author: Dupont, C. J.

text:
    Louise Giles v. City of New Haven et al.
    (10952)
    Dupont, C. J., Lavery and Freedman, Js.
    Argued October 2, 1992 —
    decision released January 26, 1993

      Steven J. DeFrank, with whom, on the brief, was David A. Leff, for the appellant (plaintiff).

      Constance L. Epstein, for the appellee (defendant Otis Elevator Company).
   Dupont, C. J.

The plaintiff appeals from a directed verdict, granted by the trial court at the close of the plaintiffs case, in favor of the defendant Otis Elevator Company in an action for personal injuries, claiming that the trial court improperly directed a verdict for the defendant. The sole issue of the appeal is whether the trial court should have concluded, as a matter of law, that the doctrine of res ipsa loquitur could be applied, and, therefore, that the case should have been submitted to the jury. We conclude that the court should have done so, and, therefore, that it was improper for the trial court to direct a verdict for the defendant.

The plaintiff brought suit against the defendant alleging that the defendant was negligent in failing to inspect, maintain and repair the elevator that she was operating, including its compensation chain and in failing to warn her of the defective compensation chain. The plaintiff argues that she presented sufficient evidence for the jury to infer negligence of the defendant because it failed to inspect, maintain and repair the compensation chain of the elevator, and that, therefore, the case should have been submitted to the jury under the doctrine of res ipsa loquitur. We agree.

Directed verdicts are not favored, but may be upheld if the jury could not reasonably and legally have reached a conclusion other than in the moving party’s favor. Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986); Merola v. Burns, 21 Conn. App. 633, 636, 575 A.2d 1025 (1990). In reviewing the trial court’s action in directing a verdict for the defendant, and subsequently refusing to set aside the verdict, we must, view the evidence in a light most favorable to the plaintiff. Petyan v. Ellis, supra; Merola v. Burns, supra. A plaintiff’s case may be established by inferences drawn from circumstantial evidence, but such inferences must be logical and reasonable, and cannot be based on mere conjecture and speculation. Boehm v. Kish, 201 Conn. 385, 389, 517 A.2d 624 (1986); Merola v. Burns, supra.

The plaintiffs claim is dependent on whether the trial court as a matter of law could conclude that the doctrine of res ipsa loquitur should be applied, and the case be allowed to go to the jury. The plaintiff presented no direct evidence of malfunction of the elevator, nor of any defect in the compensation chain, maintenance related or otherwise, to require the submission of the question of the defendant’s negligence to the jury, but instead relies on the doctrine of res ipsa loquitur in order to require the submission of the defendant’s negligence to the jury.

When the doctrine of res ipsa loquitur is invoked, it permits the jury to infer negligence when no direct evidence of negligence has been introduced. Malvicini v. Stratfield Motor Hotel, Inc., 206 Conn. 439, 441-42, 538 A.2d 690 (1988); Schurgast v. Schumann, 156 Conn. 471, 479-81, 242 A.2d 695 (1968). The doctrine neither creates a presumption in favor of the plaintiff nor shifts the burden to the defendant, but merely permits the inference of negligence to be drawn from the circumstances of the incident. Malvicini v. Stratfield Motor Hotel, Inc., supra, 442; Ryan v. George L. Lilley Co., 121 Conn. 26, 30, 183 A. 2 (1936). Thus, the doctrine allows the plaintiff to avoid a directed verdict without directly establishing negligence. It is a rule of circumstantial evidence that allows an inference of negligence if the accident is a type that ordinarily does not occur in the absence of a defendant’s negligence. The doctrine allows an inference to be drawn as to why the accident happened. Malvicini v. Stratfield Motor Hotel, Inc., supra. The determination of whether the doctrine applies is a question of law. Id., 443.

In Connecticut, three conditions must be met for a case to be submitted to the jury on the theory of res ipsa loquitur. They are as follows: “ ‘(1) The situation, condition, or apparatus causing the injury must be such that in the ordinary course of events no injury would result unless from a careless construction, inspection or user. (2) Both inspection and user must have been at the time of the injury in the control of the party charged with neglect. (3) The injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured.’ ” Id., quoting Schurgast v. Schumann, supra.

Whether the doctrine of res ipsa loquitur applies is a matter of law for the initial determination of the trial court, and, therefore, the court must examine the possible causes of the occurrences in order to determine whether the case should be submitted to the jury. Watzig v. Tobin, 292 Or. 645, 651 n.5, 642 P.2d 651 (1982). The court takes into account how accidents of this kind usually occur and the evidence introduced; id.; applying common sense as a factor in the mix. Malvicini v. Stratfield Motor Hotel, Inc., supra, 448. If the court decides “that the probabilities of non-negligent causes are as great or greater than the probability of a negligent cause attributable to the defendant [the court] withdraws the case from the jury.” Watzig v. Tobin, supra. On the other hand, if by using the evidence and the trial court’s own understanding of how similar accidents occur, the court concludes that the probability of a negligent cause attributable to the defendant is as great or greater than the probability of nonnegligent causes, then the case is submitted to the jury. “The conclusion thus reached by the trial judge is tentative only because the jury may conclude otherwise.” Id. When the court is of the opinion that the probability of the defendant’s negligence is greater than the probability of other causes, the jury is entitled to reach the same conclusion. Id.

In this case, the trial court could reasonably have considered certain facts in determining whether the doctrine of res ipsa loquitur applies. For fourteen years, the plaintiff was an elevator operator for one of the three elevators in the Powell Building in New Haven. On the date her injuries were sustained, the elevator she was operating was ascending from the first floor to the twelfth floor when its compensation chain became hooked on a rail bracket located on the wall of the elevator shaft. The plaintiff was not able to control the movement of the chain from the interior of the cab. Once hooked, the chain then tightened up and broke free from two bolts securing it to the underside of the cab. The cab began to shudder and shake, and the plaintiff struck her head and shoulder against the walls of the cab. The chain then fell to the bottom of the elevator shaft with a loud crash, which frightened the plaintiff. Upon hearing the crash, the plaintiff, fearing for her safety, reversed the direction of the elevator as it was approaching the twelfth floor. She directed the elevator to the nearest floor, the eleventh, where she jumped from the cab sustaining additional injuries. At the time the plaintiff received her injuries, the defendant had a longstanding exclusive contract with the building owner to maintain and inspect the elevator and its component parts. The elevator was installed by the defendant approximately sixty-one years before the accident. William Hendry, the defendant’s district maintenance supervisor, testified that the accident was caused by the compensation chain’s becoming hooked on a rail bracket in the elevator shaft due to excessive sway of the chain. Hendry farther testified that the elevators were routinely inspected, but that neither inspection nor testing of the compensation chain was part of that routine inspection. The bolts that held the compensation chain to the underside of the elevator cab were never changed, and no one other than the defendant company touched the compensation chain or the bolts.

On cross-examination, Hendry testified that the normal sway of a compensation chain is approximately one to two inches, and in order for the chain to get hooked on a rail bracket it must sway at least eighteen inches. He further testified that for the chain to sway eighteen inches there must be some misoperation of the elevator, such as rapid reversals of direction. He had never before seen a compensation chain pulled free of an elevator cab in his thirty-seven years of employment by the defendant. He further stated that on one occasion he had seen the plaintiff make rapid reversals of direction of the elevator.

The plaintiff, however, testified that her ascension from the first to the twelfth floor was routine until she approached the twelfth floor, and that the cab began to shake and sway before she reversed its direction to the eleventh floor. She further testified that the crash of the compensation chain as it hit the bottom of the elevator shaft occurred before she reversed the direction of the cab. If a jury believed that she did not do anything to cause the shaking of the cab or the dislodging of the chain, her act of reversing the direction could not be found to have caused the occurrence.

We conclude that the plaintiff presented sufficient evidence as to each element required by the doctrine of res ipsa loquitur for the court to have submitted the question of its application to the jury. As for the first element, we agree with the parties that the accident would not have occurred unless someone was negligent. We also conclude that the third element for application of the doctrine was satisfied. The plaintiff maintains that she was not contributorily negligent. The defendant argues that she was. We conclude that even if she were contributorily negligent in reversing the direction of the elevator, in a jurisdiction that applies the doctrine of comparative negligence, such as Connecticut, any negligence on the plaintiffs part would only reduce the amount of damages, rather than bar the case from being submitted to the jury. See Malvicini v. Stratfield Motor Hotel, Inc., supra, 444; Watzig v. Tobin, supra, 650 n.4. With the adoption of the doctrine of comparative negligence, a plaintiff can be a participant in the events leading up to the injuries suffered without depriving the plaintiff of the use of the doctrine of res ipsa loquitur as long as the plaintiff was not the sole cause of the injuries. See Malvicini v. Stratfield Motor Hotel, Inc., supra. The doctrine of res ipsa loquitur may apply even if the plaintiffs actions contributed to the injury. Watzig v. Tobin, supra.

