author: Lavery, J.

text:
    State of Connecticut v. Donald Fields
    (10978)
    Lavery, Landau and Heiman, Js.

      Argued January 8
    decision released May 18, 1993

      Ramona S. Carlow, special public defender, for the appellant (defendant).

      Maureen M. Keegan, assistant state’s attorney, with whom, on the brief, was John A. Connelly, state’s attorney, for the appellee (state).
   Lavery, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), assault of a victim sixty or older in the third degree in violation of General Statutes § 53a-61a, and unlawful restraint in the first degree in violation of General Statutes § 53a-95. The defendant was also charged with and acquitted of larceny in the second degree in violation of General Statutes § 53a-123 (a) (3), and larceny in the fourth degree in violation of General Statutes § 53a-125 (a). The defendant claims that the trial court improperly (1) denied his motion to suppress the victim’s out-of-court identification of the defendant and subsequent in-court identification of the defendant, (2) denied his motion to suppress evidence seized during the search of his apartment, (3) denied his motion to suppress his statement to the police, (4) denied his motion for acquittal because the state did not present sufficient evidence to sustain conviction on the charge of burglary in the first degree, and (5) denied his motion for acquittal because the state did not present sufficient evidence to sustain conviction on the charge of unlawful restraint in the first degree. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On November 23,1990, the victim, a sixty-eight year old woman, was awakened in her Waterbury house at approximately 7:30 a.m. by a loud noise. When she heard the shelves in the hallway outside her bedroom being knocked over, she turned over in her bed to see what had caused the noise. The victim saw a heavyset African-American man in her hallway, who appeared to be in his late twenties and whom she later identified as the defendant.

When the victim asked the defendant what he was doing in her house, he responded, “I’ll show you what I’m doing here.” The defendant approached the victim, put his arms around her, turned her around, pushed her into the mattress and against the headboard of the bed and choked her until she lost consciousness.

When the victim regained consciousness, she was initially disoriented. She eventually determined that she was in the closet in her bedroom, and that clothing and bed linens had been thrown on top of her. Unable to open the closet door, she attempted, in vain, to knock a hole in the door with a shoe, and cried out for help. The victim ultimately was able to fit her hand and arm through an opening between the closet door and frame, and to manipulate a chair that was propped up against the door until it fell. She was then able to open the door. Upon escaping from the closet, the victim saw that a cedar chest, normally kept at the foot of her bed, had been moved against the kitchen chair that had been blocking the closet door.

The victim immediately contacted the police. She found her purse, which she normally kept in a hamper, on the kitchen floor. Missing from her purse was $600. She also noticed that the earrings she had been wearing were missing.

The first officer on the scene, Arthur Denze of the Waterbury police department, arrived at approximately 12:45 p.m. Denze observed that the victim was visibly shaken and had marks on her face and neck consistent with her claim of having been assaulted. After surveying the scene, Denze concluded that forcible entry of the house had occurred through the back door. The victim gave the officer a physical description of her assailant, and also described the items that had been taken. Denze summoned an ambulance to take the victim to the hospital. Denze also contacted the detective bureau of the Waterbury police department. Shortly after Denze placed the call, and after the victim had been taken to the hospital, Detective John Maia arrived.

Denze showed Maia around the house. Maia agreed with Denze that the only point of entry was the forced entry through the back door. Denze relayed to Maia the description of the perpetrator that the victim had given. Maia then called Sergeant John Augelli, and furnished information about the scene and what had transpired. On the basis of his conversation with Maia, Augelli and another detective, Joseph Pesce, went to find the defendant for questioning.

At approximately 2 p.m., Detective Martin Mancinelli arrived to process the crime scene. Mancinelli dusted the house for latent fingerprints and took photographs. He observed that forced entry to the house had been gained through either kicking or pushing the back door. Mancinelli dusted the top of the cedar chest, which had been placed in front of the closet door, for latent fingerprints. Although no latent fingerprints were found on the chest, a footwear impression was found. Man-cinelli brought the top of the cedar chest to the police department and turned it over to the director of the forensic laboratory.

After returning to the detective bureau with Man-cinelli, Maia proceeded to St. Mary’s Hospital to check on the victim’s condition. Maia observed that, although the victim had bruises on her face and arms, she was fully alert and responsive. Maia asked the victim if she would be able to identify her assailant, and she responded that she could. Maia returned to the detective bureau and prepared a photographic array of nine African-American males, including the defendant.

Maia went back to the hospital and showed the array to the victim. The victim studied each photograph, and, within a matter of seconds, selected the defendant as the man who had broken into her house and assaulted her that morning.

In the meantime, Augelli and Pesce were attempting to contact the defendant for questioning. They first went to the defendant’s place of employment, but were told that the defendant had not reported for work. The officers went to the defendant’s residence, which was one-half mile from the defendant’s apartment. Pesce went to the front door, and Augelli went to the back. When Pesce knocked on the front door, the defendant tried to leave by the back and encountered Augelli. The defendant agreed to go to the detective bureau with the officers.

At the detective bureau, after being apprised of his constitutional rights, the defendant denied knowledge of and involvement in the burglary of the victim’s house. The defendant was asked if he would consent to a search of his apartment for evidence related to the burglary. After the consent form was explained to him, the defendant read and signed the form. Pesce also signed the form.

