author: LAVERY, J.

text:
    NORSE SYSTEMS, INC. v. TINGLEY SYSTEMS, INC.
    (AC 16966)
    O’Connell, C. J., and Lavery and Schaller, Js.
    Argued March 23
    officially released July 28, 1998

      Todd R. Bainer, for the appellant (plaintiff)

      Michael Feldman, with whom, on the brief, was Charles E. Hickey, for the appellee (defendant).
   Opinion

LAVERY, J.

The plaintiff, Norse Systems, Inc. (Norse), appeals from the trial court’s granting of summary judgment on all counts of its complaint in favor of the defendant, Tingley Systems, Inc. (Tingley). On appeal, Norse claims that the trial court improperly (1) failed to recuse itself from hearing Tingley’s motion for summary judgment and (2) granted Tingley’s motion for summary judgment because (a) there are genuine issues of material fact and (b) the law was misapplied with respect to (i) Tingley’s special defense relating to advice of counsel and (ii) Norse’s abuse of process and Connecticut Unfair Trade Practice Act (CUTPA) claims. We affirm the judgment of the trial court.

The following facts are relevant to the case before this court. Norse, a Connecticut corporation, and Tingley, a Florida corporation, do business in the computer industry. Norse develops software programs and systems for health maintenance organizations. Sometime prior to 1988, Tingley had licensed the use of its health maintenance organization software program (software program) under certain conditions to Aetna Health Care Systems, Inc. (Aetna). In or about 1987, Tingley knew that Aetna intended to upgrade its computer hardware. Aetna hired Norse as a consultant to assist in its upgrading efforts. Sequoia Systems, Inc. (Sequoia), was a computer hardware vendor offering to sell Aetna a new computer. In early 1988, Tingley learned certain information that caused its principals to believe that the software program had been used in a manner that violated the license. Tingley received information that Norse had assisted Aetna and Sequoia in benchmarking the software program on Sequoia’s equipment in Massachusetts. Benchmarking necessarily involved the copying and modification of the software program. Norse stood to gain a sizable commission from Sequoia if Aetna purchased Sequoia’s equipment.

On May 16, 1988, Tingley commenced suit against Norse in the United States District Court for the District of Connecticut, alleging copyright infringement, unauthorized access to and misuse of a computer system in violation of General Statutes §§ 53a-251 and 52-570b, tortious interference with a business relationship, misappropriation of trade secrets, common-law unfair competition and CUTPA violations. On July 28, 1988, the District Court, Nevas, J., dissolved the temporary restraining order obtained by Tingley, finding that there was no actual or imminent harm to Tingley. Norse moved for sanctions against Tingley.

On August 3, 1998, Tingley voluntarily dismissed the suit without prejudice pursuant to Rule 41 (a) (1) of the Federal Rules of Civil Procedure. Norse opposed the dismissal and moved to have Aetna made a party defendant to the action. The District Court, Nevas, J., granted Norse’s motion to vacate the dismissal and ordered Tingley to join Aetna as a party defendant. Tingley amended its complaint to cite in Aetna. Norse answered the amended complaint and alleged ten counterclaims against Tingley, including federal antitrust violations.

Following discovery and the filing of numerous motions, only two counts of Tingley’s amended complaint went to the jury, copyright infringement and tortious interference with business relations. Norse ultimately limited its counterclaims to five, alleging tortious interference with contractual relations, libel, slander, CUTPA violations and common-law unfair competition. Following trial, the jury returned a verdict in favor of Norse on both the amended complaint and its own counterclaims. The jury awarded Norse $1,610,500. Tingley filed postverdict motions, and the District Court reduced the verdict to $515,000. Norse again moved for sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure. In denying the motion for sanctions, the District Court, Restani, J., found that Tingley had probable cause to bring its claim for copyright violation.

Judgment entered in the federal litigation on September 15,1993. On September 20,1993, Norse commenced the present action against Tingley alleging vexatious litigation with malice pursuant to General Statutes § 52-568 (2), vexatious litigation pursuant to General Statutes § 52-568 (1), abuse of process and CUTPA violations. In 1995, Norse filed an application for a prejudgment remedy of more than $1,900,000, which was denied by the trial court following a two day hearing in October, 1996. Tingley then filed a motion for summary judgment, which the trial court granted. Norse appealed. We affirm the judgment of the trial court.

I

Norse’s first claim is that the trial court improperly failed to recuse itself from hearing Norse’s motion for summary judgment. Norse’s claim of judicial bias has two bases: first, that the trial court was privy to settlement discussions and, second, that the trial court acted with bias toward Norse as a result of the prejudgment remedy hearing. We do not agree.

The following additional facts are necessary for our review of this claim. Norse’s application for a prejudgment remedy was heard on October 9 and 10, 1996. Prior to the hearing, the trial court met with counsel in chambers during which time the prospects of settlement were discussed. Although there is no transcript of the discussion, the trial court made brief mention of the settlement discussion on the record prior to the prejudgment remedy hearing. Immediately following the trial court’s comment about the settlement discussion, counsel for Norse asked that the parties waive any objection to the prejudgment remedy application’s being heard by a judge trial referee.

Lief Petterson, president of Norse, was called as a witness to testify, in part, as to the damages Norse incurred as a result of the federal litigation. During cross-examination, Tingley’s counsel elicited a response from Petterson that revealed that he had not accurately represented the amount of attorney’s fees Norse had incurred at the time of his testimony in the federal case. A portion of the transcript of the federal trial was placed in evidence. It revealed that during his closing argument to the federal jury, Norse’s counsel, who knew the actual fee arrangements between Norse and its attorneys, adopted Petterson’s testimony as to attorney’s fees. The trial court voiced concern about the discrepancy between Petterson’s federal and state court testimony, and the argument of Petterson’s counsel before the federal jury. The trial court instructed Norse’s trial counsel to prepare an affidavit for the trial court to review and consider the next steps, if any. The trial court denied Norse’s application for a prejudgment remedy at the conclusion of the hearing.

On October 29,1996, Norse filed a motion for recusal. The motion for recusal was based on the trial court’s comments about Petterson’s testimony and the final argument of Norse’s counsel in the federal trial. The motion did not include an affidavit or a certification by counsel that the motion was made in good faith. The motion was denied by the trial court on December 5, 1996.

On December 16, 1996, Tingley filed a motion for summary judgment, which Norse opposed. The trial court heard argument on the motion for summary judgment on February 3, 1997. After Tingley’s counsel had argued, Norse’s counsel moved orally for the trial court to recuse itself. For the first time, Norse’s counsel cited the trial court’s participation in the settlement discussion as a basis for the motion and claimed the trial court had not given Norse a fair hearing with respect to the prejudgment remedy application. The trial court denied the motion for recusal.

“A motion to disqualify a judicial authority shall be in writing and shall be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of the counsel of record that the motion is made in good faith. The motion shall be filed no less than ten days before the time the case is called for trial or hearing, unless good cause is shown for failure to file within such time.” Practice Book § 997, now Practice Book (1998 Rev.) § 1-23. “This provision creates a mandatory procedure to be followed by any party seeking to recuse a judge. See State v. Cook, 183 Conn. 520, 521-23, 441 A.2d 41 (1981).” State v. Weber, 6 Conn. App. 407, 412, 505 A.2d 1266, cert. denied, 199 Conn. 810, 508 A.2d 771 (1986). “ ‘It is axiomatic that the burden of establishing a record that a judicial impropriety has occurred which demonstrates or gives the appearance of bias or partiality so as to require recusal rests with the party who claims the occurrence of such an impropriety.’ State v. Santangelo, 205 Conn. 578, 584, 534 A.2d 1175 (1987).” State v. Teel, 42 Conn. App. 500, 506, 681 A.2d 974, cert. denied, 239 Conn. 921, 682 A.2d 1012 (1996).

In this case, Norse did not comply with the rules of practice in either instance in which it attempted to have the trial court recuse itself. Norse’s written motion contained no affidavit setting forth the facts relied on to show the grounds for disqualification; it also contained no good faith certificate of the counsel of record. Norse never requested or demanded a hearing to present evidence to support its claim of judicial disqualification. “Representations made by counsel are not evidence in the record upon which we can rely in our review of the judge’s conduct. . . . [T]he dictates of Practice Book § 997 [now Practice Book (1998 Rev.) § 1-23], which requirements we hold to be mandatory are a condition precedent to a hearing on a judge’s disqualification. See State v. Cook, supra [183 Conn. 521-23].” State v. Weber, supra, 6 Conn. App. 413.