The plaintiff claims that the element of control that is necessary for an application of the doctrine has been met because she did not have any control over the compensation chain. She testified that she never touched any of the exterior parts of the elevator, and that her operation of the elevator did not constitute control of the elevator. She asserts that the defendant had exclusive control of the compensation chain because of the defendant’s exclusive contract to maintain the elevator and its parts. The defendant argues that the control element was not met because the plaintiff manually controlled the upward and downward movement of the elevator, thereby indirectly controlling the compensation chain. Because the compensation chain was attached to the elevator and responded to the movements of the elevator, the defendant asserts that the plaintiff as the person in control of the elevator had control over its attached parts. Relying on Malvicini, the defendant claims that the manual control of the elevator by the plaintiff negates any supposition that the defendant had exclusive control and therefore precludes the application of the doctrine of res ipsa loquitur. The facts of Malvicini, however, are distinguishable.

In Malvicini, the plaintiff, a guest at the defendant’s hotel, suddenly heard a “pssst” sound and was hit by steaming hot water while he was taking a shower, causing him to fall and suffer first degree burns as well as a concussion and other injuries. The trial court refused to charge the jury on the theory of res ipsa loquitur, and the plaintiff appealed. Because there was evidence that the plaintiff had adjusted the faucets on the day in question, as well as the night before, the Supreme Court held that the plaintiff failed to meet the control element of the theory of res ipsa loquitur. The complaint in Malvicini alleged that the defendant had exclusive control over the instrumentality, and, thus, the court discussed control in terms of exclusivity. In the present case, the plaintiff did not allege that the defendant had exclusive control over the instrumentality. Nor is such an allegation necessary in order to seek application of the doctrine.

The Malvicini court stated that in order “[f]or the control condition of the res ipsa loquitur doctrine to apply, the plaintiff must adduce evidence from which the court, as a matter of law, can properly determine that a jury could reasonably draw an inference that it is more probable that not that the person whose negligence caused the injury was the defendant and not some other party.” Malvicini v. Stratfield Motor Hotel, Inc., supra, 446. This statement implies that, in a jurisdiction with comparative negligence, exclusive control is not required in order to submit a case to the jury on the theory of res ipsa loquitur. Rather, the control element requires a balancing test in which a court must determine whether a rational basis exists for concluding that it was more probable than not that the plaintiff’s injuries were attributable to the defendant’s negligence. Malvicini cites Watzig with approval. Watzig makes it clear that control element used as a test for the application of the doctrine need not be exclusive. The submission of the case to the jury in Connecticut requires “control of the party charged with neglect.” Schurgast v. Schumann, supra, 480. The adjective, “exclusive” is conspicuously absent. Malvicini makes it clear that exclusive control is not a requirement for application of the doctrine, but rather a requirement that control exists and that the application supports fairness. Malvicini v. Stratfield Motor Hotel, Inc., supra.

On the facts of this case, the trial court could reasonably have determined that the probability that the plaintiffs injuries were attributable to the alleged negligent actions of the defendant was as great or greater than the probability of a negligent cause attributable to the plaintiff, and that, therefore, the case should have been submitted to the jury for its ultimate determination.

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

In this opinion the other judges concurred.

       We refer herein to the defendant Otis Elevator Company as the defendant. The prior granting of summary judgment for the defendant city of New Haven is not part of this appeal.

       The plaintiff also claims that the trial court should not have admitted certain evidence. In view of our disposition of her first claim, it is unnecessary to reach the second claim.

       A compensation chain is a balancing mechanism that compensates for the transfer of weight during an elevator’s operation. The chain involved in this case was approximately 120 feet in length, extending through the twelve stories of the building, and weighed approximately 360 pounds.

       This balancing test has been followed in several jurisdictions that have adopted comparative negligence. See Dermatossian v. New York City Transit Authority, 67 N.Y.2d 219, 492 N.E.2d 1200, 501 N.Y.S.2d 784 (1986); Watzig v. Tobin, 292 Or. 645, 642 P.2d 651 (1982); Montpelier v. Duranleau, 145 Vt. 237, 485 A.2d 1269 (1984).


source: Caselaw Access Project

author: Freedman, J.

license: Public Domain

text:
    Carabetta Builders, Inc. v. Hotz Corporation Hotz Corporation v. Carabetta Builders, Inc.
    (11163)
    Daly, Lavery and Freedman, Js.
    Argued December 10, 1992 —
    decision released January 26, 1993

      Dominic J. Aprile, with whom was Thomas E. Katon, for the appellant (plaintiff in the first case, defendant in the second case).

      Thomas G. Librizzi, with whom was Linda J. Cam nata, for the appellee (defendant in the first case, plaintiff in the second case).
   Freedman, J.

Carabetta Builders, Inc. (Carabetta), appeals from the trial court’s granting of Hotz Corporation’s (Hotz) application to confirm an arbitration award and from the trial court’s denial of Carabetta’s application to vacate, correct or modify the arbitration award. Carabetta presents a plethora of issues to this court, but when these issues are properly scrutinized, they come down to the following: Did the trial court improperly (1) find that the arbitration proceedings were governed by the Connecticut law of arbitration rather than the federal arbitration law and (2) confirm the arbitration award rather than vacating, correcting or modifying it? We affirm the judgment of the trial court.

The following facts are relevant to this appeal. On November 10,1988, Hotz and Carabetta, both Connecticut corporations, entered into a written subcontract that called for Hotz to fabricate and supply structural steel and other components to Carabetta, the general contractor for the construction of a high-rise condominium building in Asbury Park, New Jersey.

Article 13 of the subcontract, entitled “arbitration,” states in pertinent part that “[a]ll claims, disputes, and other matters in question arising out of, or relating to, this Subcontract, or the breach thereof, shall be decided by arbitration . . . .” Article 15.2 (5), contained in schedule A of the subcontract, further provides that “[a]ny dispute arising under this agreement shall be submitted (by action of either or both parties) to arbitration under the rules of the American Arbitration Association. If the parties fail to agree upon the selection of a single arbitrator, then the selection of a single arbitrator will be made as promptly as possible by the American Arbitration Association in accordance with its procedures for such selection. The arbitration proceeding shall take place in Meriden, CT. The determination by the arbitration shall be [final] and binding on the parties and may be enforced by any court of competent jurisdiction. The arbitration proceeding shall be in accordance with Connecticut law.”

A dispute arose between the parties regarding the performance of the subcontract during the course of its performance. On March 20, 1990, Hotz filed a demand for arbitration with the American Arbitration Association, in which Hotz sought “[a] determination of all sums due Hotz, including, but not limited to, past due progress payments, subcontract balance due, compensation for extra and additional work, interest, losses incurred as a result of Carabetta’s failure to pay Hotz and loss of use of money on the aforedescribed sums, as well as reimbursement of its attorneys’ fees and costs of this arbitration.” Thereafter, Carabetta filed an answer and counterclaim. Carabetta denied all of Hotz’ claims and sought damages from Hotz for a number of alleged breaches of the subcontract by Hotz.

Hotz and Carabetta agreed on an arbitrator and after a lengthy hearing the arbitrator awarded to Hotz the sum of $2,470,701 on May 30, 1991, which included interest through June 1, 1991. The arbitrator denied Carabetta’s counterclaim against Hotz. It is from this decision that Hotz filed its application to confirm the award and Carabetta filed its application to vacate, correct or modify the award.

Carabetta argues that the trial court in deciding this matter should have applied the Federal Arbitration Act (FAA), 9 U.S.C.A. § 1 et seq., rather than General Statutes §§ 52-417 through 52-419, inclusive. We disagree.

The language of the subcontract is clear and unambiguous. When that is so, “the contract is to be given effect according to its terms.” Barnard v. Barnard, 214 Conn. 99, 110, 570 A.2d 690 (1990); Thompson & Peck, Inc. v. Harbor Marine Contracting Corporation, 203 Conn. 123, 131, 523 A.2d 1266 (1987). The words “[t]he arbitration proceeding shall be in accordance with Connecticut law” contained in the subcontract leave no doubt that the parties intended that the applicable sections of the General Statutes should govern the arbitration proceedings, including §§ 52-417 to 52-419 which govern judicial review of arbitration awards.

In Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U.S. 468, 109 S. Ct. 1248, 103 L. Ed. 2d 488 (1989), the United States Supreme Court held that the FAA did not preempt state law where the arbitration agreement provided that state law would govern, even though the contract involved interstate commerce. “Arbitration under the [FAA] is a matter of consent, not coercion, and parties are generally free to structure their arbitration agreements as they see fit. Just as they may limit by contract the issues which they will arbitrate ... so too may they specify by contract the rules under which that arbitration will be conducted.” (Citation omitted.) Id., 479. Carabetta argues, however, that because the subcontract with Hotz was executed before the Supreme Court’s decision in Volt, the parties could not have known that the FAA would not govern and therefore they could not have intended that state law would govern. This circuitous argument is without merit. Among other of its flaws, it overlooks the fact that the contract in Volt, which the court held demonstrated the intent of the parties to have state law govern the arbitration proceeding, was quite obviously also executed before the Volt decision.