Prior to Augelli’s leaving the bureau to return to the defendant’s house to conduct the consensual search, Mancinelli arrived at the bureau with the top of the cedar chest. Augelli observed that a Jordache sneaker had made the visible print on the chest. Augelli looked at the sneakers the defendant was wearing, and determined that those sneakers could not have made the print.

Pesce, Augelli and the defendant returned to the defendant’s apartment. Pesce searched the second floor, while Augelli searched the first floor. While none of the items stolen from the victim was found during the search, a pair of black, well-worn Jordache sneakers were found in a first floor closet.

The defendant, his girl friend, and the officers returned to the bureau. The defendant was interviewed by Lieutenant Robert Deely. After again being advised of and waiving his constitutional rights, the defendant gave a statement to the police detailing his involvement in the burglary and assault. The defendant admitted entering the victim’s house, assaulting her, barricading her in the closet and looking through drawers in her house.

The Jordache sneakers, seized during the search of the defendant’s apartment, were turned over to James McDonald, director of the Waterbury police forensic lab. McDonald concluded that the print on the cedar chest top was made by one of the defendant’s sneakers seized during the search of his apartment, and testified to that effect at trial.

At trial, the defendant testified on his own behalf. He claimed that, contrary to the evidence presented by the state’s witnesses, he did not burglarize the victim’s house and assault the victim on the morning of November 23, 1990. The defendant testified that he awoke after 8 a.m. that day and made coffee. He then walked to a restaurant and ordered a carryout breakfast and went to a convenience store. After eating breakfast at home, he decided to rent some films. On his way home from the video store, he called Domino’s Pizza and ordered a pizza. The defendant said he went home to watch the films, and that the pizza arrived at approximately 12:30 p.m.

The defendant stated that he was not advised of his rights at the police station, and did not consent to a search of his apartment. He also claimed that he did not give an inculpatory statement to the police, but rather denied involvement in the burglary, and signed two blank sheets of paper that he was told would be filled in with his statement of denial.

I

The defendant’s first claim is that the trial court improperly denied his motions to suppress the victim’s out-of-court and in-court identifications of him as the perpetrator of the burglary and assault. The defendant claims that the court’s denial of his motion to suppress deprived him of his right to due process under both the United States and Connecticut constitutions. We disagree with this claim.

Upon review of a trial court’s denial of a motion to suppress, “[t]he court’s conclusions will not be disturbed unless they are legally and logically inconsistent with the facts. State v. Cofield, 220 Conn. 38, 44, 595 A.2d 1349 (1991).” (Internal quotation marks omitted.) State v. MacNeil, 28 Conn. App. 508, 512-13, 613 A.2d 296, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992). The trial court’s “factual findings will be reversed only if they are clearly erroneous. State v. Jones, 193 Conn. 70, 79-80, 475 A.2d 1087 (1984); State v. Zindros, 189 Conn. 228, 244, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984).” State v. MacNeil, supra, 513. Our review of the trial court’s action “involves a two part procedure. First, where the court’s legal conclusions are challenged, we must decide if they are legally and logically correct, and if they are supported by the facts set forth in the memorandum of decision. State v. Zindros, supra, 238. Second, if the factual basis of the court’s decision is challenged, we must determine whether the facts in the memorandum are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. Id.” State v. MacNeil, supra.

The defendant claims that the photographic array from which the victim identified the defendant was unnecessarily suggestive, and its use abridged his due process rights. The defendant properly points out that the “due process clause of the fourteenth amendment to the United States constitution requires the exclusion of identification evidence — including, as here, an in-court identification and testimony concerning a pretrial photographic identification — when the identification procedure used was so impermissibly suggestive as to give rise to a very substantial likelihood of an irreparable misidentification. Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968) . . . .” (Citation omitted; internal quotation marks omitted.) State v. Biggs, 13 Conn. App. 12, 17, 534 A.2d 1217 (1987), cert. denied, 207 Conn. 801, 540 A.2d 73 (1988).

“[I]n determining whether identification procedures violate a defendant’s due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive, and second, if it is found to be so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. State v. Ramsundar, 204 Conn. 4, 10, 526 A.2d 1311, [cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374] (1987) . . . .” (Internal quotation marks omitted.) State v. Pollitt, 205 Conn. 132, 162, 531 A.2d 125 (1987). A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure. “To prevail in his claim the defendant must demonstrate that the trial court erred in both of its determinations regarding suggestiveness and reliability of identifications in the totality of the circumstances. . . . State v. Mayette, 204 Conn. 571, 581, 529 A.2d 673 (1987).” (Emphasis in original; internal quotation marks omitted.) State v. Pollitt, supra.

The defendant claims that the pretrial photographic identification procedure used in this case was unnecessarily suggestive because the color intensity of the defendant’s photograph is different from that of the other photographs, the defendant’s face is more prominent in his photograph than the faces in the other photographs, the defendant’s photograph was placed in the first position (the upper left hand corner of the card), and only one other man in the array, according to the defendant, could be described as heavyset or big. The defendant concedes that differences in color intensity and prominence of the defendant’s face do not render an array unnecessarily suggestive. State v. Boscarino, 204 Conn. 714, 727, 529 A.2d 1260 (1987); State v. McKnight, 191 Conn. 564, 571-73, 469 A.2d 397 (1983). The defendant, claims, however, that the color intensity and facial prominence of the defendant’s photograph, combined with the position of the photograph and the alleged difference between his build and age and those of the men in seven of the remaining photographs, make the identification procedure unnecessarily suggestive.

