his tenants’ apartment while there in his capacity as landlord, immediately called police and advised tenants to sit down and wait for police to arrive was not acting in his official capacity); State v. Pearson, 15 Or. App. 1, 514 P.2d 884 (1973) (off duty police reserve officer was not acting in his official capacity when he discovered marijuana in car, on which he was working while in his employment as mechanic, and reported it to police).

       There is no indication in the record that the Derby police in any way directed or authorized Sampson to act as their agent or instrumentality. See United States v. Bennett, 709 F.2d 803, 805 (2d Cir. 1983). The record reveals that Sampson followed Andrews and flashed his lights only to warn oncoming drivers of the danger posed by Andrews’ erratic driving.

       See footnote 4.

       In State v. Fleming, 198 Conn. 255, 262-63, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986), our Supreme Court held that “an illegal arrest imposes no jurisdictional barrier to a defendant’s subsequent prosecution. . . . Where the fairness of a subsequent prosecution has not been impaired by an illegal arrest, neither the federal nor the Connecticut constitution requires dismissal of the charges or a voiding of the resulting conviction.” Because we have concluded that the trial court was not clearly erroneous in its finding that the Derby police and not Sampson arrested the defendant, we need not conduct a Fleming analysis.


author: Lavery, J.

text:
    Michael Robinson v. Southern New England Telephone Company
    (11638)
    Dupont, C. J., Lavery and Schaller, Js.
    Submitted on briefs December 10, 1993
    decision released February 15, 1994

      Jamie L. Mills filed a brief for the appellant (plaintiff).

      Diana Garfield, Burton Kainen and Dana Shaw MacKinnon filed a brief for the appellee (defendant).
   Lavery, J.

This case comes before us by order of our Supreme Court remanding it for consideration in light of that court’s decision in Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, 628 A.2d 946 (1993). This court previously affirmed the trial court’s judgment in this case. Robinson v. Southern New England Telephone Co., 31 Conn. App. 925, 626 A.2d 2, remanded for reconsideration, 227 Conn. 916, 632 A.2d 695 (1993). In light of Genovese v. Gallo Wine Merchants, Inc., supra, we now reverse the judgment of the trial court and remand the case for trial.

In this case, Michael Robinson, the plaintiff, was employed by Southern New England Telephone (SNET) until discharged in 1988. Robinson filed a grievance under his union’s collective bargaining agreement claiming that SNET discharged him without just cause. Robinson’s grievance was submitted for arbitration. After a hearing, the arbitration panel concluded that Robinson had been discharged for just cause.

Robinson then filed suit in the Superior Court, claiming that he had been discharged in violation of General Statutes § Sl-Slq. SNET moved for summary judgment asserting that Robinson’s claims had been fully adjudicated by arbitration and were, therefore, precluded by the doctrine of collateral estoppel. The trial court granted summary judgment in favor of SNET and this court affirmed.

Generally, factual determinations made in final and binding arbitration proceedings are entitled to preclusive effect under the doctrine of collateral estoppel. Id., 483. Our Supreme Court ruled in Genovese, however, that arbitration has no effect on an employee’s ability to file suit on an independent statutory claim. Id., 484. Thus, even if an employee loses an arbitration proceeding, that employee is not precluded from pursuing his statutory rights in the Superior Court. Id.

Thus, it is clear that in the present case the trial court improperly granted summary judgment on the ground of collateral estoppel. The fact that Robinson’s discharge was fully litigated before the arbitration panel has no effect on his suit. Submission of a claim to arbitration under a collective bargaining agreement does not preclude, by the doctrine of collateral estoppel, a statutory cause of action in the Superior Court. Id., 493.

The judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

In this opinion the other judges concurred.

       General Statutes § 31-51q provides in pertinent part: “Any employer . . who subjects any employee to . . . discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution . . . provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and employer, shall be liable to such employee for damages . . . .”


author: Landau, J.

text:
    State of Connecticut v. Lamont A. Barnes
    (11640)
    Landau, Freedman and Schaller, Js.
    Argued November 3, 1993
    decision released February 15, 1994

      Susan M. Hankins, assistant public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Edward Wilson, assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant appeals from his conviction, rendered after a jury trial, of larceny in the third degree in violation of General Statutes § 53a-124 (a) (2). The defendant claims that the trial court improperly (1) instructed the jury as to the value of the property taken, (2) penalized the defendant at sentencing because he would not admit his guilt, (3) excluded testimony on cross-examination thereby violating the defendant’s constitutional rights to confrontation and to present a defense, and (4) instructed the jury as to its duties.