Turning now to the question of whether the trial court properly approved the arbitration award rather than vacating, correcting or modifying it, we conclude that it did. “The authority of an arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review.” Garrity v. McCaskey, 223 Conn. 1, 5, 612 A.2d 742 (1992). Here, the language of article 13 of the subcontract contains no qualifying language. “In the absence of any such qualifications, an agreement is unrestricted.” Id. Consequently, the award in this case arose out of an unrestricted submission. “When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission.” Id., 4. “Even in the case of an unrestricted submission, we have, however, recognized three grounds for vacating an award: (1) the award rules on the constitutionality of a statute . . . (2) the award violates clear public policy . . . or (3) the award contravenes one or more of the statutory proscriptions of § 52-418.” (Citations omitted.) Id., 6. In Garrity v. McCaskey, supra, 6-11, our Supreme Court recently clarified that a “manifest disregard of the law,” which Carabetta contends undermines the integrity of the present award, is part and parcel of the statutory ground for vacating an award where “the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.” General Statutes § 52-418 (a) (4).

Here, the trial court properly reviewed the integrity of the arbitration process and award by considering the relevant statutory criteria. As the trial court aptly noted: “Carabetta has not pointed to any improper conduct by the arbitrator. Instead, Carabetta’s allegations in its application focus on the weight of the evidence presented to the arbitrator, which is not a proper subject of review on an unrestricted submission.” Accordingly, the trial court correctly confirmed the arbitration award and correctly denied the application to vacate, correct or modify the award.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-418 (a) provides in pertinent part: “Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”


author: Per Curiam.

text:
    The Savings Institute v. Kenyon Manor Corporation et al.
    (11291)
    Daly, Lavery and Freedman, Js.
    Argued December 10, 1992 —
    decision released January 26, 1993

      Richard B. Laschever, for the appellants (defendants Herbert Farrah et al.).

      Raymond F. Parlato, for the appellee (plaintiff).
   Per Curiam.

The defendants Herbert Farrah and Aynesse A. Farrah appeal from the trial court’s judgment of default entered against them in a foreclosure action. This case arises out of the following facts. General Leasing Corporation conveyed property at 250 Kenyon Street in Hartford to Kenyon Manor Corporation by warranty deed dated February 29,1988, subject to the rights of the defendants “as tenants in possession with a claim of right.”

On March 24, 1988, Kenyon Manor Corporation (Kenyon) executed a note in the amount of $300,000 and a mortgage deed for the property on Kenyon Street in favor of the Willimantic Savings Institute now known as The Savings Institute. The note was also signed by Rhonda McDonald Farrah. When Kenyon defaulted in its payments, the plaintiff instituted this foreclosure action. The defendants, claiming they held a life estate in the property, filed an answer denying that their interest was junior in right to that of the plaintiff. The defendants also raised a special defense alleging that they were tenants in possession with a claim of right. The special defense was struck by the trial court. The defendants objected to the trial court’s decision to set the law days for them and moved for a determination of priorities. The trial court ordered strict foreclosure and set law days, including one for the defendants.

The defendants claim on appeal that the trial court (1) should not have stricken their special defense, (2) improperly defaulted them for their failure to plead and disclose a defense, and (3) improperly set the law days. The defendants do not contest that the mortgage is in default. Rather, they argue that their rights are not junior to those of the plaintiff and, therefore, that they possess a priority over the mortgage.

Our examination of the record reveals that the trial court never acted on the defendant’s motion for determination of priorities, which would have entailed deciding what the defendants’ interests were and whether they were junior or senior interests in relation to the mortgage. The trial court should have conducted an evidentiary hearing on this motion. Thus, we remand the case for further proceedings.

The judgment is reversed in part and the case is remanded to the trial court for an evidentiary hearing to determine the defendants’ rights in the property under foreclosure, and, if any such rights exist, to determine the priority of such rights. The judgment is affirmed as to all other parties.

       The named defendant and the defendant Rhonda McDonald Farrah are not involved in this appeal. For purposes of this decision Herbert and Aynesse A. Farrah shall be referred to as the defendants.


author: O’Connell, J. Heiman, J.,

text:
    State of Connecticut v. Wallace Joyce
    (9896)
    Daly, O’Connell and Heiman, Js.

      Argued September 14, 1992 —
    decision released January 26, 1993

      John R. Williams, for the appellant (defendant).

      James A. Kitten, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael A. Pepper, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, after a jury trial, of arson in the first degree in violation of General Statutes § 53a-lll (a) (4). The defendant claims that (1) the trial court improperly denied his motion to suppress the results of a test performed on his clothing, (2) the trial court improperly refused to admit evidence implicating a third party as the perpetrator, and (3) there was insufficient evidence to support his conviction. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. At approximately 4 p.m. on January 29, 1990, the defendant was severely burned in an explosion and fire at a house formerly owned by his father. A neighbor described a “whooshing sound” and an “orangey glow” in the house followed seconds later by the defendant in flames running out of the front door. The defendant then ran down an embankment and jumped into a nearby river. The neighbor observed that the defendant’s face was “all burned,” his pant leg was ripped open and his hands were so badly burned that they appeared as if “he almost had gloves on.”

The East Haven fire department arrived shortly thereafter and one of the firefighters, who was also a trained paramedic, observed the defendant standing waist deep in the river. The firefighter, Charles Licata, helped him out of the water and noticed that he had severe burns over a large portion of his body. At the suppression hearing, Licata described the defendant’s clothing as charred and “mostly burned off his body in all the areas where he had the third and second degree burns.” Licata also remarked that the defendant’s clothes were still smoldering and warm to the touch.

To facilitate treatment, Licata cut off all of the defendant’s clothing. What remained of the clothing was then left in a wet pile on the roadside.* ** Licata testified that the defendant did not resist treatment. After approximately ten or fifteen minutes of emergency treatment at the scene, the defendant was taken to the hospital by ambulance. A detective secured the defendant’s clothing and wallet from the roadside, placed them in the trunk of his car, and brought them to the East Haven police department. The detective testified that he took them “[a]s a safekeeping process so they wouldn’t be stolen or lost.” The police did not consider the defendant to be a suspect at that time. At the police station, the clothes were hung to dry.

Later the same day, due to some concern that the defendant might be close to death, a police detective questioned him at the hospital. The detective explained that the questioning was initiated because “we didn’t know who he was and to find out what transpired at the fire scene.” The defendant was coherent and responsive to the detective’s questioning. The detective also spoke to the defendant’s wife and advised her that she could come to the station house and retrieve the clothing. Although his wallet was returned the next day, neither the defendant nor his wife made any attempt to retrieve the clothing in the several months between the time of the fire and the trial.

The state claims, as a result of ongoing investigation, that by the day after the fire the police had probable cause to believe that it had been started by the defendant. At that time, the clothing was transported to the state forensic laboratory in Meriden for analysis. Gas chromatography revealed the presence of either gasoline or a petroleum distillate similar to gasoline on some of the clothing. Thereafter, the clothing was returned to the East Haven police department.

After an extended period of hospitalization, the defendant was charged with one count of arson in the first degree under General Statutes § 53a-lll (a) (3) and one count under § 53a-lll (a) (4). He was tried before a jury in November, 1990, and acquitted on the first charge but convicted on the second.

Additional facts will be set forth where they are relevant to each issue.

I

The defendant first claims that the test performed on his clothing constituted an illegal search and seizure in violation of the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution.

We start by recognizing that the first clause of the fourth amendment protects two different types of expectations: freedom from unreasonable searches and freedom from unreasonable seizures. “A ‘search’ occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A ‘seizure’ of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.” Horton v. California, 496 U.S. 128, 133, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990); United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984). Accordingly, the two concepts must be analyzed separately.

A

We first analyze the defendant’s claim that his clothes were illegally seized. He does not appear to contend that the manner in which the clothes initially came into police custody was unconstitutional. The clothing was taken from the scene to protect it from possible loss or theft. Federal and state law both recognize that the police have a caretaking function relating to property exposed to possible loss, damage or theft. Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2535, 37 L. Ed. 2d 706 (1973); State v. Tully, 166 Conn. 126, 136-38, 348 A.2d 603 (1974).

The defendant contends that the illegal seizure occurred at the moment the clothes were transferred to the police laboratory for analysis. The gravamen of his argument is that, although the police needed no warrant when the clothing was drying in the detective division or when it was transferred to another area for storage, they did need a warrant to transfer the clothing temporarily to the laboratory.

By analogy to the cases dealing with seizure of persons, the clothing could not be considered seized absent some indication that the police, by a show of authority, restricted the defendant’s right to exercise his dominion and control over it. See United States v. Jacobsen, supra; United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). There is no indication in the record that transferring the defendant’s clothing to the laboratory provided any additional interference with the defendant’s possessory interest. There is no evidence that the defendant was denied access to the clothing either before, during or after the testing. Indeed, neither he nor his family made any attempt to retrieve the clothing, although they were free to do so at any time.

The defendant’s theory would mean that, whenever property is lawfully in the possession of the police, a seizure would arise each time something happens to that property thereby requiring a new warrant. For example, if the police legally seized a pistol during a search incident to an arrest, the pistol could not be taken to the police shooting range and fired for a ballistic test without a warrant being issued. According to the defendant’s argument, the transporting and firing of the pistol would constitute an additional and distinct seizure. We are not persuaded that the unwieldy burden placed on the police and the courts by this theory is justified by any concomitant benefit to the owner of the property.