The motion made during the summary judgment hearing was not only oral, it was untimely, not having been filed ten days before the hearing. Norse also failed to show good cause why its second motion for recusal was not made within ten days of the hearing, particularly in view of the fact that the trial court denied the prejudgment remedy approximately four months before the hearing on the summary judgment motion. Because Norse failed to comply with the requirements of § 997, the trial court properly denied the motions for recusal. See O’Brien v. Coburn, 46 Conn. App. 620, 628, 700 A.2d 81, cert. denied, 243 Conn. 938, 702 A.2d 644 (1997).

II

Norse’s second claim is that the trial court improperly granted Tingley’s summary judgment motion. It bases that claim on its assertions that there are genuine issues of material fact and that the court misapplied the law with respect to Tingley’s advice of counsel special defense, and Norse’s abuse of process and CUTPA claims. We disagree.

The following facts are relevant to this claim. Norse’s suit against Tingley alleges the following claims: vexatious litigation with malice pursuant to § 52-568 (2) (count one), vexatious litigation pursuant to § 52-568 (l) (count two), abuse of process (count three) and CUTPA (count four). In its answer, Tingley asserted eleven special defenses, three of which are relevant to this appeal: Norse’s claims are barred by the doctrines of res judicata and collateral estoppel and, with respect to the vexatious litigation claim, Tingley’s actions were in reliance on the advice of counsel. Additional facts will be included as necessary.

“Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established.” Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 402, 528 A.2d 805 (1987). “The judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book § 384, now Practice Book (1998 Rev.) § 17-49. A “material fact” is a fact that will make a difference in the result of the case. See Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). The facts at issue are those alleged in the pleadings. See Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 489, 280 A.2d 359 (1971). The party seeking summary judgment “has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.” D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). Pursuant to Practice Book §§ 380 and 381, now Practice Book (1998 Rev.) §§ 17-45 and 17-46, the party adverse to such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Citations omitted; internal quotation marks omitted.) Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990).

“While the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986), a party may not ‘rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.’ Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S. Ct. 1570, 94 L. Ed. 2d 762 (1987).” Gallien v. Connecticut General Life Ins. Co., 49 F.3d 878, 882 (2d Cir. 1995). “On appeal, however, the burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980).” 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn. App. 563, 567, 636 A.2d 1377 (1994).

A defendant’s motion for summary judgment “is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.” Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 543, 494 A.2d 555 (1985). Because issues in this appeal concern questions of law, this court reviews such claims de novo. See Aetna Life & Casualty Co. v. Bulaong, 218 Conn. 51, 58, 588 A.2d 138 (1991); Schratwieser v. Hartford Casualty Ins. Co., 44 Conn. App. 754, 757, 692 A.2d 1283, cert. denied, 241 Conn. 915, 696 A.2d 340 (1997).

A

Norse’s first claim is that Tingley’s motion for summary judgment should have been denied because there is a genuine issue of material fact as to whether Tingley had probable cause to initiate the federal court litigation. The following additional facts are necessary for our analysis.

Tingley’s motion for summary judgment was based on its having probable cause to commence a copyright infringement claim against Norse in federal court. The motion was supported by affidavits of Tingley’s counsel, and the testimony of various Tingley and Norse employees, among other things. Norse opposed summary judgment, claiming that because the federal jury found Tingley had malice in bringing its claim of copyright infringement against Norse, Tingley lacked probable cause and the real purpose in commencing the litigation was to put Norse out of business. Norse also heavily relies on its interpretation of Tingley’s prelitigation investigation.

In granting Tingley’s motion for summary judgment, the trial court found the following facts. “The dispute had its origin in a licensing agreement between Tingley, a computer software company, and Aetna. Aetna was licensed to use Tingley software, but was to maintain it in a confidential manner. In 1988, Tingley learned its copyrighted software had been permitted by Aetna to be taken to another site, where a computer seller tested it with an eye to determining whether the software could be utilized with that company’s equipment. Norse was the ‘middle man’ for this operation, and if the tests indicated compatibility between the Tingley software and the seller’s equipment, Norse would be entitled to a commission ....

“Tingley’s investigation confirmed these facts, and there does not appear to be any question but that these events occurred. In fact, one George Curley, an Aetna employee, admitted in the federal litigation that this had occurred and that the Tingley-Aetna licensing agreement had been breached.”

In addition to those facts, which the trial court described as “undisputed,” the trial court took note of the evidence that Tingley presented in support of its summaiy judgment motion: affidavits from two of its attorneys, experts in computer law who were involved in the federal litigation, attesting that it was their belief that “a sufficient factual basis existed to allege each of the claims asserted,” and a transcript of the District Court on Norse’s postverdict motion for Rule 11 sanctions.

Although it is pleaded in several alternatives, Norse’s claim against Tingley is really one of vexatious litigation. “A vexatious suit is a type of malicious prosecution action, differing principally in that it is based upon a prior civil action, whereas a malicious prosecution suit ordinarily implies a prior criminal complaint. To establish either cause of action, it is necessary to prove want of probable cause, malice and a termination of suit in the plaintiff’s favor .... Probable cause is the knowledge of facts sufficient to justify a reasonable person in the belief that there are reasonable grounds for prosecuting an action .... Malice may be inferred from lack of probable cause .... The want of probable cause, however, cannot be inferred from the fact that malice was proven .... The existence of probable cause is an absolute protection . . . and what facts, and whether particular facts, constitute probable cause is always a question of law.” (Citations omitted; internal quotation marks omitted.) Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978).

“For purposes of a vexatious suit action, ‘[t]he legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.’ Wall v. Toomey, 52 Conn. 35, 36 (1884); accord Ledgebrook Condominium Assn., Inc. v. Lusk Corp., 172 Conn. 577, 584, 376 A.2d 60 (1977). ‘Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of.’ Shea v. Berry, 93 Conn. 475, 477, 106 A. 761 (1919). Thus, in the context of a vexatious suit action, the defendant lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted.” DeLaurentis v. New Haven, 220 Conn. 225, 256, 597 A.2d 807 (1991).

Neither of the parties disputes that the software program was copied and taken from Aetna’s offices in Middletown and transported to Sequoia’s facilities in Massachusetts for the benchmarking. Also, no one disputes that Norse was a party to the benchmarking. Therefore, the trial court ruled Norse had not “successfully responded to [Tingley’s] arguments as to the facts and law” and granted summary judgment. What facts constitute probable cause is a question of law. See Vandersluis v. Weil, supra, 176 Conn. 356.

The essence of Norse’s appeal is that it does not agree with the trial court’s finding of facts and would have this court reinterpret the facts. Norse bases its argument on the federal jury’s finding that Tingley commenced the federal suit with malice. Because there was a finding of malice, Norse believes Tingley brought the federal court action to put Norse out of business. What Norse believes is not relevant to the issue of Tingley’s reasonable belief in grounds to commence the lawsuit. Although malice is probably a motivating factor in much litigation, malice alone is not sufficient to prove vexatious litigation. Want of probable cause may prove malice, but malice does not prove a lack of probable cause. See id.

Norse’s claim that the District Court’s ruling on the Rule 11 sanctions motion is not res judicata as to the question of probable cause is not availing. The trial court did not rule that the issue of probable cause was previously adjudicated in the District Court. The trial court merely identified the District Court’s ruling as evidence of Tingley’s reasonable belief that it had reasonable grounds for prosecuting a copyright infringement claim against Norse. The trial court properly granted Tingley’s motion for summary judgment on the claim of vexatious litigation.

B

Norse’s next claim is that the trial court improperly applied the law with respect to Tingley’s special defense to the vexatious litigation claim that it relied on the advice of counsel. We agree with the trial court.

Tingley presented uncontested evidence from two lawyers, experts in the field of computer law, who testified that based on Tingley’s investigation there were reasonable grounds for Tingley to allege the claims it asserted. “Advice of counsel is a complete defense to an action of . . . vexatious suit when it is shown that the defendant . . . instituted his civil action relying in good faith on such advice, given after a full and fair statement of all facts within his knowledge, or which he was charged with knowing.” Id., 361. Norse contends that the testimony of one of the lawyers with respect to the law of copyrighted materials was legally incorrect. We need not decide that question. “The fact that the attorney’s advice was unsound or erroneous will not affect the result.” Id.

Norse attempts to distinguish Vandersluis from the facts of the case before us. Norse claims that the “advice of counsel” defense is available only to common-law claims of vexatious litigation and not the § 52-568 statutory causes of action it alleged. Norse cites no law in support of its argument. The elements of a common-law or statutory cause of action for vexatious litigation are identical. Therefore, the special defense of advice of counsel can be pleaded in response to both causes of action.