The jury reasonably could have found the following facts. On December 21,1991, at approximately 12:20 p.m., Julius Levine was watching television in his living room when the defendant knocked on his door. Levine had been acquainted with the defendant for fifteen years through a mutual friend. Levine allowed the defendant to join him. In Levine’s living room was a Christmas tree with several gifts beneath it. At about 1:30 p.m., Janice Levine, Julius’ wife, returned from shopping. She had purchased a set of crystal dishes and a pair of men’s white Nike sneakers, which she placed with the other gifts under the tree. She also purchased a pair of boys’ white Fila sneakers for their son. The son told the defendant how much he liked his new sneakers. While the defendant was at the Levine’s, he helped Levine move some chairs to the basement.

The Levines prepared for a Christmas party while the defendant cut their son’s hair downstairs. At approximately 6:45 p.m., the defendant left the Levines’ house. The Levines left for their scheduled party at 7:30 p.m. and took their children to a neighbor’s house. Upon their return at 10:30 p.m., the Levines discovered the backdoor open, the basement window kicked in, and the presents and other items missing. Gift wrappings were found in the Levines’ backyard in a trash bag. The missing items included a VCR, sweaters, pants, two sterling bracelets, boots, the sneakers, the set of dishes, Barbie dolls, doll accessories, and many other articles. The value of the missing merchandise was $2100.

That same evening, the defendant visited a friend, Shelly Brown, whose house was within walking distance of the Levines’. The defendant showed Brown two children’s sterling bracelets, which he claimed he had purchased. The defendant left Brown’s house and returned with two shopping bags of items that included clothing, baby doll accessories, a set of crystal dishes, a pair of men’s Nike sneakers and a pair of boys’ Fila sneakers. Brown bought the set of crystal dishes from the defendant for $10.

On December 22, 1991, Edward Hill visited Brown’s house and took the set of dishes from her. Hill returned the dishes to the Levines who acknowledged that the set was the one that Janice Levine had purchased the day before. Brown was visited by the police and Levine; she gave a signed statement as to the circumstances of the defendant’s visit and sale to her of the dish set.

I

The defendant first claims that the trial court’s instruction to the jury concerning larceny in the third degree as to the element of value diluted the state’s burden of proof, thereby violating his due process rights. The defendant concedes that this claim was not preserved at trial. He seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). In Golding, the Supreme Court held that a defendant can prevail on an unpreserved claim of error if all of the following conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 239-40. “Although we generally do not consider a claim regarding the giving of an improper instruction or the failure to give a proper instruction unless the claim is properly preserved at trial . . . [t]his court has consistently held that a claim that the judge improperly instructed the jury on an element of an offense is appealable even if not raised at trial.” (Citation omitted; internal quotation marks omitted.) State v. Hinton, 227 Conn. 301, 308, 630 A.2d 593 (1993). Because this defendant’s claim concerns the value of property acquired by the defendant, an essential element of the crime of larceny in the third degree, he has satisfied the second prong of Golding.

The defendant’s claim fails under the third criterion of Golding because the alleged constitutional violation does not clearly exist. The defendant argues that the jury instruction required the state to prove only that the value of the goods taken from the Levines exceeded $1000 instead of requiring the state to prove that the value of the goods taken by the defendant exceeded $1000. The state’s contention is that the information, which provided a clear and accurate recitation of the offense of larceny in the third degree, was incorporated into the jury instruction, and, therefore, there was no reasonable possibility that the challenged portion of the charge diluted the state’s burden of proof. We agree with the state.

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

The jury was adequately instructed on the crime of larceny in the third degree and there is no reasonable possibility that the jury was misled by the charge. Our review of the charge in its entirety indicates that the trial court, which did make a misstatement as to value, did in fact incorporate the information into the jury charge. Prior to delivering the challenged instruction, the trial court read the information to the jury. The court also charged the jury on General Statutes § 53a-124 (a) (2), larceny in the third degree. See State v. Pollitt, 205 Conn. 132, 151, 531 A.2d 125 (1987) (jury instruction not misleading where court read information and relevant part of statute before charge was given). The claim of error the defendant is asserting is an attempt to isolate a small portion of the charge. See State v. Giannotti, 7 Conn. App. 701, 707, 510 A.2d 451, cert. denied, 201 Conn. 804, 513 A.2d 700 (1986). Upon review of the entire charge, it is not reasonably possible that the jury was misled in reaching its verdict. Therefore, the defendant has failed to demonstrate that a constitutional violation clearly exists as required by Golding for unpreserved claims, and we will not review this claim.

II

The defendant claims that the trial court’s consideration at his posttrial sentencing of the defendant’s insistence of innocence and his refusal to assume responsibility violated his constitutional rights to due process, a fair trial, his right against self-incrimination, and his statutory right to appeal. He asserts that the trial court penalized him at sentencing because he continued to maintain his innocence. This claim was also unpreserved and the defendant seeks review under Golding and Evans. We conclude that the defendant has not satisfied the third prong of Golding in that he has not established the existence of a clear constitutional violation.