B

Notwithstanding the absence of an illegal seizure, we proceed with our analysis to determine whether the scientific examination of the clothes constituted a search. In order to take advantage of the constitutional protection against unreasonable searches, the defendant has the burden of showing that he had a reasonable expectation of privacy in the item searched and that his expectation was one that society would recognize as reasonable. Rawlings v. Kentucky, 448 U.S. 98, 104-105, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980); State v. Pittman, 209 Conn. 596, 601, 553 A.2d 155 (1989). We emphasize that although the burden is on the state to prove that a search falls within an exception to the warrant requirement; State v. Badgett, 200 Conn. 412, 424, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986); it is the defendant who must show that he had an actual subjective expectation of privacy. Rawlings v. Kentucky, supra, 104; Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring); State v. Brown, 198 Conn. 348, 356, 503 A.2d 566 (1986).

Whether the defendant has established a reasonable expectation of privacy is determined on a case by case basis; State v. Mooney, 218 Conn. 85, 94, 588 A.2d 145, cert. denied, U.S. , 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991); by a factual inquiry into all of the relevant circumstances. State v. Reddick, 207 Conn. 323, 331, 541 A.2d 1209 (1988). The trial court’s finding that the defendant had no reasonable expectation of privacy in the clothing may not be overturned on appeal “unless it is legally or logically inconsistent with the facts found or involves an erroneous rule of law.” State v. Pittman, supra.

Although often referred to as a subjective expectation of privacy, the defendant must demonstrate an “exhibition of an actual expectation of privacy.” (Emphasis in original.) United States v. Taborda, 635 F.2d 131, 137 (2d Cir. 1980); California v. Greenwood, 486 U.S. 35, 39, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988); Katz v. United States supra, 361; 1 W. LaFave, Search and Seizure (2d Ed. 1987) § 2.1 (b), pp. 308-309. Mere ownership of property while it is in the custody of the police does not demonstrate a reasonable expectation of privacy. “[I]t is possible for a person to retain a property interest in an item, but nonetheless to relinquish his or her reasonable expectation of privacy in the object.” (Internal quotation marks omitted). State v. Mooney, supra, 107, quoting United States v. Thomas, 864 F.2d 843, 845 (D.C. Cir. 1989). The constitution protects what one “seeks to preserve as private.” Katz v. United States, supra, 351.

We recognize, generally, that there is a reasonable expectation of privacy in clothing. The singular facts of this case demonstrate, however, that any reasonable expectation of privacy the defendant may have had in his clothing prior to the fire had diminished after the fire to a point beyond the shelter of the fourth amendment. First, the defendant failed to exhibit any expectation of privacy in his clothing after the police took it into custody for safekeeping. Such an exhibition is a sine qua non to successfully invoking the protection of the fourth amendment. Neither the defendant nor anyone on his behalf requested the return of the clothing nor in any other way contacted the police in relation to it. Second, the clothing was burned and torn to the extent that, in the view of the trial court, it was no longer usable as clothing. Third, the clothing was removed without resistance from the defendant as a lifesaving measure and then left in a pile on a public street where it was lawfully secured and held by the police. In that situation, an erosion of privacy is inevitable. See, e.g., Wagner v. Hedrick, 383 S.E.2d 286 (W. Va. 1989) (accident victim taken to hospital emergency room had no reasonable expectation of privacy in his removed clothing because the area was freely accessible to police officers and others); State v. Smith, 88 Wash. 2d 127, 559 P.2d 970, cert. denied, 434 U.S. 876, 98 S. Ct. 226, 54 L. Ed. 2d 155 (1977) (defendant in hospital had no reasonable expectation of privacy in his clothing because it was in a semipublic area and hospital had control of the clothes).

As a result, the trial court’s finding that the defendant had no reasonable expectation of privacy in his clothing was adequately supported by the evidence.

Assuming arguendo that there had been a seizure and that the defendant had demonstrated an expectation of privacy, we next consider whether the laboratory examination of the clothes constituted a search. The state argues that the limited nature of the testing does not make it a search within the meaning of the fourth amendment. In numerous cases, the courts have held that various minimally intrusive examinations were not unreasonable constitutional searches. United States v. Jacobsen, supra (no search in field test for cocaine); United States v. Place, 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983) (no search in uncovering drugs through a canine sniff); United States v. Williams, 902 F.2d 678, 680 (8th Cir. 1990) (no search in use of ultraviolet light to detect residue).

In United States v. Jacobsen, supra, the court considered whether a field test for cocaine infringed on a legitimate expectation of privacy. In recognizing the remoteness of the possibility that chemical testing would compromise a legitimate expectation of privacy, the court held that there was no fourth amendment violation. The court explained that a “chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy.” Id., 123. The reason is that such a narrowly focused test will uncover only the presence of contraband, not a “private” fact. Similarly, in the present case, the purpose of the testing was to uncover the presence of an accelerant, not a “private” fact.

Particularly relevant to this case is State v. Chesney, 166 Conn. 630, 353 A.2d 783, cert. denied, 419 U.S. 1004, 95 S. Ct. 324, 42 L. Ed. 2d 280 (1974), in which the police, acting without a warrant, applied paraffin to the defendant’s hands to determine whether they would show gunpowder residue. The defendant was not under arrest at that point but, like the defendant in the present case, was merely a suspect. The Chesney court held that “applying paraffin casts to the accused’s hands did not violate the fourth and fifth amendments anymore than fingerprinting.” Id., 640; see State v. Chin Lung, 106 Conn. 701, 723, 139 A. 91 (1927).

We conclude that the minimally intrusive examination of the remnants of the defendant’s clothing to determine whether it contained an accelerant was not a search within the meaning of the fourth amendment prohibition against unreasonable searches. Accordingly, the trial court correctly denied the defendant’s motion to suppress the results of the analysis of the defendant’s clothing.

II

The defendant next claims that his state and federal due process rights were violated when the trial court refused to admit evidence concerning the culpability of David Thomas in the arson. The defendant’s theory of exculpation has its genesis in the will of his father, Lawrence Joyce. The beneficiaries of the will included the defendant, his sisters, Barbara Larson, Lauren Bowers, Joan Hubbard, Judith Corso and Patricia Haroskewicz, and the defendant’s nephew, David Thomas. The will provided that the defendant and his sisters were to take equal shares of the residual estate. The will also provided that one sister, Barbara Larson, and the nephew, David Thomas, were to receive a life tenancy in the house with the remainder in the residual estate.

Sometime after the death of Lawrence Joyce, Barbara Larson announced her intention to move from California to Connecticut and occupy the house. Larson’s decision was apparently supported by most of the family. As a result, the defendant posits that Thomas had been effectively ousted from his life estate and could gain economic value from the will only through the destruction of the house.

To that end, the defendant offered evidence, out of the presence of the jury, that included the testimony of the defendant’s sisters, Lauren Bowers and Joan Hubbard, as well as the testimony of Thomas. Lauren Bowers testified that when Lawrence Joyce was a patient at Yale-New Haven Hospital, she, her sister Patricia Haroskewicz, and Thomas were in the emergency room. At that time, she testified that Thomas “said to me that if there were any arguments about anything at the house, that he would burn the f______house down.”

Thomas admitted that he made one inculpatory statement. He testified that three or four months before Lawrence Joyce’s death and approximately eight months before the house burned he had said to Judy Corso, “it would be pretty hard to fight over [the contents of the house] if I burnt it to the ground.” He denied making a similar statement at any subsequent time. Thomas further stated that, at the time of the fire, his mother, Patricia Haroskewicz, lived about a mile from Jimmie’s Savin Rock Restaurant in West Haven. The defense elicited this statement in an attempt to connect Thomas to a book of matches, labeled with the restaurant’s name, that was found on the floor of the house after the fire.

Joan Hubbard testified that the night Lawrence Joyce was dying, Thomas was in the hospital room with a group of his friends. When Hubbard asked him to leave, he said “I’ll TNT that God damn place.” She further testified that, when Thomas’ friends said to him, “You’re going to trash it and torch it,” Thomas responded, “I’ll burn the mother f_____down.”

After hearing the proffered testimony and counsel’s argument, the court ruled that neither the evidence attempting to link Thomas to the matchbook nor the three witnesses’ testimony was admissible to exculpate the defendant. The court ruled that the evidence was insufficient to connect Thomas directly to the arson. Moreover, the court stated that “it is collateral in nature, does not sufficiently assist the jury in its task, and, accordingly, the court deems it to be irrelevant.”

The admission of third party exculpatory evidence is governed by well established rules. “Both this state and other jurisdictions have recognized that a defendant may introduce evidence which indicates that a third party, and not the defendant, committed the crime with which the defendant is charged. . . . The defendant, however, must show some evidence which directly connects a third party to the crime with which the defendant is charged. ... It is not enough to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused.” (Internal quotation marks omitted.) State v. Boles, 223 Conn. 535, 548-49, 613 A.2d 770 (1992). “The admissibility of evidence of third party culpability is governed by the rules relating to relevancy.” Id., 549.