C

Norse’s final claim is that the trial court improperly applied the doctrine of res judicata to count three, abuse of process, and count four, CUTPA, in granting Tingley’s motion for summary judgment. Because public policy prohibits a party from relitigating a matter that has been previously determined, we agree with the trial court that Norse’s CUTPA and abuse of process claims are barred by the doctrine of res judicata.

“[CJlaim preclusion, sometimes referred to as res judicata, and issue preclusion, sometimes referred to as collateral estoppel, are first cousins. Both legal doctrines promote judicial economy by preventing relitigation of issues or claims previously resolved. . . .

“[T]he doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose .... The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it.

“We have adopted a transactional test as a guide to determining whether an action involves the same claim as an earlier action so as to trigger operation of the doctrine of res judicata. [T]he claim [that is] extinguished [by the judgment in the first action] includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. What factual grouping constitutes a ‘transaction,’ and what groupings constitute a ‘series,’ are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage. ... In applying the transactional test, we compare the complaint in the second action with the pleadings and the judgment in the earlier action. . . .

“We recognize that the mere explication of the doctrine of claim preclusion does not resolve all difficulties which may appear at the point of application. As was stated long ago, the law of estoppel by judgment is well settled, the only difficulty being in its application to the facts. . . . The difficulty has always been in determining what matters are precluded by the former adjudication. ... In applying the rule of claim preclusion, the critical question is how broad a definition to give to the term same claim or cause of action. The broader the definition, the broader the scope of preclusion.” (Citations omitted; internal quotation marks omitted.) Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 589-91, 674 A.2d 1290 (1996).

1

In the federal court litigation, Norse asserted a tortious interference with contractual relations counterclaim against Tingley, alleging in part that Tingley, “knowing of the contractual relationship by and between Norse and Sequoia, intentionally sought to interfere with said contractual relationship by making certain defamatory statements and allegations to Sequoia about Norse with the intent of stopping any payment to Norse pursuant to its agreement with Sequoia.” The federal jury found in favor of Norse on this counterclaim, and judgment entered against Tingley.

In the amended complaint before the trial court, Norse asserted a CUTPA claim, alleging, in part: “Tingley engaged in unfair methods of competition and/or unfair or deceptive acts or practices in the conduct of such trade or commerce in violation of General Statutes § 42-110b, including but not limited to the following: (A) Tingley commenced the previous underlying frivolous and vexatious litigation against Norse for the primary improper ulterior motive of financially destroying its business competitor, [Norse]; (B) Tingley commenced the underlying previous frivolous and vexatious litigation with knowledge and with the intent that it would substantially interfere with and terminate any existing advantageous business or contractual relationship between Norse and Aetna and/or Norse or Sequoia . . . .”

The CUTPA claim before the trial court is an attempt to assert a hybrid claim of both tortious interference with a business or contractual relationship and vexatious litigation. This is a tortious interference with a business or contractual relationship claim recast as a CUTPA claim. Any claim for tortious interference with Norse’s business or contractual relationships was resolved in the federal litigation. Norse cannot now have a second bite of the apple for damages resulting from an injury to its business interests. Therefore, Norse’s CUTPA claim is barred by the doctrine of res judicata.

2

Norse next claims that the trial court improperly held that Norse’s abuse of process claim was barred by the doctrine of res judicata because it could have been asserted in the federal litigation. Norse maintains that because the claim was not ripe for adjudication, it could not have been asserted in the federal litigation. Although we affirm the trial court’s judgment that Norse’s abuse of process claim is barred by the doctrine of res judicata, we reach this conclusion on the basis of grounds different from those relied on by the trial court. We find that the claim is barred because it is essentially a claim of tortious interference with a business or contractual relationship that was decided by the federal court. We also hold that as a matter of law, the facts of this case do not constitute an abuse of process.

Norse alleged no abuse of process claim in its counterclaims in the federal litigation. In count three of its amended complaint before the trial court, Norse alleged that Tingley had commenced a civil action against it in the District Court, that Tingley had prosecuted the prior action “with the primary ulterior and improper motive to harm and/or destroy its business competitor, Norse. . . . There was no probable cause justifying commencement and prosecution of the [federal litigation] . . . [and] Norse suffered financial damages as a result of Tingley’s abuse of process . . . .”

Once again, Norse attempts to assert a tortious interference with business or contractual relationships as another cause of action, specifically, abuse of process. A tortious interference with business or contractual relationship claim cannot be converted into an abuse of process claim simply by labeling it as such. Furthermore, the facts of this case, as a matter of law, do not constitute abuse of process.

“The action of malicious prosecution lies where a civil or criminal action has been instituted with malice and without probable cause, and has terminated unsuccessfully. The plaintiff must allege and prove that the original action, whether civil or criminal, was instituted without probable cause, with malice, and that it terminated in his favor. Abuse of process is the misuse of process regularly issued to accomplish an unlawful ulterior purpose. . . . The distinction between malicious prosecution or vexatious suit and abuse of process as tort actions is that in the former the wrongful act is the commencement of an action without legal justification, and in the latter it is in the subsequent proceeding, not in the issue of process but in its abuse.” Schaefer v. O. K. Tool Co., 110 Conn. 528, 532, 148 A. 330 (1930). “An action for abuse of process lies against any person using ‘a legal process against another in an improper manner or to accomplish a purpose for which it was not designed.’ Varga v. Pareles, [137 Conn. 663, 667, 81 A.2d 112 (1951)]; Schaefer v. O. K. Tool Co., [supra, 532-33]. Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process, the Restatement Second (1977) of Torts, § 682, emphasizes that the gravamen of the action for abuse of process is the use of ‘a legal process . . . against another primarily to accomplish a purpose for which it is not designed . . . .’ ... Comment b to § 682 explains that the addition of ‘primarily’ is meant to exclude liability ‘when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant.’ See also 1 F. Harper, F. James & O. Gray, Torts (2d Ed. 1986) § 4.9; R. Mallen & V. Levit, Legal Malpractice (2d Ed. 1981) § 61; W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 121.” (Emphasis in original.) Mozzochi v. Beck, 204 Conn. 490, 494, 529 A.2d 171 (1987).

In the case before us, Tingley commenced the federal litigation with probable cause to protect its copyright. Tingley pursued federal litigation for its intended purpose, i.e., to obtain damages for copyright violations by means of a successful lawsuit. A party does not abuse legal process merely by filing a lawsuit. To allege a viable cause of action for abuse of process, a claimant must “point to specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation.” Id., 497. Norse failed to allege any specific injury beyond the normal contemplation of private litigation.

The judgment is affirmed.

In this opinion the other judges concurred.

       See General Statutes § 42-110a et seq.

       Benchmarking is a test of the compatibility among a computer software program, the data to be processed and the computer hardware.

       Under the terms of the license, the software program was to be used on a designated computer at Aetna’s Middletown offices.

       The motion for sanctions was eventually denied based on a stipulation of the parties.

       Rule 41 (a) (1) provides in relevant part: “Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment . . . .”

       Following postverdict motions, Norse was awarded $515,000, in damages on its counterclaim, $20,000 of which was punitive in nature pursuant to CUTPA.

       Some of the damages awarded by the jury were duplicative.

       Rule 11 (c) provides: “Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.”

       Further action in the Superior Court was delayed pending the outcome of Tingley’s appeal to the United States Court of Appeals for the Second Circuit.

       The trial court stated: “All right. Our efforts in another direction having failed, let’s proceed with the hearing on the PJR.”

       See Practice Book § 430, now Practice Book (1998 Rev.) § 19-3.

       In the federal case, Petterson testified that Norse had incurred approximately $250,000 in legal fees. During the prejudgment remedy hearing, Petterson testified that from the time the federal litigation commenced until the temporary injunction was dissolved, Norse incurred attorney’s fees at an hourly rate (approximately $80,000). After the District Court vacated Tingley’s withdrawal of the federal action, Norse entered into a contingency fee agreement with its counsel. Norse’s counsel, however, continued to provide Norse with summaries of the time devoted to the case. During the prejudgment remedy hearing, Petterson was unable to distinguish fees related to the defense of Tingley’s claim from fees attributable to the prosecution of its counterclaims.

       Norse’s counsel argued to the jury, “Now, there is what is called punitive damages. But under that category, you can also take note of the legal fees and costs that Norse has incurred in defending itself—that Norse has incurred in defending itself against these charges, in dealing with these charges, up through today. You have heard evidence from Mr. Petterson that that cost was about $250,000.”