“ ‘A sentencing judge has very broad discretion in imposing any sentence within the statutory limits ....’” State v. Huey 199 Conn. 121, 126, 505 A.2d 1242 (1986). In exercising that discretion, a judge may “consider a wide variety of information” sufficiently reliable without offending the principles of due process. Id., 127. In Huey, as in the present case, the defendant did not assert his privilege against self-incrimination, but instead, with legal representation, voluntarily responded to the court’s offer to address the court. The Huey court held that the privilege against self-incrimination, under such circumstances, is not self-executing and a defendant wanting to assert his fifth amendment right must assert it in a timely fashion. Id., 129. No attempt was made by the sentencing judge to force the defendant to admit guilt; he was merely given the opportunity to present his version of the incident. This is a perfectly acceptable practice in sentence hearings and the judge has the discretion to believe the defendant’s version or not. Id.

Our Supreme Court, in Huey, held that the trial court’s consideration of a defendant’s denial of guilt at a sentence hearing was an acceptable factor for a sentencing judge to consider when formulating a just sentence because it is indicative of a defendant’s rehabilitative potential. Id. The court’s position in Huey is consistent with the decisions of other jurisdictions that have considered identical claims of error. In United States v. Miller, 589 F.2d 1117 (1st Cir. 1978), cert. denied, 440 U.S. 958, 99 S. Ct. 1499, 59 L. Ed. 2d 771 (1979), the Court of Appeals for the First Circuit held that the sentencing court’s consideration of the defendant’s failure to recant is acceptable in determining an individual’s potential for rehabilitation. Id., 1138. The Miller court differentiated this practice from the unacceptable practice of punishing a defendant for maintaining his innocence. Id. Likewise, several other jurisdictions, both federal and state, recognize that a continued protestation of innocence and lack of remorse indicate to the sentencing judge the individual’s prospect for rehabilitation. See United States v. Johnson, 903 F.2d 1084, 1090-91 (7th Cir. 1990); People v. Ward, 113 Ill. 2d 516, 531-32, 499 N.E.2d 422 (1986); People v. Wesley, 428 Mich. 708, 714-15, 411 N.W.2d 159, cert. denied, 484 U.S. 967, 108 S. Ct. 459, 98 L. Ed. 2d 399 (1987).

In the present case, the sentencing judge properly-related the defendant’s refusal to admit responsibility and claims of innocence to the likelihood of his rehabilitation, rather than imposing a harsher punishment for his recalcitrant nature. Given the broad discretionary powers of sentencing judges, the Supreme Court’s holding in Huey, and similar rulings in other jurisdictions, we conclude that the defendant has not satisfied the third prong of Golding. He cannot prevail on this unpreserved claim because it is not reviewable.

Ill

The defendant claims that the trial court’s exclusion of testimony on cross-examination violated his constitutional rights to confrontation and to present a defense.

The trial court did not allow the defendant to elicit testimony from Levine on cross-examination as to whether Levine suffered from drug addiction or whether he and his wife were experiencing financial difficulties. The defendant contends that such testimony would have demonstrated the victims’ motive for reporting a false theft claim in order to collect insurance money. The defendant argues that the trial court abused its discretion in excluding the testimony. We disagree.

It is undisputed that the defendant has a right to confront and to cross-examine witnesses against him for the purpose of exposing prejudice, bias or motive. U.S. Const., amends. VI, XIV; Conn. Const., art. I, § 8; State v. James L., 26 Conn. App. 81, 83, 598 A.2d 663 (1991). Neither the state nor the federal constitution, however, “requires that the defendant be permitted to present every piece of evidence he wishes.” State v. James L., supra. “If the proffered evidence is not relevant, the defendant’s right of confrontation is not affected and the evidence should be excluded.” Id., citing State v. Kelly, 208 Conn. 365, 376, 545 A.2d 1048 (1988). In determining the scope of cross-examination, the trial court is granted broad discretion. State v. Cooper, 227 Conn. 417, 431, 630 A.2d 1043 (1993).

During cross-examination of Levine, the defendant posed questions to the state’s witness and the state objected to each question. The trial court sustained each objection, and the proffered testimony was excluded. The defendant took exceptions, but the defendant failed to present an offer of proof as to Levine’s alleged motive to fabricate a theft claim.

In order to evaluate any claim of error, this court must be furnished with “an adequate record on which to review the rulings of the trial court . . . .” State v. James L., supra, 86. It is the appellant’s burden to create an adequate appellate record to support his claim. Id., 84. The defendant has failed to meet this burden. “If he wanted to provide this court with an adequate appellate record, he should have presented an offer of proof. An offer of proof, properly presented, serves three purposes. First, it should inform the court of the legal theory under which the offered evidence is admissible. Second, it should inform the trial judge of the specific nature of the offered evidence so the court can judge its admissibility. Third, it thereby creates a record adequate for appellate review.” (Internal quotation marks omitted.) Id., 84-85. The defendant did not make an offer of proof corroborating his theory that the Levines’ ulterior motive in claiming theft was to commit insurance fraud.