In determining the admissibility of evidence, “[t]he trial court has broad discretion to determine both the relevancy and remoteness of evidence.” Dunham v. Dunham, 204 Conn. 303, 324, 528 A.2d 1123 (1987). “Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” State v. Payne, 219 Conn. 93, 114, 591 A.2d 1246 (1991).

Furthermore, the court’s determination of relevancy-will ordinarily not implicate due process concerns. “Relevancy is an evidentiary question and [ejvery evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error. . . . The defendant’s rights to confront and cross-examine witnesses and to present a defense do not give him the right to have admitted any evidence he chooses. ... In the exercise of his rights, the defendant, as well as the state, must comply with the established rules of evidence and procedure. ...” (Citations omitted; internal quotation marks omitted.) State v. Boles, supra, 550.

The trial court had the opportunity to hear the witnesses and evaluate the probative value of their testimony. In determining relevancy, “[t]he court must determine whether the proffered evidence is corroborative or coincidental, whether it is probative or tends to obfuscate, and whether it clarifies or obscures. In arriving at its conclusion, the trial court is in the best position to view the evidence in the context of the entire case, and we will not intervene unless there is a clear abuse of the court’s discretion.” State v. Aspinall, 6 Conn. App. 546, 554, 506 A.2d 1063 (1986). Accordingly, we limit our review “to a determination of whether, under the circumstances of the case, in exercising its broad discretion, the trial court could legally act as it did, and not whether we, under the same circumstances, would make the same ruling.” Id.

Although the evidence might have presented a possible motive or ground for suspicion of Thomas, that by itself, is insufficient to establish relevancy. State v. Boles, supra, 549-50. The evidence must directly connect Thomas to the crime. The trial court properly exercised its discretion in concluding that the proffered evidence was either too remote or otherwise insufficient to connect Thomas directly to the crime. This is particularly true where, as here, the defendant made no attempt to introduce any evidence as to Thomas’ whereabouts at the time of the fire.

The trial court’s ruling that the proffered evidence did not directly connect Thomas to the crime was not an abuse of discretion nor did it result in substantial prejudice to the defendant. Further, because the evidentiary ruling was properly within the court’s discretion, we hold that the defendant’s state and federal due process rights were not violated by the exclusion of evidence that Thomas might have committed the crime.

Ill

The defendant also argues that the state failed to prove his guilt beyond a reasonable doubt. In particular, he claims that (1) the state failed to prove the identity of the defendant as the perpetrator, and (2) the state failed to prove, as required under General Statutes § 53a-lll (a) (4), that any firefighter or peace officer was subjected to a substantial risk of bodily injury. We disagree.

In reviewing a claim of insufficiency of the evidence, we employ a two part inquiry. “First, we review the evidence presented at trial, construing it in the light most favorable to sustaining the jury’s verdict. Second, we determine whether, on the facts so construed and the inferences reasonably drawn therefrom, the jury could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” State v. Jupin, 26 Conn. App. 331, 337, 602 A.2d 12, cert. denied, 221 Conn. 914, 603 A.2d 404 (1992); State v. Gray, 221 Conn. 713, 720, 607 A.2d 391, cert. denied, U.S. , 113 S. Ct. 207, 121 L. Ed. 2d 148 (1992); State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991). “In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . Findings of fact that are consistent with guilt are afforded great deference unless they are improbable and unconvincing.” (Citation omitted; internal quotation marks omitted.) State v. Gray, supra.

A

There is no dispute that the defendant was at the scene of the fire both before and after its ignition. The defendant claimed that he was at the house because his truck had broken down and he wanted to use the phone. He testified that, upon walking the approximate one quarter of a mile to the house, he noticed that the pantry window unexpectedly was open. We presume that this caused him to suspect that someone had broken into the house. He then ran to the front of the house, deactivated the burglar alarm, opened the door, hit the light switch and was immediately struck by a blast of fire. In support of that claim, the defendant presented the testimony of a retired fire marshal-fire scene analyst, who stated his belief that a faulty light switch ignited the blaze.

The state presented extensive testimony of the investigating fire marshal, Frederic Brow. He testified that, in his opinion, the fire was deliberately set and that the point of ignition was no more than one foot off the floor. He also opined that, although there were two timing devices discovered during the investigation, the fire had erupted prematurely. He further testified that the severe burning or “degloving” of the defendant’s hands was consistent with the injury he would have received if his hands were “in or at the point of ignition.”

The state also presented the testimony of an eyewitness, who contradicted the defendant’s claim that the explosion occurred as he opened the door. The eyewitness, a neighbor who lived directly across the street, testified that he had noticed that the interior front door of the Joyce house was partially open. He continued to observe the house for two or three minutes, at which time he heard a “whooshing sound” and saw an “orangey glow” behind the front window of the house. Seconds later, the neighbor saw the defendant rush out of the front door in flames.

Moreover, there was no evidence that other persons were anywhere near the house that day. In addition, the investigating police detective and Brow testified that there were no signs of a forced entry. Nor was there any evidence that the house’s burglar alarm had sounded. As a result, “[t]he jury might have determined beyond a reasonable doubt that no one other than the defendant had the opportunity to start the fire.” State v. Famiglietti, supra, 614.

Other testimony was also consistent with a finding of guilt beyond a reasonable doubt. Evidence was adduced that contradicted the defendant’s claim that he wanted to use the phone at the house because his truck had experienced mechanical difficulties. First, the state submitted evidence that there was a pay phone located between the parking lot and the house, approximately four hundred feet from where the truck was parked. Second, several days after the fire, the truck was towed to a garage for a mechanical inspection. The service technician who conducted the inspection testified that he could find no mechanical problems and that the truck ran well.

The defendant’s explanation of how his clothing had become imbrued with a gasoline type substance was also challenged. On direct examination, the defendant stated that, on the day of the fire, he had used paint thinner to clean his hands after painting a house in Clinton. On cross-examination, he testified that, although he had been doing various odd jobs at the house in Clinton, he could recall painting only sporadically during the two weeks before the fire for a total of approximately three hours. He also stated that he was using a water based paint, which requires only water for cleanup. On redirect, however, he asserted that he cleaned other brushes with paint thinner on that day to prepare them for use the following day.

Accordingly, the jury could have reasonably concluded that the cumulative effect of the evidence established that the defendant was the perpetrator.

B

There was also sufficient evidence for the jury to have concluded that there was a risk of substantial injury to the firefighters. The first firefighter on the scene testified that when he entered the house, flames were on his right and his left and that multiple fires had started in various locations in the house. He also testified that he had found firearms in the house, thus prompting him to call the fire marshal. He further stated that after he had removed the breathing mask of his air tank, he detected a chemical odor, but could not identify it due to a sinus problem. Another firefighter testified that he observed a puddle and a gasoline can on the floor of the cellar.

When fire marshal Brow arrived and entered the house, he smelled an odor similar to that of gasoline. He continued his investigation and, upon proceeding to the basement, encountered a “heavy concentration” of gasoline odor and observed that water seeping down from the first floor appeared to be mixed with “some petroleum product.” Fearing an explosion, he ordered the firefighters to vacate the premises until the vapors could be purged. Brow also testified that he felt the fire had resulted from instantaneous ignition that consumed the entire first floor of the house in “a large flash fire.” Brow’s investigation revealed that the entire living room had been covered with gasoline.

The statute does not require that firefighters have actually been seriously injured. “The statute requires proof of a risk of substantial injury, not serious injury in fact.” State v. Famiglietti, supra, 615. In the present case, there was ample testimony as to the severity of the fire and the risk of explosion. Indeed, the defendant himself claimed that his substantial injuries were caused by an explosion when he opened the door of the house. Accordingly, there was sufficient evidence for the jury to find, beyond a reasonable doubt, that the firefighters were exposed to a risk of substantial injury.

The judgment is affirmed.

In this opinion Daly, J., concurred.

Heiman, J.,

dissenting. I respectfully dissent. Because I believe that the police should have obtained a warrant prior to testing the defendant’s clothing for traces of accelerant, I would reverse and remand this case with direction to grant the defendant’s motion to suppress and order a new trial.

I agree with the court’s decision with respect to the second and third issues raised on appeal by the defendant. I disagree, however, with its disposition of the first issue raised by the defendant that challenged the trial court’s denial of the defendant’s motion to suppress the results of a test performed on his clothing. The narrow question presented by this first issue is whether the warrantless seizure and search of the defendant’s clothing violated his rights under the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution.

Although the court correctly determined that the police could lawfully protect the defendant’s clothing under their caretaking function, it failed to recognize that the transportation of the clothing to the state forensic laboratory constituted an unlawful seizure. Pursuant to their caretaking function, the police could lawfully possess the defendant’s clothing and safeguard it from possible theft, loss or damage. Cady v. Dom browski, 413 U.S. 433, 441, 93 S. Ct. 2535, 37 L. Ed. 2d 706 (1973); State v. Tully, 166 Conn. 126, 136-38, 348 A.2d 603 (1974). This caretaking function, however, cannot be used as a ruse or as a substitute for obtaining a warrant in order to seize an item for investigatory purposes. See Cady v. Dombrowski, supra; State v. Tully, supra, 136.