       The attorney who represented Norse in the federal trial was not the same attorney who represented Norse in the Superior Court, although the two attorneys were partners at the time of the federal trial.

       The trial court stated: “What I would like, Mr. Bainer, to set my mind at ease that I’m doing my chore diligently and properly, I’d like an affidavit from you, outlining the fee arrangement with Mr. Petterson, so that I am able to ascertain from that document what the state of the billings and finances were at the time of trial. I know the contingency fee basis was involved there. I’d like a statement of that, that I can examine at my leisure and do the fair thing and right thing.”

       Even if we were to consider Norse’s oral motion for recusal as a motion to reargue, it, too, would not have been timely filed. Practice Book § 204B (a), now Practice Book (1998 Rev.) § 11-12, provides in relevant part: “A party who wishes to reargue a decision or order rendered by the court shall, within twenty days from the issuance of notice of the rendition of the decision or order, file a motion to reargue . . . .” (Emphasis added.)

       General Statutes § 52-568 provides: “Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages.”

       See footnote 17.

       One of the attorneys also testified at the hearing on the summaiy judgment motion.

       In ruling on Norse’s postverdict motion for Rule 11 sanctions, the District Court, Restani, J. stated: “The motion for sanctions. Motions for sanctions are inappropriate. . . . [Tingley] had a good claim for copyright infringement. It has had some other dubious claims, which it voluntarily dismissed, and at one point in time it had a reason for bringing those claims. It soon found out that it didn’t have a very good reason, and that caused a lot of the problems here. It should have found out sooner, I suppose, but as far [as] what it did in this court, after the counsel was substituted, I really do not see a good reason to rule for sanctions, and they are denied. I think that Tingley pursued its claims appropriately. If it overstated some of its claims, well, [Norse] overstated some of its claims, too, and I think ... it put Tingley to some disadvantage, at least initially, with its moving around on its damages theory .... Rule 11 sanctions in such a case, with laws going back and forth, would not be appropriate . . . Rule 11 is out. No sanctions.”

       “We can sustain a right decision although it may have been placed on a wrong ground.” Stapleton v. Lombardo, 151 Conn. 414, 417, 198 A.2d 697 (1964).


source: Caselaw Access Project

author: O’CONNELL, C. J.

license: Public Domain

text:
    DERBY SAVINGS BANK v. WALTER T. OLIWA ET AL.
    (AC 17613)
    O’Connell, C. J., and Schaller and Spear, Js.
    Argued June 8
    officially released July 28, 1998

      Edward R. Giacci, for the appellant (defendant).

      Karen K. Clark, with whom were William W. Cote and, on the brief, Thomas A. Gugliotti, for the appellee (plaintiff).
   Opinion

O’CONNELL, C. J.

The defendant appeals from the trial court’s judgment reforming his mortgage deed and granting strict foreclosure. The record discloses that on March 30, 1988, the defendant executed a mortgage deed and note to the plaintiff. Due to a mistake, the mortgage deed contained a description of the wrong property. The trial court granted reformation of the mortgage deed so that it described the property that the parties had intended it to cover. Thereafter, the trial court granted strict foreclosure of the reformed mortgage. The defendant claims that the trial court abused its discretion in granting the reformation. We affirm the judgment of the trial court.

The trial court found that both parties intended the mortgage to cover property other than that described in the mortgage deed and that the error resulted from a mistake by the attorney who prepared the mortgage documents. The court found this to be a mutual mistake. Specifically, the trial court found that the commitment letter, which was signed by both parties, described what was found to be the parcel of land actually covered by the mortgage. Moreover, the mortgage note contained a notation in its lower left corner describing the correct property. “Reformation of a deed can be ordered when it has been executed as the result of a mutual mistake and by reason thereof each party has done what neither intended.” Patalano v. Chabot, 139 Conn. 356, 359, 94 A.2d 15 (1952).

“A cause of action for reformation of a contract rests on the equitable theory that the instrument sought to be reformed does not conform to the real contract agreed upon and does not express the intention of the parties and that it was executed as the result of mutual mistake .... We have held that this also applies to actions for reformation of a deed . . . the function of which is merely to pass title to land, pursuant to the agreement of the parties. . . . Reformation is not granted for the purpose of alleviating a hard or oppressive bargain, but rather to restate the intended terms of an agreement when the writing that memorializes that agreement is at variance with the intent of both parties . . . .Equity evolved the doctrine because an action at law afforded no relief against an instrument [which was] a result of mutual mistake.” (Citations omitted; internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 531-32, 441 A.2d 151 (1981).

“Reformation is appropriate in cases of mutual mistake—that is where, in reducing to writing an agreement made or transaction entered into as intended by the parties thereto, through mistake, common to both parties, the written instrument fails to express the real agreement or transaction. . . . [Reformation is also available in equity when the instrument does not express the true intent of the parties owing to the mistake of one party . . . .” (Citations omitted; internal quotation marks omitted.) Harlach v. Metropolitan Property & Liability Ins. Co., 221 Conn. 185, 190-91, 602 A.2d 1007 (1992).

Reformation and foreclosure are both equitable proceedings. When a decision in an equitable matter lies within the trial court’s discretion, an appellate court will reverse that decision “ ‘only when an abuse of discretion is manifest or where an injustice appears to have been done’ ...” Nevers v. Van Zuilen, 47 Conn. App. 46, 51, 700 A.2d 726 (1997). We do not find an abuse of discretion or injustice in the action of the trial court in the present case.

The judgment is affirmed and the case is remanded for the purpose of setting a new law day.

In this opinion the other judges concurred.

       An attempt, to correct the error by rerecording the mortgage deed with a correct property description attached but without the defendant’s reexecution of the deed was a nullity.


author: PER CURIAM.

text:
    ROSAMARIA BONAMICO v. CITY OF MIDDLETOWN ET AL.
    (AC 16562)
    O’Connell, C. J., and Foti and Hennessy, Js.
    Submitted on briefs June 5
    officially released July 28, 1998

      Averum J. Sprecher filed a brief for the appellants (plaintiffs).

      Andrew J. O’Keefe and Joseph M. Busher, Jr., filed a brief for the appellees (named defendant et al.).
   Opinion

PER CURIAM.

This case concerns injuries suffered by a child in a school corridor. On February 24, 1998, we affirmed the judgment of the trial court striking the first twelve counts of the complaint. The issue that we considered was whether the complaint alleged sufficient facts to bring the case within the identifiable person-imminent harm exception to the governmental immunity rule. We concluded that it did not and affirmed the judgment of the trial court. Bonamico v. Middletown, 47 Conn. App. 758, 764, 706 A.2d 1386 (1998). The case was thereafter remanded to this court by the Supreme Court for reconsideration in light of Purzycki v. Fairfield, 244 Conn. 101, 708 A.2d 937 (1998). Bonamico v. Middletown, 244 Conn. 923, 714 A.2d 8 (1998). Purzycki also concerned an injury to a child in a school corridor and the application of the exception to the governmental immunity rule.

Pursuant to the remand, we have reconsidered our decision and conclude that the Purzycki case controls and requires a result contrary to that reached when the case was previously before us.

The decision of this court in Bonamico v. Middletown, supra, 47 Conn. App. 758, is hereby vacated; the judgment of the trial court is reversed and the case is remanded for further proceedings.


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. HARRY RODRIGUEZ
    (AC 16218)
    O’Connell, C. J., and Schaller and Healey, Js.
    Argued April 29
    officially released August 4, 1998

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

      SusannE. Gill, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Gerard P. Eisenman, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Harry Rodriguez, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1), commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). On appeal, the defendant claims that the trial court improperly (1) instructed one panel of venirepersons in its preliminary remarks concerning the presumption of innocence and (2) instructed the jury concerning the finding of an affirmative fact from its denial by a witness. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 21, 1995, Colleen Bachard, the victim, visited the defendant at his house on Stillman Street in Bridgeport. Bachard and the defendant began to argue when she noticed “hickeys” on the defendant’s neck. Bachard left the defendant’s house and subsequently joined the defendant’s sister, Maria Perez, and Perez’ friend, Christina Santiago. Bachard then walked to the comer of Berkshire and East Main Streets accompanied by the two women. Bachard testified that she was going to the comer to meet a woman named Melissa, whom she suspected was responsible for the hickeys on the defendant’s neck.