“ ‘The significant gap in the record . . . limits our review and presents obstacles to reviewing the defendant’s claim of error on this appeal. ... In the absence of an appropriate offer of proof, this court cannot speculate as to what line of questioning defense counsel intended to follow. A claim on appeal cannot be based on an assumption that the trial court acted improperly. . . . Without an adequate record on which to review the rulings of the trial court, this court must assume that the trial court acted properly. . . .’ ” (Citations omitted.) Id., 85-86. Thus, we conclude that the defendant’s right to confrontation and to present a defense were not abrogated.

IV

The defendant’s final claim is that the trial court’s charge to the jury regarding its duty violated his constitutional rights because it was unfairly slanted in favor of conviction. This claim is based on the following language: “If the Court has expressed or intimated any opinion as to the facts, you are not bound by that opinion. What the verdict shall be is your sole and exclusive duty and responsibility.

“The defendant justly relies upon you to carefully consider his claims, to carefully consider all of the evidence and find him not guilty if the facts and the law require such a verdict. He rightfully expects fair and just treatment at your hands.

“The state of Connecticut and its people, on the other hand, look to you as sworn officers of the court to deal fairly, firmly, honestly and justly as strong minded persons with the interests of the state in your hands as an arm of this court to aid in upholding the law of the land and to render a verdict of guilty if the facts and the law require such a verdict.”

The defendant argues that the charge given implied that if the jurors “as sworn officers of the court” with duties of “strong minded persons” vote to acquit, they would be evading their responsibilities. He claims that that implication violates his rights to due process. This claim was not preserved at trial; therefore, the defendant seeks review under the Golding doctrine and, alternatively, the plain error rule. We conclude that the trial court’s instruction did not constitute a violation of constitutional dimension or plain error.

Our Supreme Court’s decision in State v. Walton, 227 Conn. 32, 630 A.2d 990 (1993), addressed the defendants’ unpreserved claim that the trial court’s charge was unfairly slanted toward conviction with virtually identical instructions as those complained of in this case.

The Walton court made clear “that jurors are no less ‘officers of the court’ and act no less as an ‘arm of the court’ if they vote to acquit rather than to convict”; id., 63; the court expressed the preference that a trial court omit such language or be as laudatory toward acquittal as toward conviction. The court concluded that the defendant’s claim failed to meet the second requirement of Golding, i.e., that “the claim is of constitutional magnitude alleging the violation of a fundamental right.” State v. Golding, supra, 239. Under the circumstances of the Walton case, the court concluded that the defendants had clothed a nonconstitutional claim in constitutional garb. State v. Walton, supra, 64. The same claims and arguments presented in this case were made and resolved in State v. Walton, supra. We conclude that the defendant’s claim does not rise to the level of constitutional error.

The defendant’s claim does not constitute plain error. Plain error review “is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Budlong v. Nadeau, 30 Conn. App. 61, 66, 619 A.2d 4 (1993). Our review indicates that the instructions were appropriately evenhanded. The trial court informed the jurors of their duties as fact finders, a job not permitting them “to resort to guesswork, conjecture or suspicion.” The charge instructed the jury “to carefully consider all of the evidence and find [the defendant] not guilty if the facts and the law require such a verdict.” We are not persuaded that the challenged language comprises an error so apparent as to affect the fairness and integrity of the proceedings. We will not review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-124 (a) provides in pertinent part: “A person is guilty of larceny in the third degree when he commits a larceny as defined in section 53a-119 and . . . (2) the value of the property or service exceeds one thousand dollars . . . .”
      General Statutes § 53a-119 provides in pertinent part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . .

       The Levines’ submitted receipts to their insurance company, which reimbursed them $2100.

       The instruction of which the defendant complains is as follows: “The state must prove beyond a reasonable doubt that the defendant committed larceny as set forth in the information, and as that has now been defined for you, and, further, that the state has proven beyond a reasonable doubt that the property allegedly stolen from the Levines had a value exceeding $1000 as value as now been defined for you.
      “If you find that the state has proven these elements beyond a reasonable doubt, you can find the defendant guilty of larceny in the third degree as is alleged in the second count of the information.”

       The state was required to prove that the value of the property stolen by the defendant exceeded $1000, not as the trial court stated, “that the property allegedly stolen from the Levines had a value exceeding $1000 }}

       The court’s instruction that incorporated the information was as follows: “The second count of the information accuses Lamont Barnes of larceny in the third degree, and charges that. . . Lamont Barnes, with the intent to deprive another of property or to appropriate the same to himself or a third person, wrongfully took such property valued at more than $1,000 from its owners, Julius and Janice Levine, in violation of Connecticut General Statutes § 53a-124a (a) (2).”