In support of his position that seven of the eight remaining photographs in the array could be eliminated on the basis of the age and build of the men depicted, the defendant relies on State v. Small, 1 Conn. App. 584, 474 A.2d 460 (1984). In that case, we held that a photographic array was unnecessarily suggestive, when seven of the eight photographs could be eliminated because three photographs had names on them other than that by which the witness knew the defendant, two of the photographs depicted persons substantially younger than the defendant, and two of the photographs depicted individuals much heavier than the defendant. Id., 587-88. The present case is clearly distinguishable from Small. Here, the trial court articulated its decision on the motions to suppress. With respect to the photographic array, the trial court stated: “I’ve seen the array and I find that the pictures . . . do substantially represent a black male of the age of thirty-one and do look sufficiently like each other so as not to be overly suggestive.” The trial court noted that it was familiar with the factors it must consider when weighing identification evidence as set forth in Manson v. Braithwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). In addition to its finding that the photographic array was not overly suggestive, the trial court reviewed the identification process. The court concluded: “There’s nothing to show that Detective Maia guided [the victim’s] choice in any way whatever, and since I found that the photo is not overly suggestive, I don’t have to go further, but I do find from her statement that she chose that photo because she remembered what her assailant looked like, that it’s reliable, and this meets both prongs of Manson v. Braithwaite [supra].” It is clear that the trial court carefully reviewed the evidence in question and correctly determined that it was not unnecessarily suggestive. It is also clear from the record that the trial court carefully reviewed the identification process, and found that it met constitutional standards. After careful review of the record and the trial court’s findings, we conclude that the trial court properly denied the defendant’s motion to suppress the victim’s pretrial identification of the defendant.

The defendant further claims that the trial court should have suppressed the victim’s in-court identification of the defendant because that identification was tainted by the previous, allegedly flawed pretrial identification that we have discussed. Because that identification process was proper and not unnecessarily suggestive, the defendant’s claim that the victim’s in-court identification was tainted and should have been suppressed is without merit. Since the initial identification of the defendant was not the result of a suggestive identification procedure, there was no constitutional infirmity in the identification process. See State v. Miller, 202 Conn. 463, 474, 522 A.2d 249 (1987). We therefore conclude that the trial court properly denied the defendant’s motion to suppress the victim’s in-court identification.

II

The defendant next claims that the trial court improperly denied his motion to suppress a pair of his sneakers as tangible evidence because the sneakers were beyond the scope of the defendant’s consent to search. We disagree.

The following facts are pertinent to the resolution of this issue. Investigation of the burglary of the victim’s house on the morning of November 23,1990, led the Waterbury police to the defendant’s apartment. When police officers encountered the defendant, he agreed to go to the police station with them. The defendant denied any involvement in the burglary. Sergeant Augelli asked the defendant if he would consent to a search of his apartment. Augelli explained to the defendant that, if he chose not to consent, the police would have to obtain a search warrant. Augelli showed the defendant a consent form and explained its significance. Augelli informed the defendant that the detectives would be searching for jewelry, money and a pair of sneakers. After the consent form was completed, Augelli read the form aloud, explained it to the defendant and asked him to read it. The defendant read the form and then signed it.

The defendant testified at the suppression hearing that he gave neither oral nor written consent for the search. On appeal, the defendant maintains that he never gave oral or written consent to the police, and, because the consent form is missing, there is no way for this court to review the details of that form.

After both sides had presented their evidence in the suppression hearing, the trial court specifically found that the defendant and his girl friend (now wife) consented to the search of the apartment, and did not limit the areas to be searched.

One of the most fundamental propositions of our criminal jurisprudence “is that ‘searches and seizures inside a home without a warrant are presumptively unreasonable.’ ” State v. MacNeil, supra, quoting Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); State v. Guertin, 190 Conn. 440, 446, 461 A.2d 963 (1983). “A warrantless search or entry into a house is not unreasonable, however, under the fourth amendment to the United States constitution . . . when a person with authority to do so has freely consented. State v. Reagan, 209 Conn. 1, 7, 546 A.2d 839 (1988). It is the state’s burden to prove that the consent was freely and voluntarily given, and that the person who purported to consent had authority to do so. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968); State v. Reagan, supra. Such consent may not be established by mere acquiescence to police authority. State v. Jones, [193 Conn. 70, 79, 475 A.2d 1087 (1984)].” State v. MacNeil, supra.

“[W]hether consent was freely and voluntarily given, or was the product of coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. State v. Reagan, supra, 7-8, quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). [The issue of consent] is to be decided by the trial court on the basis of the evidence before it that it finds credible, along with the reasonable inferences that may be drawn from that evidence. State v. Reagan, supra, 8; Dotson v. Warden, 175 Conn. 614, 619, 402 A.2d 790 (1978). The ultimate question is whether the will of the consenting individual was overborne, or whether the consent was his unconstrained choice.” (Internal quotation marks omitted.) State v. MacNeil, supra, 514.

The trial court made specific findings regarding the defendant’s and his girl friend’s consent to search their apartment. The trial court credited the testimony of Augelli, who testified that the defendant had signed a consent form after careful consideration of its contents. Where, as here, there is conflicting testimony, we must be mindful that it is uniquely the function of the trier of facts to weigh the evidence and assess the credibility of witnesses. Id. The trial court also correctly stated that a consent to search does not have to be in writing to be valid. Our careful review of the record and the trial court’s findings leads us to conclude that the trial court properly denied the defendant’s motion to suppress the sneakers as tangible evidence.