While the women were waiting on the street comer, the defendant rode up on a bicycle. The defendant and Bachard began arguing again. The argument escalated and Bachard and the defendant began to exchange blows. While Bachard and the defendant were fighting, a friend of Bachard’s, Carlos Diaz, and his passenger, Brian Puffen, drove by in Diaz’ car. Seeing the altercation, Diaz turned his car around and came back. As Bachard began to walk into the street, signaling to Diaz, the defendant shouted that if she kept on walking he was going to shoot her. Immediately thereafter, four shots were fired. Bachard fell to the ground, bleeding from a bullet wound to her neck. Several police officers responded to the scene almost immediately. By the time the police arrived, however, the defendant had fled on his bicycle. Bachard was taken to a hospital, where she was treated and released nine days later.

The state charged the defendant with attempted murder in violation of General Statutes § § 53a-54a and 53a-49, assault in the first degree in violation of § 53a-59 (a) (l), commission of a class A, B or C felony with a firearm in violation of § 53-202k and carrying a pistol without a permit in violation of § 29-35 (a). 6At trial, the defendant alleged that he had been shooting at Diaz in self-defense and struck Bachaxd by mistake. To support his self-defense claim, the defendant presented testimony of his sister, Perez, that after Diaz parked the car he got out and shot at least two times over the hood of the car at the defendant before the defendant returned fire. In addition, the defendant presented expert testimony showing that gunshot residue was found in various locations on the interior of Diaz’ car.

On March 13, 1996, the jury found the defendant not guilty of the crime of attempted murder, but guilty of the crime of assault in the first degree. The jury also found the defendant guilty of carrying a pistol without a permit and commission of a class A, B or C felony with a firearm. The trial court sentenced the defendant to twenty years imprisonment, suspended after fifteen years, and five years probation on the charge of assault in the first degree, five years imprisonment to run consecutively on the charge of commission of a felony with a firearm and five years imprisonment to run concurrently on the charge of carrying a pistol without a permit. This appeal followed.

I

The defendant first claims that the trial court improperly instructed a panel of potential jurors concerning the presumption of innocence. Specifically, the defendant claims that the trial court, by one statement in its preliminary remarks to a panel of potential jurors, undermined the presumption of innocence and violated his constitutional rights to due process of law, to an impartial jury, to present a defense and to confront adverse witnesses. We do not agree.

In its preliminary remarks, the trial court gave a brief overview of the component parts of the trial, instructed the potential jurors to keep an open mind throughout the trial and attempted to quell any fears they might have about being adequate for the task. The trial court also offered a preliminary explanation of the concept of the presumption of innocence. Two members of this panel of venirepersons became jurors.

The defendant failed to raise this claim at trial and now seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or, alternatively, under the plain error doctrine. “A defendant may prevail under the third prong of Golding on a claim of instructional error only if, considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled. . . . Moreover, this court will reverse a judgment for plain error only in the truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Citations omitted; internal quotation marks omitted.) State v. Webb, 238 Conn. 389, 457, 680 A.2d 147 (1996). We conclude that the defendant cannot prevail under either of these standards.

“Preliminary instructions to prospective jurors in a criminal case are not mandatory. . . . When preliminary instructions are given, they do not supersede those given after evidence and arguments under our practice.” (Citations omitted; internal quotation marks omitted.) State v. Figueroa, 235 Conn. 145, 184, 665 A.2d 63 (1995). Analogous to those situations where a court attempts to clarify the phrase reasonable doubt, judicial attempts to clarify the meaning of the phrase presumption of innocence by explanation, elaboration or illustration may tend to confuse or mislead; however, such explanations do not necessarily constitute reversible error. State v. Webb, supra, 238 Conn. 457; State v. Figueroa, supra, 184; cf. State v. DelVecchio, 191 Conn. 412, 420, 464 A.2d 813 (1983). The question on appeal is whether the court’s statements correctly conveyed the concept of presumption of innocence to the jury. “ ‘In determining whether preliminary jury instructions require reversal, we must ask whether the jury was fully and properly instructed at the critical time, after all the evidence and after the arguments of counsel.’ ” State v. Webb, supra, 457.

In its final instructions, the trial court informed the jury that “[i]n this case, as in all criminal cases, the accused is presumed to be innocent until he is proven guilty. That means that at the moment when he was presented here before you for trial, he is free from any bias, prejudice or burden arising from his position as the accused. He was then innocent and he remains innocent until such time as the evidence presented in the ordinary course of this trial, here in this courtroom, satisfies you that he is guilty. ” The trial court specifically told the jury, “You must not consider the information as evidence of guilt or draw any inference of guilt from the fact that the accused was—has been arrested and charged. The arrest is as consistent with innocence as it is with any other concept.” The trial court also instructed the jury that the state has the burden of proving the guilt of the accused and that the accused does not have to prove his innocence. The trial court explained that “[t]he law presumes a defendant to be innocent of the crime, thus, a defendant—although the accused begins the trial with a clean slate, with no evidence against him, and the law permits nothing but legal evidence presented before the jury to be considered in support of any charge against the accused.” The trial court further instructed that “the presumption alone—of innocence—alone is sufficient to acquit a defendant unless the jurors are satisfied beyond a reasonable doubt of his guilt after a careful and impartial consideration of all the evidence in the case.” The trial court then went on to explain the concept of reasonable doubt.

Our review of the entire record in this case persuades us that the defendant was not prejudiced by the trial court’s preliminary instruction that it “has been determined by a magistrate of this court that the crime charged probably was committed and that the accused probably had something to do with it.” The jury was fully and correctly instructed as to the principles of the defendant’s presumption of innocence and the state’s burden of proof beyond a reasonable doubt at final instructions. Therefore, the defendant was not deprived of his constitutional right to a fair trial and may not prevail under State v. Golding, supra, 213 Conn. 239-40, because he has not demonstrated that an error of constitutional magnitude clearly exists. State v. Webb, supra, 238 Conn. 458; State v. Figueroa, supra, 235 Conn. 184-85. Similarly, the trial court’s preliminary instructions did not affect the fairness and integrity of and public confidence in the judicial proceedings and, therefore, did not constitute plain error. State v. Webb, supra, 458; State v.Figueroa, supra, 185; State v. Wright, 207 Conn. 276, 288-89, 542 A.2d 299 (1988).

II

The defendant next claims that the trial court improperly instructed the jury concerning the finding of an affirmative fact from its denial by a witness. The defendant did not object to the instruction at trial, but now seeks review under State v. Golding, supra, 213 Conn. 239-40; see footnote 9; or, alternatively, under the plain error doctrine. The defendant acknowledges the well-settled rule that a jury is not permitted to infer, from its disbelief of a witness’ testimony, that the opposite is true; State v. Alfonso, 195 Conn. 624, 634, 490 A.2d 75 (1985); Anderson v. Anderson, 191 Conn. 46, 56, 463 A.2d 578 (1983); Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147 (1979); State v. Mayell, 163 Conn. 419, 426-27, 311 A.2d 60 (1972); State v. Coleman, 14 Conn. App. 657, 671-72, 544 A.2d 194, cert. denied, 208 Conn. 815, 546 A.2d 283 (1988); yet argues that the rule is too broad and should apply only against the party bearing the burden of proof. Specifically, the defendant argues that the instruction violated his rights to due process of law, to present a defense and to confront adverse witnesses. We are not persuaded.

The record before us is adequate to review the defendant’s claim. The defendant, however, has failed to meet the second prong of the Golding test because his claim of instructional impropriety is not one of constitutional magnitude. “ ‘Just as every claim of evidentiary error by the trial court is not truly constitutional in nature; see, e.g., [State v. Golding, supra, 213 Conn. 241]; every claim of instructional error is not truly constitutional in nature. . . . Indeed, it would trivialize the constitution to transmute a nonconstitutional claim into a constitutional claim simply because of the label placed on it by a party or because of a strained connection between it and a fundamental constitutional right.’ ” (Citations omitted.) State v. Dash, 242 Conn. 143, 151-52, 698 A.2d 297 (1997).