       The trial court stated: “[T]he defendant has been charged with a violation of larceny in the third degree, § 53a-124a (a) (2). That section of our penal code states, ‘A person is guilty of larceny in the third degree when he commits larceny, and the value of the property exceeds $1000.’ ”

       “As long as the sentencing judge has a reasonable, persuasive basis for relying on the information which he uses to fashion his ultimate sentence, an appellate court should not interfere with Ms discretion.” State v. Huey, 199 Conn. 121, 127, 505 A.2d 1242 (1986), citing United States v. Campbell, 684 F.2d 141, 154 (D.C. Cir. 1982); United States v. Robelo, 596 F.2d 868, 870 (9th Cir. 1979).

       The Hmy court held that the trial court’s consideration of the defendant’s denial of an element of a crime with which he was no longer charged and to which he did not plead guilty was indicative of a lack of potential for rehabilitation and did not violate the defendant’s right to due process.

       The defendant raises this claim under the sixth and fourteenth amendments to the United States constitution and the first article of the Connecticut constitution. Because he fails to analyze his claim under the state constitution, we limit our analysis to the guarantees of the federal constitution. State v. Joly, 219 Conn. 234, 258 n.16, 593 A.2d 96 (1991).

       The following are the inquiries that occurred:
      “[Defense Counsel]: Do you have a drug problem?
      “[Assistant State’s Attorney]: Objection, Your Honor.
      “[Mr. Levine]: No.
      “The Court: Yes, that’s sustained. It’s to be disregarded by the jury.
      “[Defense Counsel]: Did you and [Janice Levine] have a discussion then about finances?
      “[Mr. Levine]: No.
      “[Defense Counsel]: After she had come from the store?
      “[Mr. Levine]: About finances?
      “[Defense Counsel]: Yeah, money?
      “[Mr. Levine]: No.
      “[Defense Counsel]: You weren’t having any financial problems then at all? “[Assistant State’s Attorney]: Objection, Your Honor.
      “The Court: It’s sustained.
      “[Mr. Levine]: No.
      “The Court: That answer is to go out. The objection is sustained; therefore, the question isn’t answered for the record.”

       The defendant claims violation of both the United States constitution and the state constitution. He fails, however, to analyze independently the state constitutional claim; therefore, we limit our review to the federal guarantees. State v. Joly, 219 Conn. 234, 258 n.16, 593 A.2d 96 (1991).

       Practice Book § 4185 provides in pertinent part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interest of justice notice plain error not brought to the attention of the trial court. . . .”

       The following language was the basis of the defendants’ complaint in Walton: “The state of Connecticut . . . looks to you as sworn officers of the court to deal with this case fairly, firmly and honestly as strong minded men and women and with the interest placed in your hands as an arm of the court to aid and uphold the law of the land by rendering a verdict of guilty if the facts and the law require such a verdict.” (Internal quotation marks omitted.) State v. Walton, 227 Conn. 32, 63, 630 A.2d 990 (1993).

       The court held that the defendant’s unpreserved claim had not met the third criterion of Golding as well.


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    State of Connecticut v. Ira Turner
    (11190)
    Dupont, C. J., Lavery and Freedman, Js.
    Argued December 13, 1993
    decision released February 15, 1994

      Andrew S. Liskov, supervisory assistant public defender, for the appellant (defendant).

      Nancy L. Gillepsie, deputy assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John Blawie, assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant, Ira Turner, appeals from the judgment of conviction of assault on a victim aged sixty or older in the second degree in violation of General Statutes § hZarbQb. The defendant claims that the trial court improperly charged the jury regarding self-defense. We reverse the judgment of the trial court.

The jury reasonably could have found that the victim, Modesto Vasquez, was sitting in a metal folding chair on the sidewalk in front of his son’s house in Bridgeport on May 17, 1991, when the defendant walked toward him. The two men had worked together at a local hospital until nineteen months earlier when the defendant was fired for hitting Vasquez in the back. When the defendant approached, Vasquez folded his chair and swung it at him. The defendant punched Vasquez in the face, knocking him to the ground. The defendant then kicked Vasquez twice, causing serious injuries.

At his trial, the defendant testified that he acted in self-defense. The trial court instructed the jury that the defendant deserved acquittal if he had acted in self-defense. The court further instructed the jury that the justification of self-defense “[d]oes not imply the right of attack in the first instance. Therefore, a person claiming this defense must not intentionally provoke or intentionally bring about — bring the attack upon himself in order to provide an excuse to use force against the other person. Thus, if the defendant by his words, conduct, or demeanor in approaching Mr. Vasquez provoked Mr. Vasquez to offer the first blow . . . then the defendant would not be justified in using force against Mr. Vasquez.” The defendant objected to this charge.