III

The defendant claims that the trial court improperly failed to exclude from evidence the defendant’s statement to the police. He argues that the statement was the result of improper police conduct in allegedly illegally seizing the defendant’s sneakers.

In presenting this claim, the defendant relies on the exclusionary rule, barring the admission of illegally obtained evidence. We have concluded that the trial court properly ruled that the police searched the defendant’s apartment and seized the defendant’s sneakers with the defendant’s freely given consent. In doing so we concluded that the consensual search of the defendant’s apartment and the consequent seizure of the defendant’s sneakers complied with the law. In light of these conclusions, the defendant’s claim that the defendant’s later inculpatory sworn statement to the police resulted from police misconduct in obtaining the defendant’s sneakers is without merit.

IV

The defendant next claims that the state failed to present sufficient evidence to sustain the jury’s guilty verdict on the charge of burglary in the first .degree as charged in the substitute information. We disagree.

“This court’s role in evaluating the sufficiency of the evidence in a jury trial is well established. ‘We first construe the evidence presented at trial in a light most favorable to sustaining the verdict, and then determine whether the jury could reasonably have found upon the facts established and the inferences reasonably drawn therefrom, that a cumulative effect of the evidence established guilt beyond a reasonable doubt. . . .’ (Citations omitted; internal quotation marks omitted.)” State v. Baldwin, 224 Conn. 347, 368, 618 A.2d 513 (1993). Reasonable and logical inferences may be drawn, but the jury may not resort to speculation and conjecture. State v. King, 216 Conn. 585, 601, 583 A.2d 896 (1990). Each essential element of the crime must be proved beyond a reasonable doubt. Id.

The defendant claims specifically that the state failed to prove that the defendant intended to commit larceny when he broke into the victim’s home. In presenting this argument, the defendant points out that the state, in its bill of particulars and substitute information, charged that the defendant entered the victim’s house with the intent to commit larceny. The defendant reasons that because he was acquitted of the larceny counts and because the evidence presented at trial does not, in his view, prove that he intended to commit larceny, the jury erroneously rendered a verdict of guilty on the burglary count, and the trial court improperly denied his motion to acquit.

The defendant was charged with violating General Statutes § 53a-101 (a) (2), which provides in pertinent part: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and ... in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.” The state’s bill of particulars and substitute information charged, in pertinent part, that the defendant “entered and remained unlawfully in a building, to wit, 858 Frost Road, Waterbury, Connecticut, with intent to commit the crime of larceny therein . . . .”

Although the defendant in this case was acquitted of the larceny counts against him, his burglary conviction does not necessarily fail. “Where . . . the claim is that the crime intended to be committed by the burglar was larceny, the fact that there is no actual larceny does not bar a conviction for burglary. State v. Benton, [161 Conn. 404, 411, 288 A.2d 411 (1971)]; see People v. Johnson, 28 Ill. 2d 441, 443, 192 N.E.2d 864 (1963); 12A C.J.S., Burglary § 42. The larceny, if committed, is a separate and distinct offense. State v. Benton, supra; Wilson v. State, 24 Conn. 57, 65 (1855).” State v. Little, 194 Conn. 665, 675-76, 485 A.2d 913 (1984).

Because the defendant in this case was acquitted of the larceny charges against him, we must look to the circumstances surrounding the burglary to determine if the jury could reasonably conclude that the defendant intended to commit larceny when he entered the victim’s house. “Generally, intent can only be proved by circumstantial evidence, and, being a mental state, it is proved by the conduct of that person whose conduct is being scrutinized.” Id., 675, and cases cited therein. In this case, the jury was presented with evidence establishing that the defendant forcibly entered the victim’s house. The defendant, upon being discovered in the house by the victim, assaulted her, rendered her unconscious, and barricaded her in a closet. When she regained consciousness, the victim discovered that money and a pair of earrings were missing. The statement that the defendant gave the police at 6 p.m. was entered into evidence as state’s exhibit N. In that statement, the defendant described how he and a friend decided to “break into a house” on the morning of November 23,1990. The defendant stated that after he and his friend broke in through the back door, his friend went to the front door to act as a lookout. He stated that he and his friend searched the house, and noted specifically that he was “searching and looking through drawers.” The defendant stated that his friend left the house first, and con-eluded that “[i]f anything is missing from the house, it is Andre Stevens who has it because I didn’t get anything.”

“The time, manner and forcible nature of the entry permitted a reasonable inference, based on human experience, that the unlawful entry by the defendant was hardly without purpose, but rather was with the intent to commit a crime therein.” Id. In this case, the state presented the jury with ample evidence for it to conclude reasonably that the defendant entered the victim’s house with the intent to commit larceny.

The defendant’s argument that, because he was acquitted of the separate larceny counts, it necessarily follows that the state failed to present sufficient evidence to convict him of burglary as charged is without merit. Although the defendant has presented this claim in terms of sufficiency of the evidence, the claim is based on the defendant’s assumption that the jury’s acquittal on the larceny charges and conviction on the burglary charge are inconsistent. “The short answer to this claim is that inconsistency of the verdicts is immaterial.” State v. Rosado, 178 Conn. 704, 708-709, 425 A.2d 108 (1979); Hamling v. United States, 418 U.S. 87, 101, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974); Dunn v. United States, 284 U.S. 390, 393-94, 52 S. Ct. 189, 76 L. Ed. 356 (1932); State v. Manning, 162 Conn. 112, 122, 291 A.2d 750 (1971).