It is axiomatic under Connecticut law that while a jury may reject a witness’ testimony, a jury in rejecting such testimony is not entitled to conclude that the opposite is true. State v. Alfonso, supra, 195 Conn. 634; Anderson v. Anderson, supra, 191 Conn. 56. Because this rule is firmly rooted in Connecticut jurisprudence, we do not find fault with the trial court’s instruction. In the absence of a showing that the instruction was likely to be misunderstood by the jurors or that the jury was advised how to decide the case, it strains the meaning of constitutional claims to say that this claimed instructional error is constitutional in nature. State v. Walton, 227 Conn. 32, 65, 630 A.2d 990 (1993). Therefore, we decline to review the defendant’s claim because the defendant has failed to allege a claim of constitutional magnitude as required by the second prong of Golding. See State v. Hines, 243 Conn. 796, 817-18, 709 A.2d 522 (1998); State v. Walton, supra, 63-65; State v. Garrett, 42 Conn App. 507, 518-19, 681 A.2d 362, cert. denied, 239 Conn. 928, 929, 683 A.2d 398 (1996). Similarly, the trial court’s instruction did not affect the fairness and integrity of and public confidence in the judicial proceedings and, therefore, did not constitute plain error. State v. Webb, supra, 238 Conn. 458.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also claims that the trial court improperly convicted him of commission of a class A, B or C felony with a firearm under General Statutes § 53-202k. The defendant argues that § 53-202k constitutes a sentence enhancement provision rather than a separate offense and that he should not have been convicted under this provision. The state conceded that this claim is correct. State v. Dash, 242 Conn. 143, 146, 698 A.2d 297 (1997); State v. Williams, 48 Conn. App. 361, 373, 709 A.2d 43, cert. denied, 245 Conn. 907, 718 A.2d 16 (1998). At oral argument, both parties agreed that the defendant has already been resentenced by the trial court. This issue is moot, and we need not address it further.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception . . . .”

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

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

         General Statutes § 53-202k provides: “Any person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm, as defined in section 53a-3, except an assault weapon, as defined in section 53-202a, shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”

       General Statutes § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. . . .”

       The trial court subsequently resentenced the defendant; see footnote 1; to twenty years imprisonment suspended after fifteen years and five years probation on the charge of assault in the first degree; this sentence was enhanced by five years imprisonment on the charge of commission of a felony with a firearm, and five years imprisonment to run concurrently on the charge of carrying a pistol without a permit.

       The defendant claims a violation of article first, §§ 8 and 9, of the constitution of Connecticut with respect to the presumption of innocence. Because the defendant failed to provide an adequate basis for an independent analysis of the applicable state constitutional protections, we limit our review to the federal constitutional claim. State v. Zarick, 227 Conn. 207, 226 n.18, 630 A.2d 565, cert. denied, 510 U.S. 1025, 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993); State v. Santiago, 224 Conn. 325, 328 n.4, 618 A.2d 32 (1992); State v. Joly, 219 Conn. 234, 258 n.16, 593 A.2d 96 (1991); State v. Jones, 35 Conn. App. 839, 843 n.5, 647 A.2d 43 (1994).

       In explaining the concept of the presumption of innocence, the trial court instructed the panel of potential jurors in relevant part: “Now, the other concepts have to do with your view toward being here this morning. And you heard about the presumption of innocence, correct? You heard that mentioned by Judge Ronan, I presume. And it wasn’t new to you. You’ve heard it before in your life. But now that you’re in this room, you look around the room, you figure out who’s who. I’ve already told you that he’s the state’s attorney. You figured out [that] I’m the judge. Mr. Abbamonte is representing the accused; he’s seated to Mr. Abbamonte’s left. His name is Harry W. Rodriguez. So let’s focus on him, on the presumption of innocence.
      “That is a presumption that everybody should maintain in their own mind. It is a requirement under the constitution. This accused and every other person in this country is entitled to it. And it means that the accused is presumed to be innocent and that presumption remains with him throughout the course of the trial. Until such time as the evidence produced in this courtroom, in the orderly process of this trial, satisfies you that he is guilty and no longer entitled to that presumption.
      “So what does it mean to you now? It means the same thing to me. It means that this is a person merely charged with a crime on the say-so of somebody else. [He has] been arrested based on probable cause, the lowest level of proof, and only determined to know that he has been determined by a magistrate of this court that the crime chargedprobably was committed and that the accused probably had something to do with it. But that’s on the say-so of others, you see. And these trials—the trial here in this courtroom is based on the burden of proof beyond all reasonable doubt, a much, much heavier burden. A much stronger picture has to be developed. By who? By others who gave information before who will be brought in here under oath and examined and cross-examined. Much different. Sometimes stories change.
      “So focusing on the accused, is there something bothering you about the presumption? Does he look guilty? Is this something you can deal with? It’s certainly not fair, is it? Must he have done something or he wouldn’t be here? That oftentimes comes across the juror’s mind. But that’s suspicion, isn’t it? Would you want to be treated that way? Convicted by suspicion alone. He’s been accused, an accusation. Is that enough for you? Is that enough for our society? Of course not. What’s wrong with affording him the presumption and waiting to see what the facts are? Because you know nothing about the case. Some of you would say, ‘Well, judge, you’re being awfully presumptuous. You think that I’ve already made up my mind.’ And of course you recognize that would be stupid, because you don’t know anything about the case. Unless you have some private knowledge. And we’ll ferret that out shortly.
      “So those are the things that have to be—you have to be concerned with. That you remove from your mind any kind of suspicion, any basis of accusation; that you take care of any bias you might have, any prejudice you might have. If you can’t do that, then you’re obligated to tell us that. And if you have the ability to tell us that, be sure you have the ability to explain it.” (Emphasis added.)

       “Under Golding, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant [in] the particular circumstances.” (Internal quotation marks omitted.) State v. Lasky, 43 Conn. App. 619, 631 n.5, 685 A.2d 336 (1996), cert. denied, 239 Conn. 959, 688 A.2d 328 (1997).

       The trial court’s final instructions did not discuss the magistrate’s determination in explaining the concept of presumption of innocence. The defendant does not claim on appeal that the trial court’s final instructions were improper, nor did he seek a curative final instruction as to the preliminary instructions.

       In explaining the difference between direct and circumstantial evidence, and the process of drawing inferences from facts the jury finds proven, the trial court instructed in relevant part: “The fact that there is antimony and barium and lead found inside a vehicle in and of itself and the manner of the testimony having to do with that, that is a condition, that is a circumstance, and whether or not you’re to draw an inference that a gun was fired, depositing gunshot residue within the vehicle, you have to determine from everything you’ve heard on that. Is it reasonable and logical to draw such an inference? Is it reasonable and logical to draw any inference from which you can determine whether bullets were fired at the car or bullets were fired from within the car. You take all the circumstances, together with any other testimony bearing on those, and that would have to do with someone’s testimony that the girl, Colleen [Bachard], saw nobody get out of the car. And the boy [Brian Puffen] on the floor, after the shots were fired—if you believe him—he went down on the floor, he said that no one got out of the car. And when inquired, did they have a gun in the car, he said no. So you have to examine all of that. Whether you believe it’s no is all right. You can accept or reject, but you can’t find from that statement alone that the contrary is true. No. Maria [Perez] says there was a gun in the car and that the driver was out firing across the hood of the car. So you put everything in perspective and determine what is reasonable and logical." (Emphasis added.)

       The defendant argues that the instruction is improper because it effectively allows the state to establish an assertion solely through the jury’s belief in its witness’ testimony, while preventing the defendant from establishing a contrary assertion solely through the jury’s disbelief in a witness’ testimony. Because the rule applies equally to the state as well as to the defendant, the defendant fails to clarify how the alleged instructional error infringes on his constitutional rights. Essentially, the defendant’s only argument is that we should overrule established precedent.


text:
    STATE OF CONNECTICUT v. VAN SNYDER
    (AC 16898)
    Lavery, Schaller and Spear, Js.

      Argued May 5
    officially released August 4, 1998

      John M. Gesmonde, for the appellant (defendant).

      Rita M. Shair, assistant state’s attorney, with whom were John A. Connelly, state’s attorney, and, on the brief, Robin Lip sky, assistant state’s attorney, and Holly Trexler, legal intern, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, Van Snyder, appeals from the judgment of conviction, following the denial of his motion to dismiss and the entry of a nolo contendere plea, of harassment in the second degree in violation of General Statutes § 53a-183 (a) (2). On appeal, the defendant claims that the trial court improperly denied his motion to dismiss because § 53a-183 (a) (2) is over-broad, unconstitutionally vague on its face and unconstitutionally vague as applied to the defendant.

In addition to harassment in the second degree, the defendant was charged with disorderly conduct in violation of General Statutes § 53a-182 (a) (2). The defendant filed a motion to dismiss all counts, arguing that the statutes defining the two offenses were facially vague and overbroad and, in the alternative, that the informations failed to charge an offense. The court granted the defendant’s motion to dismiss the disorderly conduct counts on the basis of State v. Indrisano, 228 Conn. 795, 640 A.2d 986 (1994), and granted the defendant’s motion to dismiss the harassment counts on the basis that the informations failed to charge an offense. The state was granted permission to appeal from the trial court’s decision dismissing the harassment counts, pursuant to General Statutes § 54-96.