After lengthy colloquy, the trial court reinstructed the jury: “[I]f the defendant by his words, conduct, or demeanor in approaching Mr. Vasquez provoked Mr. Vasquez to offer the first blow . . . then the defendant would not be justified in using force against Mr. Vasquez even if it were to prevent himself from being hit by the chair, if he had as an intent in the first place to use force upon Mr. Vasquez.” The defendant objected to this instruction also. The defendant was convicted on November 26, 1991. This appeal followed.

A criminal defendant’s right to due process includes a right to present a defense. State v. Gilchrist, 24 Conn. App. 624, 632, 591 A.2d 131, cert. denied, 219 Conn. 905, 593 A.2d 131 (1991). “This fundamental constitutional right includes properjury instructions on the elements of self-defense so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified. ...” (Citations omitted; internal quotation marks omitted.) Id., 633. “Where an alleged improper instruction is of constitutional dimension, ‘the test is whether it is reasonably possible that the jury was misled.’ . . . It is axiomatic that in reviewing a challenged portion of a jury charge, we must consider the charge as a whole and its effect in guiding the jury to a proper verdict. . . . We do not judge a contested individual section of an instruction in artificial isolation from the overall charge.” (Citations omitted.) Id., 634.

General Statutes § 53a-19 codifies the common law principle of self-defense. That section justifies a defendant’s use of reasonable physical force to defend against perceived use or imminent use of force. The same statute, however, provides that physical force is unjustified where, “with intent to cause physical injury or death to another person, [a person] provokes the use of physical force by such other person . . . .” General Statutes § 53a-19 (c) (1). Thus, this “provocation exception” to the general rule of self-defense requires proof of dual intent: (1) the intent to cause physical injury or death; and (2) the intent to provoke. State v. Hawkins, 19 Conn. App. 609, 616, 563 A.2d 745, cert. denied, 212 Conn. 820, 565 A.2d 540 (1989).

In this case, the trial court failed to instruct the jury regarding the first element. The court told the jury that the defendant’s use of force would be unjustified if he intentionally provoked Vasquez. That statement satisfied the second element of the provocation exception, intent to provoke. The trial court did not, however, explain that the defendant also had to have intended to cause Vasquez physical injury or death when he provoked Vasquez. Absent an intent to cause Vasquez physical injury or death, the defendant’s conduct was not outside the scope of self-defense.

Considering the charge as a whole, we cannot conclude that this instruction guided the jury to a proper verdict. Further, the issue of self-defense was central to the defendant’s case. Therefore, we cannot doubt that this instructional impropriety was harmful.

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

In this opinion the other judges concurred.

       General Statutes § 53a-60b (a) provides: “A person is guilty of assault of a victim sixty or older in the second degree when he commits assault in the second degree under section 53a-60 . . . and the victim of such assault or larceny has attained at least sixty years of age . . . .”

       The defendant also claims on appeal that the trial court improperly (1) admitted uncharged prior misconduct evidence, (2) misled the jury regarding retaliatory force, (3) chose to instruct on self-defense, and (4) unconstitutionally diluted the state’s burden of proving its case beyond a reasonable doubt. Because we find that the trial court improperly charged the jury regarding self-defense and remand the case for a new trial, we need not reach the defendant’s other claims.


text:
    Stacia L. Roberto v. Honeywell, Inc., et al.
    (11705)
    Landau, Freedman and Schaller, Js.

      Argued October 27, 1993
    decision released February 15, 1994

      Karen L. Murdoch, with whom were Wesley W. Horton and, on the brief, M. Hatcher Norris, for the appellant (plaintiff).

      Andrew J. O’Keefe, with whom were Denise Radosevich and, on the brief, Michael J. Walsh, for the appellees (defendants).
   Landau, J.

In this negligence action, the plaintiff appeals from the judgment of the trial court rendered on a jury verdict in favor of the defendants. On appeal, the plaintiff claims that the trial court improperly (1) granted the defendants’ request to amend their answer, and (2) applied Practice Book § 220 (D) to her offer of a rebuttal expert witness.

The following facts are relevant to this appeal. On October 7,1988, a one car collision occurred in Glastonbury. The plaintiff, Stacia L. Roberto, and the defendant, Shannon Garrett, were occupants of the motor vehicle.