V

The defendant’s final claim is that the state presented insufficient evidence to convict him of unlawful restraint in the first degree. The defendant claims that the state failed to prove beyond a reasonable doubt that the defendant exposed the victim to a substantial risk of physical injury as required for conviction under General Statutes § 53a-95 (a) by confining her in the bedroom closet. We disagree, noting that our case law does not limit the period of exposure to injury merely to the confinement, but to the entire the course of restraint. State v. Monk, 198 Conn. 430, 503 A.2d 591 (1986); State v. Parham, 174 Conn. 500, 391 A.2d 148 (1978).

In reviewing this sufficiency of the evidence claim, we rely again on the well settled test that we have described in this opinion. A review of the evidence pertinent to this claim reveals that the victim observed the defendant from her bed and asked him what he was doing in her house. The defendant said, “I’ll show you what I’m doing,” and proceeded to grab the victim and choke her until she lost consciousness. The defendant then placed the unconscious victim on the floor of her closet, covered her with bed linens and other items, and barricaded the closet door with a chair and a cedar chest. More than five hours elapsed from the time the victim lost consciousness until the time she was able to escape from the confines of her closet. The victim suffered bruises and other minor injuries as a result of the assault.

Under General Statutes § 53a-91 (1) restrain means “to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with [her] liberty by moving [her] from one place to another, or by confining [her] either in the place where the restriction commences or in a place to which [she] has been moved, without consent.” Under the circumstances of this case, the defendant’s grabbing and holding the victim and then choking her were actions in furtherance of the restraint that culminated in the defendant’s barricading the victim in the closet.

We conclude that the jury, viewing the entirety of the evidence, could conclude that the victim was exposed to a substantial risk of injury throughout the ordeal. In State v. Monk, supra, 434, our Supreme Court noted that the defendant’s actions satisfied the exposure to substantial risk of physical injury requirement when it was shown that the victim struggled and that the defendant choked her. In that sexual assault case, the jury could have found that had the victim continued to struggle and resist, she might have been seriously injured. Here, the elderly victim was rendered unconscious, and, while unconscious, was placed on the floor of a closet under linen and clothing. “[T]he state [is] not required to prove actual injury, but only that the defendant exposed the victim to substantial risk of physical injury.” Id., 434-35. Our careful review of the record reveals that the state provided the jury with ample evidence to conclude that the defendant, through his actions during the course of the restraint, exposed the victim to a substantial risk of physical injury.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-101 provides in pertinent part: “(a) A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and ... (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.”

       General Statutes § 53a-61a (a) provides: “A person is guilty of assault of a victim sixty or older in the third degree when he commits assault in the third degree under section 53a-61 and the victim of such assault has attained at least sixty years of age or is blind or physically disabled, as defined in section 1-lf.”

       General Statutes § 53a-95 provides: “(a) A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.
      “(b) Unlawful restraint in the first degree is a class D felony.”

       These factors include: “[T]he opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” Manson v. Braithwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).

       The trial court made the following findings orally and in open court with respect to the defendant’s motion to suppress the sneakers as evidence: “Now, the written consent to search has apparently been lost. But the consent to search, as a matter of law, need not be in writing. I chose to believe Sergeant Augelli and I will find that the police returned with the defendant and the consent to search the apartment whereupon they spoke with Miss Wheeler, now Mrs. Fields, and she also gave them consent to search. There’s been no testimony here that Mrs. Field’s consent to search was involuntary. There’s been no testimony that the consent to search was limited to any specific part of the apartment either. The consent that I find was given by Mr. Fields or the consent that Mrs. Fields testified that she gave. The sneakers, therefore, can be admitted into evidence at the trial

       Because a consent to search does not have to be in writing to be valid, the defendant’s claims that this court cannot review any detail that may have been contained in the consent form is without merit. The trial court specifically found that consent had been given, and that the consent was not limited.


source: Caselaw Access Project

author: Schaller, J.

license: Public Domain

text:
    Wilfred Mitchell v. Scott Mitchell et al.
    (11146)
    O’Connell, Landau and Schaller, Js.
    Argued January 7
    decision released May 18, 1993

      Christopher G. Winans, for the appellants (defendants).

      Eric N. Wellman, for the appellee (plaintiff).
   Schaller, J.

The defendants appeal from the judgment, rendered after a court trial, upholding the plaintiffs claim of fraud. The defendants claim that the trial court improperly made legal and factual conclusions that (1) exceeded the scope of the complaint and (2) were unsupported by the evidence and clearly erroneous. We affirm the judgment of the trial court.

The trial court found the following facts. The plaintiff, Wilfred Mitchell, and his deceased wife are the parents of the defendants, Scott Mitchell and Lynda Maggi. The plaintiff and his wife owned the family residence now in dispute as tenants in common. They had lived at this residence since 1959, and the plaintiff had made mortgage payments on the property. On November 26, 1988, the plaintiffs wife died and, by will, devised her undivided one-half interest in the property to the defendants.