The cases cited by the state supporting the warrant-less seizure are distinguishable from the facts of this case. The cases cited by the state fall within two categories: those that involve defendants who were already lawfully in custody or under arrest and whose personal effects were seized and subjected to laboratory analysis; see United States v. Edwards, 415 U.S. 800, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974); and those that involve exigent circumstances. See, e.g., Cupp v. Murphey, 412 U.S. 291, 93 S. Ct. 2000, 36 L. Ed. 2d 900 (1973) (court upheld warrantless seizure of fingernail scrapings of a person who the police had probable cause to believe had strangled another, and who was not lawfully arrested and was free to leave the police station); State v. Badger, 141 Vt. 430, 446, 450 A.2d 336 (1982) (court upheld warrantless seizure of a boy’s bloody sneakers by the police, who had both probable cause to believe that the sneakers were incriminating evidence and an exigent circumstance in that the boy was not under arrest and could easily have destroyed the sneakers or removed the blood from them). Once the state turned the property over to the forensic laboratory, the police shed their lawful caretaking function. A seizure occurred because there was some meaningful interference with the defendant’s possessory interest in his property. See United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984). The seizure became one for investigative purposes and interfered with the defendant’s possessory interest in the clothing. The seizure was neither supported by warrant nor was it within any recognized exception to the warrant requirement. The warrantless seizure for investigative purposes thus violated the fourth amendment to the United States constitution.

The court also fails to distinguish adequately a search from a seizure. “Unlike a seizure, which involves state interference with a person’s possessory interest, a search constitutes state interference with a person’s privacy interest. . . . Although an improper seizure can be undone by returning the seized property, privacy, once invaded, cannot be restored. Thus, the invasion of privacy occasioned by an illegal search cannot be remedied satisfactorily, even if a judge subsequently determines that the search was not supported by probable cause.” (Citation omitted.) State v. Miller, 29 Conn. App. 207, 220, 614 A.2d 1229, cert. granted, 224 Conn. 914, 617 A.2d 170 (1992). I disagree with the majority’s statement that no search occurred and that, even if a search had occurred, subsequent to the testing the defendant’s clothing “still may have been valuable to him for purposes of his own testing to counter the results of the state’s examination.” Once violated, his privacy interest in his clothing could not be restored.

It is “a cardinal principle that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.’ ” (Emphasis in original.) Mincey v. Arizona, 437 U.S. 385, 385, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978), quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); State v. Lewis, 220 Conn. 602, 609, 600 A.2d 1330 (1991). The warrant requirement “ ‘reflects the sound policy judgment that, absent exceptional circumstances, the decision to invade the privacy of an individual's personal effects should be made by a neutral magistrate rather than an agent of the Executive.’ ” State v. Miller, supra, 219, quoting California v. Acevedo, 500 U.S. , 111 S. Ct. 1982, 1994-95, 114 L. Ed. 2d 619 (1991) (Stevens, J., dissenting). The warrant requirement is also “ ‘intended to eliminate altogether searches not based on probable cause. The premise here is that any intrusion in the way of a search or seizure is an evil, so that no intrusion at all is justified without a careful prior determination of necessity.’ (Emphasis in original.)” State v. Miller, supra, quoting Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). The police failed to obtain a warrant to search the defendant’s clothing. The state also failed to identify any exigent circumstance that would excuse or justify a warrantless search. As such, the search of the defendant’s clothing violated the defendant’s fourth amendment right.

Even if the police had probable cause to believe that the defendant caused the fire, they still required a warrant to conduct the search. See Chambers v. Maroney, 399 U.S. 42, 61, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970) (Harlan, J., dissenting). In that dissent, Justice Harlan stated that “[t]he Court has long read the Fourth Amendment’s proscription of unreasonable searches as imposing a general principle that a search without a warrant is not justified by the mere knowledge by the searching officers of facts showing probable cause. The general requirement that a search warrant be obtained is basic to the Amendment’s protection of privacy, and the burden is on those seeking [an] exemption . . . to show the need for it.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id. Probable cause is not a substitute or excuse for not obtaining a warrant when exigent circumstances or other exceptions to the warrant requirement are not present. Id. The police, thus, could not search the defendant’s clothing without first obtaining a warrant.

Even if the search did not violate federal constitutional requirements, our inquiry does not end. See State v. Ephraim, 28 Conn. App. 306, 309, 610 A.2d 1320, cert. denied, 223 Conn. 925, 614 A.2d 828 (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). Although the defendant asserts that his rights under both the state and federal constitutions were violated, he does not provide a separate analysis of his state constitutional claim. Both this court and our Supreme Court have declined to review a defendant’s state constitutional claim, deeming it to have been abandoned, when the defendant has not briefed and analyzed that claim separately. See, e.g., State v. Hernandez, 204 Conn. 377, 394 n.9, 528 A.2d 794 (1987); 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. Redente, 19 Conn. App. 521, 531 n.5, 563 A.2d 1365 (1989). That declination, however, does not mean that we are foreclosed from reviewing a claim if we choose to do so. State v. Hoeplinger, supra; State v. Geisler, supra.

The defendant claims that the search violated article first, § 7, of the Connecticut constitution. Our courts have noted that in some instances, “the protections afforded to the citizens of this state by our own constitution go beyond those provided by the federal constitution, as that document has been interpreted by the United States Supreme Court. . . . [I]n the area of fundamental civil liberties — which includes all protections of the declaration of rights contained in article first of the Connecticut constitution — we sit . . . subject only to the qualification that our interpretations [neither] restrict the guarantees accorded the national citizenry under the federal charter [nor conflict with the pronouncements of our state Supreme Court]. In such constitutional adjudication, our first referent is Connecticut law and the full panoply of rights Connecticut residents have come to expect as their due. Accordingly, decisions of the United States Supreme Court are persuasive authority to be afforded respectful consideration, but they are to be followed by Connecticut courts only when they provide no less individual protection than is guaranteed by Connecticut law.” (Citations omitted; internal quotation marks omitted.) State v. Miller, supra, 221-22. “Although our state constitutional decisional law is in its infancy, some distinct, principled jurisprudential theories are emerging for determining when it is appropriate to invoke our state constitution and to afford greater protections to Connecticut residents than those supplied by the United States Supreme Court’s interpretations of consonant provisions of the federal constitution. . . . [0]ur courts have in some instances interpreted our state constitutional provisions more broadly than their federal counterparts even where, as is the case with the search and seizure provisions of the two documents, there is no material difference between either the texts or the historical backgrounds of the two provisions.” Id., 222.

Our state constitution has a “manifest preference” for warrants. Id., 225. Failure to obtain a warrant, even if not violative of the federal constitution, receives a more exacting scrutiny under our state constitution. Id., 224-25. In this case, however, the police were required to obtain a warrant under both federal and state constitutional provisions.

Although the majority correctly determined that no seizure occurred when the police took custody of the defendant’s clothing for safekeeping, a search and seizure did occur when the police opted to relinquish their caretaking function and investigate the defendant’s clothing for traces of accelerant. That warrantless search and seizure violated the defendant’s fourth amendment rights protected by the United States constitution and his rights under article first, § 7, of the Connecticut constitution. Accordingly, since I would reverse and remand with direction to grant the defendant’s motion to suppress and order a new trial, I dissent.

       General Statutes § 53a-lll (a) provides in relevant part: “A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and ... (4) at the scene of such fire or explosion a peace officer or firefighter is subjected to a substantial risk of bodily injury.”

       Approximately nine months prior to the fire, the defendant’s father had died, leaving a life tenancy in the house to one of the defendant’s sisters and the defendant’s nephew.

       Other testimony explained that the appearance of the defendant’s hands, caused by the skin hanging off them, is known as “degloving.”

       The firefighter’s report indicated that the defendant had second and third degree bums over 30 to 40 percent of his body. Later testimony indicated that 42 percent of his body was burned.

       At the hearing on the motion to suppress, Licata explained the necessity for removing the clothing: “He had open blisters from the third degree bums on most of his body and the burnt clothing was beginning to stick to them from the char. And for reasons of infection, we don’t want any of the dirty water from the lake, the river that he was standing in, to start infecting everything because everything was wide open for infection at that time.”

       After observing the clothing at the hearing on the motion to suppress, the court stated: “The court’s view is that the clothing was tom, unusable and that the court believes is a factor to consider.”

       The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

       We note that the defendant has not provided any separate or distinct argument under the state constitution. As a result, this court need not independently undertake to engage in such an analysis. State v. Birch, 219 Conn. 743, 746 n.4, 594 A.2d 972 (1991); State v. Johnson, 28 Conn. App. 708, 713, 613 A.2d 1344, cert. granted, 224 Conn. 911, 617 A.2d 168 (1992).

       At oral argument, defendant’s counsel claimed that after the testing it was too late for possession of the clothing to be meaningful to him because the damaging evidence had already been secured by the testing. We do not agree. The clothes still may have been valuable to him for purposes of his own testing to counter the results of the state’s examination.