On August 15, 1990, the plaintiff commenced an action, sounding in negligence, to recover damages for injuries sustained as a passenger in the vehicle as a result of the collision. Her complaint alleged that the defendant Garrett was the driver of the car and that Garrett’s negligent operation of the vehicle caused the plaintiff’s injuries. The defendants filed an answer on September 30,1991, denying the allegations of negligence and pleading insufficient knowledge to all the remaining allegations, including the allegations relating to the identity of the operator of the motor vehicle. On January 28, 1992, the case was claimed to the trial list. On March 24, 1992, Garrett, in response to the plaintiffs interrogatories, denied that she was operating the car at the time of the collision. On June 1, 1992, pursuant to Practice Book § 220 (D), the defendants timely disclosed Edward McDonough, deputy chief medical examiner of the state of Connecticut, as an expert witness. The plaintiff’s motion to preclude the defendants’ expert testimony was denied. The court ruled that the defendants disclosed their expert within the time specified in § 220 (D). The trial court allowed the plaintiff the opportunity to depose McDonough. On June 1,1992, the defendants also moved to amend their answer; the amended answer denied the plaintiffs allegation that Garrett was driving the vehicle at the time of the collision, and added a special defense alleging that the plaintiff was operating the vehicle and was negligent in that operation. The trial court granted the defendants’ motion to amend and overruled the plaintiff’s objection. Jury selection began on June 4, 1992; the plaintiff began presenting evidence on June 16, 1992.

On June 25, 1992, McDonough testified for the defendants concerning the nature of the plaintiff’s injuries and the consistency of those injuries with the defendants’ theory that the plaintiff was the driver of the vehicle at the time of the accident. On the same day, the defendants’ case was concluded, and the plaintiff sought to call an accident reconstructionist as a rebuttal expert witness. The plaintiff had not disclosed previously this expert witness. The trial court sustained the defendants’ objection to the plaintiff’s rebuttal expert. The jury returned a verdict for the defendants on June 26, 1992; the trial court denied the plaintiff’s motion to set aside the verdict. This appeal ensued.

The plaintiff’s first claim challenges the trial court’s granting of the defendants’ motion to file an amended answer. The trial court allowed the defendants to amend their answer on June 16,1992, the day the plaintiff’s case commenced. The amendment denied the plaintiff’s allegation that Garrett was driving the vehicle, and added a special defense alleging that the plaintiff was the operator of the vehicle at the time of the accident, and was negligent. The plaintiff argues that the trial court should not have allowed the amendment because, even though Practice Book § 176 permits a party to amend his pleading at any time upon request to the court, such amendment should be denied if the parties are unable to join issue in a reasonable time for trial. The plaintiff claims that allowing the amendment caused “prejudice” and “injustice” in the presentation of her case, and thus was an abuse of discretion. The defendants argue that the trial court’s ruling was an appropriate exercise of its discretion. In addition, the defendants contend that the plaintiff cannot claim unfair prejudice or surprise because she was sufficiently forewarned that the defendants disputed the claim that Garrett was the operator of the car at the time of the accident. We agree that the trial court did not exceed its discretion.

“A trial court has wide discretion in granting or denying amendments to the pleadings and rarely will [a reviewing] court overturn the decision of the trial court. . . . We will not disturb the ruling of the trial court in granting or denying amendments to the pleadings unless an abuse of discretion is clearly evident.” (Citations omitted; internal quotation marks omitted.) Howard v. Robertson, 27 Conn. App. 621, 627-28, 608 A.2d 711 (1992). “In reviewing claims that the trial court abused its discretion the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness; the ultimate issue is whether the court could reasonably conclude as it did . . . .’’(Internal quotation marks omitted.) Rokus v. Bridgeport, 191 Conn. 62, 72, 463 A.2d 252 (1983). In the present case, the amendment was permitted because the trial court deemed the special defense “necessary to proceed with trial.” From our review of the record, we conclude that the trial court could have reasonably concluded as it did, and thus acted within its discretion.

The plaintiff next claims that the trial court acted improperly in its application of Practice Book § 220 (D). The plaintiff argues that § 220 (D) does not apply to rebuttal expert witnesses. She contends that the exclusion of her expert witness’ testimony on rebuttal was prejudicial to her case and, thus, the trial court exceeded its discretion. The defendants argue that because the plaintiff did not disclose the rebuttal expert within the sixty days after the date the case was claimed to the trial list, her rebuttal expert is precluded from testifying, pursuant to § 220 (D).

Section 220 (D) applies to rebuttal expert witnesses. The rule provides that if the name of any expert is not disclosed in accordance with this subsection, the expert shall not testify except in the discretion of the trial court for good cause shown. Practice Book § 220 (D). “ ‘The rules of statutory construction apply with equal force to Practice Book rules. ... A basic tenet of statutory construction is that when a statute [or rule of practice] is clear and unambiguous, there is no room for construction.’ ” State v. Charlton, 30 Conn. App. 359, 364, 620 A.2d 1297, cert. denied, 225 Conn. 922, 625 A.2d 824 (1993). Clearly, § 220 (D) accommodates the circumstance in which a plaintiff finds it essential to rebut testimony through the use of an expert opinion after the disclosure time limit has expired. The rule provides a safety valve wherein the determination of whether such an expert will be allowed to testify is a discretionary decision to be made by the trial court after good cause is shown. See Knock v. Knock, 224 Conn. 776, 782, 621 A.2d 267 (1993); Berry v. Loiseau, 223 Conn. 786, 800, 614 A.2d 414 (1992).