On November 29,1988, the plaintiff met with Maggi and her husband at the family residence. Concern was expressed about the plaintiff’s tendency to gamble, his future living plans and his ability to pay bills and expenses. At that time, the plaintiff’s only assets were a bank account and the one-half interest in the house, and his only income was a pension of $1100 per month. In the course of the meeting, Maggi agreed that if the plaintiff transferred his one-half interest in the property to her and her brother, they would reserve the plaintiff a life estate. Mitchell had not attended the meeting but consented to the agreement between Maggi and their father.

Shortly thereafter, Scott Mitchell instructed Attorney Stephen Gallagher to prepare a deed transferring the plaintiffs one-half interest to the defendants, but he failed to tell Gallagher to reserve a life estate for the plaintiff. On December 2, 1988, the plaintiff and Scott Mitchell met at Gallagher’s office, where the plaintiff was induced into signing the deed. He believed that the deed contained the life estate that the defendants had promised him.

At the time the plaintiff signed the deed, Gallagher knew nothing about the prior agreement. He learned of the discussions after the conveyance of the quitclaim deed. The trial court further found that “[o]ne or two days later, Gallagher received another call from Scott discussing with him a ‘lease for life’ for his father to live in the house.” (Emphasis added.)

The plaintiff brought an action alleging fraud and seeking to set aside the conveyance and to recover damages. He claimed that the defendants had made untrue and false representations concerning the reservation of life use of the property, that he had believed those representations, and that he had relied on them when he executed the deed. The trial court found for the plaintiff and rendered judgment setting aside the conveyance to the defendants. In its judgment, the court stated, “[t]he court having heard the parties on January 15 and 16,1992, finds the issues as to the first count in fraud for the plaintiff.” This appeal followed.

I

The defendants first claim that the trial court’s decision exceeded the scope of the complaint. At trial, both parties litigated the issue of actual fraud without pursuing a theory of constructive fraud. In its memorandum of decision, however, the trial court injected the issue of whether the facts supported an action for constructive fraud and concluded that, in fact, the facts did support such a theory.

“The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise. . . . It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations in his complaint. . . . A plaintiff may not allege one cause of action and recover upon another. Facts found but not averred cannot be made the basis for a recovery. ...” (Citations omitted; internal quotation marks omitted.) Sampiere v. Zaretsky, 26 Conn. App. 490, 492, 602 A.2d 1037, cert. denied, 222 Conn. 902, 606 A.2d 1328 (1992).

The burden of proof and the elements necessary in an action for constructive fraud differ markedly from the prerequisites to liability for actual fraud. The breach of a confidential or special relationship forms the basis for liability under the doctrine of constructive fraud. Worobey v. Sibieth, 136 Conn. 352, 71 A.2d 80 (1949); Terry v. Terry, 302 N.C. 77, 83, 273 S.E.2d 674 (1981). The plaintiff must establish the existence of a confidential or special relationship. Dunham v. Dunham, 204 Conn. 303, 322, 528 A.2d 1123 (1987); Worobey v. Sibieth, supra, 359. Once such a relationship is found to exist, the burden shifts to the fiduciary to prove fair dealing by clear and convincing evidence. Dunham v. Dunham, supra, 322-23; Alaimo v. Royer, 188 Conn. 36, 37, 448 A.2d 207 (1982); Worobey v. Sibieth, supra; Oakhill Associates v. D'Amato, 30 Conn. App. 356, 358, 620 A.2d 1294 (1993).

Actual fraud, by contrast, is not established by virtue of a confidential relationship. “Connecticut case law firmly establishes that fraud must be proven by a standard more exacting than a fair preponderance of the evidence.” (Internal quotation marks omitted.) J. Frederick Scholes Agency v. Mitchell, 191 Conn. 353, 358, 464 A.2d 795 (1983). “A claim of fraud must be proven by ‘clear and satisfactory evidence.’ ” Regis v. Connecticut Real Estate Investors Balanced Fund, Inc., 28 Conn. App. 760, 768, 613 A.2d 321, cert. denied, 224 Conn. 907, 615 A.2d 1048 (1992).

In light of these differences, we agree with the defendants that the trial court’s analysis of constructive fraud exceeded the scope of the plaintiff’s cause of action. We are not persuaded, however, that the trial court’s analysis in this regard undermined its ultimate judgment. As previously stated, the trial court veered into a discussion of constructive fraud in its memorandum of decision. Before this departure, however, the court accurately recited the law of actual fraud and the burden of proof. The court also made findings relating to the plaintiff’s claim of fraud. In the final analysis, moreover, the trial court’s judgment expressly accepted the plaintiff’s fraud claim as pleaded in the complaint. Because, in essence, the trial court concluded that the plaintiff proved both actual and constructive fraud, the inappropriateness of the constructive fraud analysis is of no consequence in this case.

II

The more pertinent question is whether the court’s judgment is clearly erroneous. This brings us to the defendants’ second claim on appeal. Practice Book § 4061 provides that “[t]he court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.” “[Wjhere the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged, we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The trial court correctly stated the basic elements of an action for actual fraud. “The elements of a fraud action are: (1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment.” Billington v. Billington, 220 Conn. 212, 217, 595 A.2d 1377 (1991); Maturo v. Gerard, 196 Conn. 584, 494 A.2d 1199 (1985); Paiva v. Vanech Heights Construction Co., 159 Conn. 512, 515, 271 A.2d 69 (1970). “[A] promise to do an act in the future when coupled with a present intent not to fulfill it, is a false representation.” Flaherty v. Schettino, 136 Conn. 222, 226, 70 A.2d 151 (1949). In addition, the trial court properly explained that an action for fraud requires proof by clear and convincing evidence. Alaimo v. Royer, supra, 39.