       The dissent relies, in part, on Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2535, 37 L. Ed. 2d 706 (1973), and State v. Tully, 166 Conn. 126, 348 A.2d 603 (1974), for the proposition that the transfer of the defendant’s clothing to the laboratory constituted an unlawful seizure. Neither case, however, holds that property, already lawfully in police custody pursuant to the police caretaking function, cannot be moved without a warrant.

       The quotation from State v. Mooney, 218 Conn. 85, 107, 588 A.2d 145 (1991), refers to abandonment of property. The state does not claim abandonment in the present case but the quotation is relevant to the privacy issue.

       The dissent relegates the reasonable expectation requirement to a footnote, notwithstanding the fact that it is at the core of the case. The dissent views the court’s opinion on this point to be “Orwellian” and “disingenuous” because the defendant’s smoldering clothing was removed by a firefighter and not by himself. The dissent further reasons that the defendant could not have exhibited an expectation of privacy while “he clung to life at the hospital.” Although the defendant’s failure to request his clothing is only one factor in our reasonable expectation analysis, a note of clarification is necessary. First, we see no reason why an expectation of privacy would exist if the defendant had removed his clothing, but would not exist because a firefighter came to his rescue and peeled the smoldering remains of the clothing off his body. Second, the defendant did not have to exhibit an expectation of privacy only immediately after the fire in order to have it suppressed several months later at the time of trial. There was ample opportunity for such an exhibition before the defendant moved to suppress the clothing.

       See footnote 6, supra.

       We do not reach the second prong of the privacy test — that the expectation of privacy was one that society would recognize as reasonable. The defendant’s brief does not address the expectation of privacy issue.

       The dissent asserts that the state “conceded during oral argument that a warrantless search had in fact occurred.” We do not discern, in the state’s remark, an abandonment of the state’s briefed position that there was no search in violation of the fourth amendment. Indeed, shortly after counsel acknowledged that there was a search, he proceeded to argue, citing United States v. Jacobsen, 466 U.S. 109, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984), that the search was not illegal within the meaning of the fourth amendment. The fourth amendment does not protect against all searches, only against those that are unreasonable. Florida v. Jimeno, U.S. ,111 S. Ct. 1801, 1803, 114 L. Ed. 2d 297 (1991). Furthermore, we are not bound by comments of counsel. State v. Falcon, 26 Conn. App. 259, 265, 600 A.2d 1364, cert. denied, 221 Conn. 911, 602 A.2d 10 (1991); State v. Putnoki, 200 Conn. 208, 219 n.6, 510 A.2d 1329 (1986).

       The defendant offers no explanation as to why a less drastic remedy, such as partition, would not have been available to Thomas. Query as to the validity of a will provision purporting to prohibit partition.

       There was evidence at trial of ongoing disputes among the family members concerning the disposition of the contents of the estate.

       The parties have addressed the issue of whether the statements of the two sisters were admissible within an exception to the hearsay rule. We decline to decide that issue because our review of the record indicates that the trial court excluded the evidence solely on grounds of relevancy.

       The alarm system was installed by the defendant’s brother-in-law, who testified that the pantry window was the only downstairs window not connected to the system.

       On cross-examination, the service technician agreed that the truck might behave differently under different weather conditions. At best this created a question of fact for determination by the jury.

       The fourth amendment to the United States constitution, which was made applicable to the states in Wolf v. Colorado, 338 U.S. 25, 27-28, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949), provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

       Article first, § 7, of the Connecticut constitution provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

       The court correctly determined that in order to assert that his fourth amendment rights have been violated, the defendant must demonstrate that he has a reasonable expectation of privacy in his clothing and that this expectation was one that society would recognize as reasonable. Rawlings v. Kentucky, 448 U.S. 98, 104-105, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980); State v. Pittman, 209 Conn. 596, 601, 553 A.2d 155 (1989). To satisfy this requirement, the defendant would have to show that he had an actual or subjective expectation of privacy in the clothing. Rawlings v. Kentucky, supra, 104; Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring); State v. Brown, 198 Conn. 348, 356, 503 A.2d 566 (1986). There is a somewhat disingenuous and Orwellian quality to a claim that the defendant relinquished his expectation of privacy when it was the police and medical personnel who removed the defendant’s clothing. It is also circular reasoning to argue that the defendant never exhibited an expectation of privacy in that clothing. The defendant did not have to reassert his expectation of privacy in the clothing nor was it feasible for him to do so while he clung to life at the hospital.

       The state conceded during oral argument that a warrantless search had in fact occurred. While not technically bound by concessions of counsel, we should not ignore them when a different result might be attained.

       The state failed to demonstrate that exigent circumstances were present to justify the warrantless search conducted at the state forensic laboratory. There was no finding by the trial court that any accelerant was visible on the clothing or that the clothing had an odor suggestive of the presence of an accelerant. The state also failed to introduce testimony that the evaporative nature of the accelerant or its evanescence required an immediate search.

       In this case, the state has not demonstrated that exigent circumstances or other exceptions to the warrant requirement existed. Although they mention in their brief that both state and defense forensic experts testified to the evaporative quality of gasoline, the trial court never found that this evanescence existed and would permit a warrantless search.


author: Foti, J.

text:
    Michael Raucci v. Warden, State Prison
    (11320)
    Daly, Foti and Heiman, Js.
    Argued October 26, 1992 —
    decision released February 2, 1993

      L. D. McCollum, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (respondent).

      Temmy Ann Pieszak, assistant public defender, for the appellee (petitioner).
   Foti, J.

The genesis of this appeal is a petition for habeas corpus challenging the respondent’s calculation of various credits applicable to the petitioner’s sentence. The respondent has appealed from the judgment of the habeas court granting the petition in part and ordering the respondent to recalculate the petitioner’s sentence as beginning on the date a corrected mittimus was issued, with all prior time in confinement designated as presentence confinement and credits calculated accordingly. We affirm the judgment of the habeas court.

The following stipulated facts are relevant to this appeal. The petitioner, Michael Raucci, is being held by the respondent pursuant to a mittimus issued on May 29, 1990, by the Superior Court, judicial district of New Haven, Docket No. CR7-72733. The mittimus provided, in count four, a term of imprisonment of not less than seven and one-half nor more than fifteen years for the crime of larceny in the first degree in violation of General Statutes §§ 53a-8, 53a-119 and 53a-122 (a) (2); in count one, a term of imprisonment of not less than seven and one-half nor more than fifteen years for the crime of conspiracy to commit larceny in the first degree in violation of General Statutes §§ 53a-48 and 53a-122 (a) (2), to be served consecutively to the sentence imposed in count four; in count three, a term of imprisonment of not less than two and one-half nor more than five years for the crime of burglary in the third degree in violation of General Statutes § 53a-103, to be served concurrently with the sentences imposed in counts one and four. The petitioner’s total effective sentence is not less than fifteen nor more than thirty years, which he is currently serving.*

The petitioner’s sentence was imposed for offenses committed on October 2,1980. He was originally sentenced on November 23,1983, as follows: In count one, a term of imprisonment of not less than ten nor more than twenty years for the crime of conspiracy to commit larceny in the first degree; in count two, a term of imprisonment of not less than two and one-half nor more than five years for the crime of conspiracy to commit burglary in the third degree, to be served consecutively to count one; in count three, a term of imprisonment of not less than two and one-half nor more than five years for the crime of burglary in the third degree, to be served consecutively to counts one, two and four; in count four, a term of imprisonment of not less than ten nor more than twenty years for the crime of larceny in the first degree, to be served concurrently with count one. The total effective sentence imposed was not less than fifteen nor more than thirty years.

The petitioner was not delivered to the custody of the respondent after his November 23, 1983 sentencing. Instead, the petitioner posted an appeal bond and was released from custody pending appeal. On June 26, 1984, the appeal bond was revoked, a mittimus issued and, on May 17,1985, the petitioner was first received into the respondent’s custody to begin serving the original sentence.

On June 28,1989, pursuant to the petitioner’s motion to correct an illegal sentence, and in accordance with State v. Stellato, 10 Conn. App. 447, 456-57, 523 A.2d 1345 (1987), the Superior Court vacated the judgment in Docket No. CR7-72733 as to count two (conspiracy to commit burglary in the third degree) and resentenced the petitioner on the remaining three counts, as described earlier, for a total effective sentence of not less than fifteen nor more than thirty years. A corrected mittimus reflecting this resentencing was not issued on June 28, 1989.

The petitioner later appealed from the judgment resentencing him on counts one, three and four. On May 22, 1990, we affirmed the sentencing scheme imposed by the Superior Court, holding that the court had the authority to restructure the sentence plan imposed pursuant to the multicount conviction to conform to its original sentencing intent. See State v. Raucci, 21 Conn. App. 557, 558, 575 A.2d 234, cert. denied, 215 Conn. 817, 576 A.2d 546 (1990).