This court reversed the trial court’s decision. State v. Snyder, 40 Conn. App. 544, 672 A.2d 535, cert. denied, 237 Conn. 921, 676 A.2d 1375 (1996). The issue on appeal was “whether § 53a-183 (a) (2) requires the state to prove that a defendant, with the intent to harass, annoy or alarm another person, directly communicated with that person, or whether the state may also prove a violation of that statute where it demonstrates that a defendant, with the intent to harass, annoy or alarm another person, communicated with a third party.” Id., 550-51. This court concluded that the statute “is not ambiguous and that it applies to a person who, with the intent to harass a victim, communicates with a third party by mail in an effort to cause such harassment”; id., 551; and that the trial court improperly interpreted the statute.

On remand, the defendant reclaimed his motion to dismiss based on constitutional grounds. The trial court denied the motion. The defendant then entered a plea of nolo contendere conditioned on the right to appeal from the adverse determination on the motion to dismiss. This appeal followed.

This court in State v. Snyder, supra, 40 Conn. App. 544, relied on the following facts. “In April, 1993, Joseph Sullivan, the acting superintendent of public schools in Waterbury, and Charles Joy, the assistant superintendent for instruction, were jointly involved in the suspension of the defendant from duty for one week. The defendant was the principal of Crosby High School.

“Commencing in July, 1993, Sullivan, Joy, and Foster Crawford, the assistant superintendent for special education, began receiving by mail magazine subscriptions to which they had not subscribed and packages of merchandise and services that they had not ordered. For example, Joy received dozens of videocassettes, audio discs, music cassettes, and collector plates and cards. Joy estimated that as of October, 1993, he had received over 500 pieces of mail and merchandise valued at approximately $5620.

“All three of the victims had been billed for these unsolicited items and had received second and third notices from billing services. In these past due notices, the billing agencies threatened that they would take aggressive collection action if the outstanding bills were not paid. The notices caused the victims to believe that such action would have an adverse effect on their credit standings.

“Additionally, Sullivan, Joy and Crawford had spent a considerable amount of time making telephone calls and mailing numerous forms and letters in attempts to cancel unwanted magazine subscriptions, and to stem the tide of unordered and unwanted merchandise and services. Joy changed his telephone number in an effort to stop solicitors from calling at all hours of the day and night.

“On September 8,1993, Joy attended a meeting in the defendant’s office at Crosby High School. Joy wanted to take notes at the meeting and picked up a notepad from the defendant’s desk. Joy noticed that the pad had an imprint of his name and home address. On September 15, 1993, Joy again attended a meeting at Crosby High School and, while he was using the telephone in the defendant’s office, he saw ten or twelve subscription forms protruding from the defendant’s desk drawer.

“On September 21, 1993, Joy received a telephone call from a person claiming that Joy was registered for a particular seminar. Joy asked the caller to send him the original registration card and the envelope in which it had been mailed, and the caller did so. When Joy received the registration materials, he compared the handwriting on the materials with the handwriting on certain documents that the defendant had prepared and signed. Joy concluded that the handwriting on the registration materials was veiy similar to that of the defendant. Joy also recognized that the postage on the registration envelope was from a postage meter at 236 Grand Street, the building where Joy’s office was located.

“On October 8, 1993, Joy intercepted the mail from the Crosby High School mailbag and noticed a subscription card with his name and address listed as the subscriber. Joy asked a secretary to examine the contents of the mailbag, and the secretary found six pieces of mail similar to the one that Joy had discovered.

“The false subscription cards and known samples of the defendant’s handwriting were submitted to the state forensic laboratory for handwriting comparison. The examiner concluded that the cards and the known samples were written by the defendant.

“On October 21, 1993, pursuant to a warrant, the police searched the defendant’s office at Crosby High School. The items seized included thirty-one assorted mail orders and requests for magazine subscriptions and a box containing over 510 homemade address labels. Among the addresses printed on the labels were those of Joy’s residence, Sullivan’s residence and Crawford’s residence and office. Over 300 of the labels contained the residential address of Guy DiBiasio, a former superintendent of public schools in Waterbury. The police also found three order forms containing the Waterbury address of Robert Rousseau, Karen Rousseau and James Wigglesworth.

“During the search, the defendant told the police that he had been subjected to harassment by the school officials who had suspended him, and, that for this reason, he was ordering subscriptions to be sent to the officials. The defendant also stated that he was having problems with a student, and that he had a confrontation with the student’s father. Because the defendant was upset with this student and his father, he began ordering magazine subscriptions to be sent to the student’s home.

“Approximately one month after the search of the defendant’s office, Robert Rousseau and Karen Rousseau reported to the police that they had been involved in a verbal confrontation with the defendant and that, thereafter, they had begun to receive numerous items of unsolicited mail. Karen Rousseau stated that the argument with the defendant pertained to Wigglesworth, her son. According to Karen Rousseau, one unwanted item sent to her home was a gift allegedly from Joy to Wigglesworth, an item that Joy claims he did not send.

“Also subsequent to the search of the defendant’s office, DiBiasio filed a complaint with the police, claiming that he had been receiving hundreds of unsolicited mail subscriptions at his residence. DiBiasio reported that while he was superintendent, he had disciplined the defendant for a violation of school policies.” Id., 546-49.

I

The defendant argues that § 53a-183 (a) (2) is unconstitutionally overbroad. We disagree.

“The essence of an overbreadth challenge is that a statute that proscribes certain conduct, even though it may have some permissible applications, sweeps within its proscription conduct protected by the first amendment. Secretary of State v. J. H. Munson Co., 467 U.S. 947, 968, 104 S. Ct. 2839, 81 L. Ed. 2d 786 (1984); Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798-801, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984); Husti v. Zuckerman Property Enterprises, Ltd., 199 Conn. 575, 587, 508 A.2d 735, appeal dismissed, 479 U.S. 802, 107 S. Ct. 43, 93 L. Ed. 2d 6 (1986). Overbroad statutes, like vague ones, inhibit the exercise of constitutionally protected conduct. . . . A party has standing to raise an overbreadth claim, however, only if there [is] a realistic danger that the statute will significantly compromise recognized First Amendment protections of parties not before the Court . . . .” (Citation omitted; internal quotation marks omitted.) State v. Rivera, 30 Conn. App. 224, 229-30, 619 A.2d 1146, cert. denied, 225 Conn. 913, 623 A.2d 1024 (1993). In Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973), the Supreme Court stated that “where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.”

In State v. Anonymous (1978-4), 34 Conn. Sup. 689, 389 A.2d 1270 (1978), the Appellate Session of the Superior Court rejected a claim that General Statutes § 53a-183 (a) (3) was overbroad. “Where the means of communication involves an intrusion upon privacy, the right of free expression must be balanced against the right to be let alone. ... A telephone is not a public forum where, in vindication of our liberties, unreceptive listeners need be exposed to the onslaught of repugnant ideas. . . . The overbreadth principle is not violated by the unrestricted scope of the messages which the statute may ban because it is the manner and means employed to communicate them which is the subject of the prohibition rather than their content. The statute is not flawed because a recital on the telephone of the most sublime prayer with the intention and effect of harassing the listener would fall within its ban as readily as the most scurrilous epithet. The prohibition is against purposeful harassment by means of a device readily susceptible to abuse as a constant trespasser upon our privacy.” (Citations omitted; emphasis added.) Id., 696.

In Gormley v. Director, Connecticut State Dept. of Probation, 632 F.2d 938 (2d Cir.), cert. denied, 449 U.S. 1023, 101 S. Ct. 591, 66 L. Ed. 2d 485 (1985), the United States Court of Appeals for the Second Circuit upheld the decision in State v. Anonymous (1978-4), supra, 34 Conn. Sup. 689. In a habeas corpus action, the defendant repeated her claim that § 53a-183 (a) (3) was unconstitutionally overbroad. The Second Circuit concluded that “[c]learly the Connecticut statute regulates conduct, not mere speech. What is proscribed is the making of a telephone call, with the requisite intent and in the specified manner.” (Emphasis in original.) Gormley v. Director, Connecticut State Dept. of Probation, supra, 941-42. The court further concluded that “[t]he asserted overbreadth of the Connecticut statute is circumscribed by the elements of the offense it proscribes. To run afoul of the statute, a telephone call must be made not merely to communicate, but ‘with intent to harass, annoy or alarm’ and ‘in a manner likely to cause annoyance or alarm.’ Whether speech actually occurs is irrelevant, since the statute proscribes conduct, whether or not a conversation actually ensues. United States v. Lampley, [573 F.2d 783, 787 (3d Cir. 1978)].” Id., 942.