Against this legal backdrop, the court made factual findings that are fully substantiated by the evidence. First, the court found that Maggi and the plaintiff agreed that he would enjoy life use of the property. The record is replete with evidence substantiating this finding. The plaintiff testified, for example, that Maggi and Mitchell assured him life use in exchange for the transfer of the property.

The circumstances surrounding the procurement of the deed support a reasonable inference of intent to defraud. “[OJrdinarily, intent can only be proved by circumstantial evidence; it may be and usually is inferred from the defendant’s conduct.” (Internal quotation marks omitted.) Kelley v. Bonney, 221 Conn. 549, 583, 606 A.2d 693 (1992). In less than a week, the defendants first agreed to give the plaintiff a life estate in exchange for his interest in the property and then succeeded in effectuating the conveyance via quitclaim deed without any provision for a life estate. Because these arrangements were initiated and acted upon in such a brief period of time, the trial court reasonably could have concluded that the absence of the life estate term was not an innocent omission. Further, Scott had ample opportunity to arrange for a revised deed when he discussed the omission with Gallagher two days after the execution of the deed. Instead, Scott discussed a “lease for life,” a markedly diminished property interest. We conclude that the trial court reasonably could have inferred from the evidence that the defendants intended to defraud the plaintiff.

The court also found that the representations were made under circumstances that induced the plaintiff to rely on them. The plaintiff testified that he would not have signed the deed had the defendants not agreed to reserve him a life estate. The trial court was entitled to credit this testimony and find that the plaintiff relied on the defendants’ representations.

Finally, it is clear that the plaintiff was injured as a result of his reliance on the false representation because the transfer of his property without a life estate would deprive him of his residence. It would be grossly unfair to permit the defendants to retain the property that they acquired by virtue of a material misrepresentation. Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 346, 232 A.2d 307 (1967).

From our review of the entire record, we conclude that the trial court’s findings and conclusions as to actual fraud were amply supported by the evidence and are not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       This discussion also involved a dispute over a bank account that was the substance of the second count of the plaintiffs complaint. In this appeal, the plaintiff has not pursued the trial court’s rejection of his second claim.

       The plaintiff testified that Scott Mitchell had also spoken with him and had recommended the transfer of the plaintiffs one-half interest in the property to him and Maggi. According to the plaintiff’s testimony, Mitchell assured him life use of the property.

       In the first count of the complaint, the plaintiff claimed the following:
      “3. On or about December 2,1988, the Defendants, knowing of the plaintiff’s incapacity, and desiring to take advantage thereof for the purpose of defrauding the plaintiff, procured the Plaintiffs signature to a deed conveying the land to the Defendants.
      “4. The Defendants, knowing the representations to be untrue, falsely represented to the Plaintiff that he would retain a life use in said premises.
      “5. The Plaintiff, because of his grief stricken condition, believed the representations to be true and relying on them executed the deed which failed to contain the life use restriction promised to the Plaintiff . . . .”

       While the court did not explicitly find that Scott Mitchell made representations concerning life use, the court was convinced that he at least had consented to the agreement.


author: Freedman, J.

text:
    Ronald Michel v. Jane Baklik Michel
    (10852)
    Daly, Freedman and Schaller, Js.
    Argued March 23
    decision released May 18, 1993

      David O. Chittick, for the appellant (plaintiff).

      Richard A. Cerrato, for the appellee (defendant).
   Freedman, J.

The plaintiff appeals from the judgment of the trial court in this action for dissolution of marriage. The plaintiff claims that the trial court improperly ordered him to maintain life insurance without any evidence of (1) the availability of such insurance, (2) the cost of such insurance and (3) his insurability. We agree with the plaintiff, reverse the trial court’s financial orders and remand the matter to the trial court for a new trial.

The parties were married on February 28, 1987. There were two minor children issue of the marriage at the time of the dissolution. On November 8, 1991, the trial court issued its memorandum of decision dissolving the marriage. Custody of the minor children was awarded to the defendant with reasonable rights of visitation granted to the plaintiff. The trial court also entered orders regarding property distribution, alimony, child support, medical and dental insurance for the minor children, and other miscellaneous matters. In addition, the plaintiff was ordered to “provide life insurance in the amount of $50,000 with the defendant as irrevocable beneficiary until such time as the youngest child reaches the age of eighteen.”

At the time of the dissolution of the marriage, the plaintiff had no life insurance. Neither party presented any evidence as to the availability of life insurance to the plaintiff, as to the cost of such insurance or as to his insurability. The trial court in its memorandum of decision stated that the defendant had complained of the plaintiffs use of alcohol and cocaine. The trial court further stated in its memorandum of decision that “[b]oth the defendant and the plaintiff complain of health problems but each appears able to do some work.”