On May 29, 1990, the Superior Court issued a corrected mittimus, reflecting a fifteen to thirty year sentence beginning on May 17,1985, the day the petitioner was originally received into custody. The respondent thereafter credited the petitioner’s sentence as follows: (1) 2400 days of statutory good conduct credit, in accordance with General Statutes § 18-7a (a), on the minimum sentence of fifteen years; (2) 5100 days of statutory good conduct credit, in accordance with General Statutes § 18-7a (a), on the maximum sentence of thirty years; (3) ninety-two days of presentence confinement credit, in accordance with General Statutes § 18-97, representing the petitioner’s time in confinement prior to imposition of the first sentence on November 23,1983; and (4) thirty days of presentence confinement good conduct credit, in accordance with General Statutes § 18-98c, also representing the petitioner’s time in confinement prior to imposition of the first sentence on November 23, 1983.

The respondent has not treated any time between May 17, 1985, when the petitioner was first confined pursuant to the judgment of conviction on counts one, three and four, and May 29,1990, when the corrected mittimus reflecting the revised sentence was issued, as presentence confinement and has not credited the petitioner with respect to such time with either presentence confinement credit, pursuant to General Statutes § 18-97 or presentence confinement good conduct credit, pursuant to General Statutes § 18-98c. Instead, the respondent has credited the petitioner with “time served.”

The sole issue in this appeal is whether the petitioner, as a sentenced prisoner, is entitled to “presentence credit” from May 17,1985, the date he began serving his “illegal” sentence, to May 29, 1990, the date on which the corrected mittimus was issued, or is entitled only to “time served” credits as the respondent contends. We conclude that the habeas court properly determined that the petitioner was entitled to presentence credit for that period.

In Sutton v. Lopes, 202 Conn. 343, 348-49, 521 A.2d 147 (1987), our Supreme Court stated: “General Statutes § 53a-38 (c) provides: ‘When a sentence of imprisonment that has been imposed on a person is vacated and a new sentence is imposed on such a person for the same offense or for an offense based on the same act, the new sentence shall be calculated as if it had commenced at the time the vacated sentence commenced, and all time served under or credited against the vacated sentence shall be credited against the new sentence.’ It is well established that ‘[c]redit for time previously served is constitutionally mandated by the double jeopardy clause of the fifth amendment of the United States constitution which is enforceable in state courts through the fourteenth amendment. . . .’ Moscone v. Manson, [185 Conn. 124, 126-27, 440 A.2d 848 (1981)]. General Statutes § 53a-38 (c) ... is a general statutory provision which requires that a prisoner be given full credit for time served on a vacated sentence. . . .

“Although we did not directly address in Moscone whether time spent in custody pursuant to a sentence which is later vacated is subject to ‘time served’ credit or ‘presentence credit,’ we did indicate that the plain language of § 53a-38 (c) requires only that some form of credit for time served be awarded, and that it is irrelevant to any other statutory credit. Moscone v. Manson, supra, 131-32. . . . General Statutes § 53a-38 (c) does not bar crediting the time period in question as presentence confinement.” (Citations omitted.)

In Casey v. Commissioner of Correction, 215 Conn. 695, 577 A.2d 1051 (1990), our Supreme Court clarified the Sutton holding. In Casey, the trial court had specifically determined that Sutton mandated that “time served on a vacated sentence must be treated as presentence credit on any subsequent sentence for the same offense or offense based on the same act.” Casey v. Commissioner of Correction, Supreme Court Records and Briefs, May Term 1990, Record p. 26. The trial court had indicated that “[w]hen an original sentence is vacated and declared void, the slate has been wiped clean. The petitioner is then in the same situation he would have been in if there never had been a sentence imposed for the purpose of calculating presentence credit. Time that is spent in jail prior to the date a sentence is imposed is treated as jail time under [General Statutes §§] 18-97, 18-98, 18-98d. Similarly, time that is spent in jail under a conviction that has been wholly nullified and the slate wiped clean is time that is spent awaiting a valid sentencing and therefore must be treated as jail time and calculated [in the same fashion].”Id., pp. 26-27. The Supreme Court agreed, and affirmed the trial court’s order that the commissioner treat the defendant’s sentence as having commenced on the date it was imposed and credit the time served prior thereto as presentence time. Casey v. Commissioner of Correction, supra, 697.

Here, the habeas court found that under the rule of Sutton v. Lopes, supra, as clarified in Casey v. Commissioner of Correction, supra, the application of presentence credit is mandatory for time served under a vacated illegal sentence. The court, therefore, ordered the respondent to credit the petitioner with presentence credits for the time the petitioner served between May 17, 1985, and May 29, 1990, under the vacated sentence. We agree with the habeas court that the rule in Sutton and Casey is mandatory rather than permissive.

The respondent argues that we should distinguish Sutton and Casey because in those cases, as in Moscone and even North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), the defendants successfully challenged their convictions, whereas the petitioner here successfully challenged only his illegal sentence, which did not subject him to double jeopardy. We disagree that the Sutton-Casey rule applies only when the finding of criminal liability is vacated and not when the sentence is vacated.

The parties agree that double jeopardy is not, and never was, an issue in the present case. Our careful reading of the habeas court’s memorandum of decision shows that it was not based on double jeopardy concerns. Rather, the court relied on the language of the applicable statutes, all of which refer to presentence credit. Further, both Sutton and Casey specifically refer to the application of presentence credit when time has been served on a vacated sentence.

In this case, when the petitioner’s original sentence on the second count was vacated, his original sentences on the remaining three counts were also vacated to allow a restructured effective sentence of not less than fifteen nor more than thirty years.* * These new sentences were preconditioned upon the prior sentences being vacated. The habeas court specifically found that the original sentences were vacated, and the respondent has not challenged this finding. The petitioner therefore cannot be said to be serving the original sentences imposed in 1983.

The petitioner’s sentence must be recalculated “as commencing on the date the valid sentence was imposed.” Wright v. Commissioner of Correction, 216 Conn. 220, 224, 578 A.2d 1071 (1990). Although the petitioner was resentenced on June 28,1989, the corrected mittimus was not issued until May 29,1990. The trial court therefore correctly determined that the new sentence must be recalculated as beginning on May 29, 1990. See Sutton v. Lopes, supra, 346 n.6. The petitioner is entitled to presentence credit for time served between May 17, 1985, and May 29, 1990, under the vacated sentence.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner is also subject to additional sentences as follows: (1) pursuant to a mittimus issued March 21,1986, by the Superior Court, judicial district of New Haven, Docket No. CR6-203590, a term of imprisonment of not less than ten nor more than twenty years for the crime of conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54 (a), to be served consecutively to the sentence imposed in Docket No. CR7-72733; (2) pursuant to a mittimus issued March 21, 1986, by the Superior Court, judicial district of New Haven, Docket No. CR6-243748, a term of imprisonment of five years for the crime of failure to appear in the first degree in violation of General Statutes § 53a-172, to be served concurrently with the sentence imposed in Docket No. CR6-203590 and consecutively to the sentence imposed in Docket No. CR7-72733. The sentences have not yet been executed and have no bearing on the issues raised by this petition. No credits of any kind have yet been applied to the sentences in Docket No. CR6-203590 and Docket No. CR6-243748.

       General Statutes § 18-97 provides: “confinement under a mittimus: PRESENTENCE CONFINEMENT CREDIT PRIOR TO JULY 1, 1981. Any person receiving a fine or a sentence to a correctional institution or a community correctional center for an offense committed prior to July 1, 1981, shall receive credit towards any portion of such fine as is not remitted or any portion of such sentence as to which execution is not suspended for any days spent in custody under a mittimus as a result of any court proceeding for the offense or acts for which such fine or sentence is imposed, provided he shall conform to the rules of the institution. Upon notification from the commissioner of correction, the clerk of the court shall enter such credit upon the order in the case of a fine, and upon the mittimus in the case of a sentence and it shall be the duty of the agency or person that held such person under such mittimus to inform the clerk of the court of the proper amount of such credit. In the case of a fine each credit day shall be computed at the rate of ten dollars. In no event shall credit be allowed in excess of the fine or sentence actually imposed.”

       General Statutes § 18-98c provides: “good conduct credit for presentence confinement prior to JULY 1, 1981. In addition to the time credits provided for in sections 18-97 and 18-98, any person who has been denied bail or who has been unable to obtain bail and who subsequently is fined or sentenced to a correctional institution or a community correctional center shall receive a good conduct credit towards any portion of such fine as is not remitted or any portion of such sentence as to which execution is not suspended, such credit to be at the rate of ten days for each month of presentence confinement and such credits to be awarded only for prompt obedience to the rules of the correctional institution or community correctional center wherein the person is confined. The provisions of this section allowing credit at the rate of ten days for each month of presentence confinement shall apply to those periods of time spent in presentence confinement pursuant to sections 18-97 and 18-98, which occur after October 1, 1976, for an offense committed prior to July 1, 1981.”

       Constitutional issues need not be considered unless absolutely necessary to the decision of a case or unless sufficient public interest requires such. State v. DellaCamera, 166 Conn. 557, 560-61, 353 A.2d 750 (1974).

       Had the remaining three counts remained intact, the total effective sentence would have been not less than twelve and one-half nor more than twenty-five years.

       The respondent is thus incorrect in stating that the “Commissioner of Correction is simply continuing to administer a sentence which was originally executed on May 17, 1985 and corrected on May 29, 1990.”