We adopt the reasoning of the courts in Gormley and Anonymous, and conclude that § 53a-183 (a) (2) is not unconstitutionally overbroad. Section 53a-183 (a) (2) prohibits purposeful harassment by means of the mail, which is readily susceptible to abusive trespass on one’s privacy. Since the statute proscribes conduct rather than the content of the mailings, the risk that the statute will chill the exercise of free speech is minor compared with the unfortunately prevalent misuse of the postal system to harass others and invade their privacy. Thus, because this statute prohibits intentional harassment by means of the mail and does not seek to regulate the content of such mailings, we hold that first amendment freedoms are not involved and the statute is not unconstitutionally overbroad.

II

“The purpose of the vagueness doctrine is twofold. The doctrine requires statutes to provide fair notice of the conduct to which they pertain and to establish minimum guidelines to govern law enforcement. The United States Supreme Court has set forth standards for evaluating vagueness. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. ... [A] law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law. . . .

“Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc basis and subjective basis, with the attendant dangers of arbitrary and discriminatory applications. . . . Therefore, a legislature [must] establish minimal guidelines to govern law enforcement. . . .

“Third, but related, where a vague statute abut[s] upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of [those] freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful . . . than if the boundaries of the forbidden areas were clearly marked.” (Citations omitted; internal quotation marks omitted.) State v. Indrisano, supra, 228 Conn. 802-803.

“In a facial vagueness challenge, we also examine the challenged statute to see if it is impermissibly vague in all of its applications. A statute that is impermissibly vague in all its applications is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. . . . Such a provision simply has no core. ... A statute may, however, have an unmistakable core meaning of prohibited conduct but, nonetheless, be vague in some of its applications. A defendant whose conduct clearly comes within a statute’s unmistakable core of prohibited conduct may not raise a facial vagueness challenge to the statute.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 804.

“Further, in evaluating the defendant’s challenge to the constitutionality of the statute, we read the statute narrowly in order to save its constitutionality, rather than broadly in order to destroy it. We will indulge in every presumption in favor of the statute’s constitutionality . . . . In so doing, we take into account any prior interpretations that this court, our Appellate Court and the Appellate Session of the Superior Court have placed on the statute.” (Citations omitted; internal quotation marks omitted.) Id., 805. “The rule of federal vagueness jurisprudence is that prior judicial decisions interpreting a state statute are authoritative if they are decisions of a court of statewide jurisdiction, the decisions of which are binding upon all trial courts in the absence of a conflicting decision of the [state] Supreme Court . . . .” (Internal quotation marks omitted.) Id., 805 n.6.

“In our assessment of whether the statute passes constitutional muster, we proceed from the well recognized jurisprudential principle that ‘ [t]he party attacking a validly enacted statute . . . bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute’s constitutionality.’ ” State v. Ross, 230 Conn. 183, 236, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995).

In examining the facts and circumstances of the defendant’s void for vagueness claim, “our fundamental inquiry is whether a person of ordinary intelligence would comprehend that the defendant’s acts were prohibited under [§ 53a-183 (a) (2)].” State v. Payne, 240 Conn. 766, 778, 695 A.2d 525 (1997).

Section 53a-183 (a) provides in relevant part: “A person is guilty of harassment in the second degree when ... (2) with intent to harass, annoy or alarm another person, he communicates with a person by telegraph or mail, by electronically transmitting a facsimile through connection with a telephone network, by computer network, as defined in section 53a-250, or by any other form of written communication, in a manner likely to cause annoyance or alarm . . . .”

The defendant argues, citing State v. Indrisano, supra, 228 Conn. 795, that the statute is unconstitutionally vague because the terms “annoyance” and “alarm” are undefined. We do not agree.

The defendant has limited his argument solely to the conduct portion of § 53a-183 (a) (2) and relies on our Supreme Court’s decision in Indrisano. In Indrisano, our Supreme Court held that the conduct portion of § 53a-182 (a) (2) was impermissibly vague on its face because the language of subdivision (2), “by offensive or disorderly conduct, annoys or interferes with another person,” failed to specify a standard of conduct. The court concluded that “[b]ecause the Supreme Court of the United States has held that the term ‘annoying,’ when used to proscribe conduct, is unconstitutionally vague, we are bound as a matter of federal due process to conclude that the term ‘annoy’ as used in § 53a-182 (a) (2) is similarly vague.” Id., 816.

The defendant argues that because the conduct portion of the harassment statute, § 53a-183 (a) (2), with which he was charged contains the term “annoyance,” the statute is unconstitutionally vague in light of Indrisano and Coates v. Cincinnati, 402 U.S. 611, 91 S. Ct. 1686, 29 L. Ed. 2d 214 (1971).

“In light of our Supreme Court’s decision in Indrisano, our analysis does not end here. Unlike the disorderly conduct statute in Indrisano, judicial gloss has been applied to the language of § 53a-183 (a) [(2)]. We have previously examined the statutory language of § 53a-183 (a) [(2)]. See State v. Snyder, [supra, 40 Conn. App. 544]; State v. Lewtan, 5 Conn. App. 79, 497 A.2d 60 (1985); State v. Bellamy, 4 Conn. App. 520, 495 A.2d 724 (1985). Although we did not address the issue of vagueness in those cases, we have determined that the language, ‘in a manner likely to cause annoyance or alarm,' is not ambiguous. See State v. Snyder, supra, 551. ‘Our adoption of this interpretive gloss provides a sufficient core of meaning to remedy any facial vagueness that might otherwise exist.’ State v. Dyson, 238 Conn. 784, 799, 680 A.2d 1306 (1996).” (Emphasis added.)State v. Cummings, 46 Conn. App. 661, 673-74, 701 A.2d 663, cert. denied, 243 Conn. 940, 702 A.2d 645 (1997). We therefore conclude that § 53a-183 (a) (2) is not unconstitutionally vague on its face.

When applied to the defendant’s conduct in this case, the statute is also not unconstitutionally vague. The defendant argues that his behavior and conduct in communicating with vendors for the purpose of having items sent to others does not fit within the criminal conduct proscribed by § 53a-183 (a) (2). The state argues that the defendant clearly intended to harass the victims by means of the mail to communicate some message or information to the victims. Further, the means by which the defendant executed his plan further indicates that his sole puipose was to harass by ordering multiple mailings to be sent to the victims. We agree with the state’s arguments.

We conclude that a person of ordinary intelligence would have fair warning that the outrageous conduct of sending unsolicited magazine subscriptions, videocassettes, audio discs, music cassettes, collector plates and cards, and seminar enrollments to victims through the mail in retaliation for perceived harassment would constitute a violation of the statute. As this court has already determined, the fact that the defendant, with the intent to harass the victims, communicated with third parties initiating the sending of the aforementioned mail does not defeat the statutes’ applicability. Furthermore, the defendant has failed to make a plausible argument, nor can we conceive of one, that he acted in reliance on the belief that his conduct was lawful or that a person of ordinary intelligence would have no reason to know that he was engaging in prohibited conduct. See State v. Payne, supra, 240 Conn. 779; State v. Cummings, supra, 46 Conn. App. 674.

We are unpersuaded that the defendant has met his heavy burden of proving that § 53a-183 (a) (2), as applied to the circumstances of this case, is unconstitutionally void for vagueness and conclude that the statute is not unconstitutionally void for vagueness.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plea of nolo contendere was entered conditional on the right to appeal pursuant to General Statutes § 54-94a and Practice Book (1998 Rev.) § 61-6, formerly § 4003.

       General Statutes § 53a-183 (a) provides in relevant part: “A person is guilty of harassment in the second degree when ... (2) with intent to harass, annoy or alarm another person, he communicates with a person by telegraph or mail, by electronically transmitting a facsimile through connection with a telephone network, by computer network, as defined in section 53a-250, or by any other form of written communication, in a manner likely to cause annoyance or alarm . . . .”

       Because the trial court did not reach the constitutional issues raised by the defendant in his motion to dismiss, this court did not address them in the appeal. State v. Snyder, supra, 40 Conn. App. 550 n.8.

       The only difference between subdivisions (2) and (3) of § 53a-183 (a) is that subdivision (2) involves written communications and subdivision (3) involves communication by telephone.