In the present case, the trial court applied § 220 (D) and excluded the testimony of the plaintiff’s expert on rebuttal. After noting that the plaintiff failed to make a timely disclosure, the trial court found that the admission of testimony of the rebuttal expert would cause prejudice to the defendants and undue delay. Section 220 (D) permits the trial court the discretion to allow the plaintiff’s expert witness to testify, despite noncompliance with § 220 (D) time limitations, if good cause is shown. Knock v. Knock, supra. The trial court did not apply the standard set out in the rule, i.e., good cause. We recognize that “[n]either § 220 (D) nor the cases interpreting it define what constitutes ‘good cause.’ The language of the rule, however, makes clear that the trial court is to exercise broad discretion in determining whether good cause exists in a given case. ...” (Emphasis added; internal quotation marks omitted.) Berry v. Loiseau, supra. The decision of the trial court is given great weight and deference because “the trial court is in the best position to assess the intent behind the behavior of the offending party . . . .” (Internal quotation marks omitted.) Id., 801. An assessment of the plaintiffs intent as to late disclosure of an expert witness is congruous with a determination as to whether good cause exists. Indeed, good cause is defined as “a substantial reason amounting in law to a legal excuse for failing to perform an act required by law [and] [l]egally sufficient ground or reason.” Black’s Law Dictionary (6th Ed. 1990); see also Slifkin v. Condec Corp., 13 Conn. App. 538, 549, 538 A.2d 231 (1988). Thus, the scope of the trial court’s discretion required it to review the intent and the reasons given by the plaintiff for not disclosing her expert witness within the time frame set forth in § 220 (D), and to determine if those reasons, particular to this case, amounted to good legal excuse. The reasons given by the trial court for excluding the plaintiff’s expert testimony, prejudice and delay, do not constitute a good cause assessment. We conclude that the trial court’s decision to exclude the plaintiff’s expert testimony was not based on an examination of the proper criteria as contained in § 220 (D), and therefore, the trial court exceeded its discretion.

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

In this opinion the other judges concurred.

       Practice Book § 220 (D) provides in pertinent part: “[A]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within 60 days from the date the case is claimed to a trial list. Each defendant shall disclose the names of his or her experts in like manner within 120 days from the date the case is claimed to a trial list. If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subsection, or if an expert witness who is expected to testify is retained or specially employed after that date, such expert shall not testify except in the discretion of the court for good cause shown.”

       The car was owned by the defendant DL Peterson Trust and leased to the defendant Honeywell, Inc. The car was provided to the defendant Warren Garrett by Honeywell, Inc., for business purposes and personal and family use. Our reference to Garrett designates Shannon Garrett.

       Garrett’s responses to the interrogatories were filed four days before the expiration of the plaintiff’s time for disclosure of expert witnesses, but after the plaintiff had disclosed five such experts.

       The plaintiff deposed McDonough on June 22,1992, prior to his testimony at trial, but after her case was rested. The plaintiff rested her case on June 18, 1992.

       The plaintiff claimed, when pressed at oral argument, that she had no idea when her rebuttal expert was retained to testify. She also argued, inter alia, that, no matter when that information became known to her, she had no duty to disclose the expert’s name and proposed testimony prior to presenting the expert because the need for rebuttal expert testimony did not arise until the defendants had rested. Practice Book § 232 provides for a continuing duty upon a party to disclose to an opponent new or additional material or information previously requested; the trial court may impose sanctions for noncompliance with this section. See Berry v. Loiseau, 223 Conn. 786, 801, 614 A.2d 414 (1992); Caccavale v. Hospital of St. Raphael, 14 Conn. App. 504, 507, 541 A.2d 893, cert. denied, 208 Conn. 812, 545 A.2d 1107 (1988); Voight v. Selman, 14 Conn. App. 198, 202, 540 A.2d 104 (1988). We advocate the earliest possible disclosure of such information in order to avoid trial-by-ambush tactics. See Berry v. Loiseau, supra.

       The jury stated in special interrogatories that the plaintiff was the driver of the car.

       The defendants’ original answer denied the allegations as to negligence and pleaded insufficient knowledge as to the remaining allegations, including the allegation that Garrett was driving the vehicle at the time of the accident.

       Practice Book § 176 provides in pertinent part: “The court may restrain such amendments so far as may be necessary to compel the parties to join issue in a reasonable time for trial. . . .”