“Our standard of review in a domestic relations case is well settled. We will not substitute our judgment for that of the trial court and will not disturb an order of the trial court absent an abuse of discretion or findings lacking a reasonable basis in the facts.” Paddock v. Paddock, 22 Conn. App. 367, 372, 577 A.2d 1087 (1990). Here, the trial court, in its commendable desire to ensure that funds would be available for the support of the defendant and the children in the event of the death of the plaintiff, attempted to make a fund available for that purpose through the vehicle of life insurance. Such an order is very often an appropriate and necessary component of a judgment of dissolution of marriage. Indeed, orders requiring the maintenance of life insurance have been approved on numerous occasions by our courts. See Leo v. Leo, 197 Conn. 1, 495 A.2d 704 (1985); Wolk v. Wolk, 191 Conn. 328, 464 A.2d 780 (1983); Broaca v. Broaca, 181 Conn. 463, 435 A.2d 1016 (1980); Mauro v. Mauro, 16 Conn. App. 680, 548 A.2d 471 (1988); Papageorge v. Papageorge, 12 Conn. App. 596, 533 A.2d 229 (1987). In each of these cases, however, it is important to note that the life insurance policy was in existence at the time of the judgment. The trial court in each of these cases, therefore, had available to it all of the information necessary to craft an appropriate order regarding such insurance. By contrast, in this case, the trial court ordered $50,000 of life insurance without any evidence whatsoever of the cost or the availability of such life insurance to the plaintiff. Without knowing the availability of such insurance, the trial court has entered an order with which the plaintiff may not be able to comply. Without knowing the cost of such insurance, the trial court has entered other financial orders that may be inappropriate, that is, too high or too low depending on the funds required to obtain such insurance. Under these circumstances, we must conclude that the court’s order regarding life insurance lacks a reasonable basis in the facts.

In an unpublished case involving a substantially similar issue, the Court of Appeals of Ohio reversed a judgment of the trial court that required the plaintiff to obtain life insurance where the record was silent as to the insurability of the plaintiff and failed to indicate the cost of such insurance. Dotson v. Dotson, Ohio Court of Appeals, Docket No. H-76-11, March 25, 1977.

Because the financial orders in an action for dissolution of marriage are of necessity interwoven and because the rendering of a judgment in an action for the dissolution of marriage is “a carefully crafted mosaic”; Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984); we must remand the case to the trial court for a new trial on all financial matters. Mulholland v. Mulholland, 26 Conn. App. 585, 590, 602 A.2d 1054 (1992).

The judgment is reversed as to the financial orders only and the case is remanded for a new hearing on all financial issues.

In this opinion the other judges concurred.

       The plaintiff raises several other challenges to the financial orders entered by the trial court and the factual findings underlying those orders. Because we agree with the plaintiff on the issue regarding the order of life insurance and therefore reverse the trial court’s financial orders and remand for a new trial, we need not address these additional issues.

       The parties agreed to these custody and visitation arrangements, which agreement was approved by the trial court.

       We do not mean to imply that a trial court may not order life insurance if it is not in force at the time of the dissolution. To the contrary, it may do so if it has evidence before it that would create a proper foundation for such an order.


text:
    Elizabeth M. Hall v. Peter V. Brazzale
    (11375)
    Dupont, C. J., Foti and Freedman, Js.
    Argued February 18
    decision released May 18, 1993

      David B. Losee, with whom, on the brief, was Holly Jean Bray, for the appellant (defendant).

      Ralph G. Elliot, for the appellee (plaintiff).
   Freedman, J.

This is an action brought by the zoning administrator of the town of Salisbury to enforce a cease and desist order against the defendant regarding the storage of contractor’s vehicles and equipment on his property in Salisbury. The defendant appeals from the judgment of the trial court granting the plaintiff a permanent injunction prohibiting the defendant from storing more than three pieces of construction equipment on his property. The defendant’s central claim on appeal is that his present use of the property as the storage site for all of his business vehicles and equipment is legally protected as an intensification of the prior existing nonconforming use of the property as a storage site for some of the vehicles and equipment associated with his business. Because we conclude that the defendant’s prior existing nonconforming use of his property is as a storage site for his contractor’s vehicles and equipment, we reverse the judgment of the trial court.

The parties and the trial court employed an unusual procedure in adducing evidence regarding whether the defendant had a prior existing nonconforming use at the time zoning was adopted in Salisbury and whether that use had been abandoned. The trial court, at the request of the parties, “remanded” those issues to the Salisbury planning and zoning commission. After hearing sworn testimony from fifteen individuals and examining forty-eight exhibits, the commission prepared a report and findings, which were then submitted to the court. The parties raise no challenge to the procedure used by the trial court. Accordingly, we base our decision on the following facts as found by the commission and accepted by the trial court.

Brazzale Construction Company has been in the contracting business in Salisbury since the 1930s. The original contracting business was primarily in masonry and excavation. Over the years, Brazzale Construction added paving and dropped masonry work from its contracting business.

Three parcels of land on Lincoln City Road in Salisbury are involved in the determination of the issues presented by this case. The parcel referred to as lot 33-34 is the focus of the trial court’s injunction at issue in this case.

From the late 1930s until January, 1941, lot 33-34 was the principal and only place of business for Braz-zale Construction. In 1941, a parcel known as lot 41 was purchased. Most of the business’ equipment was moved from lot 33-34 to lot 41. Some materials and, occasionally, some equipment used by Brazzale Construction continued to be stored on lot 33-34. In January, 1953, a parcel known as lot 25-1 was purchased. Lot 25-1 then became the principal place for the storage of Brazzale Construction’s equipment and materials. As a result of the purchase of lots 41 and 25-1, equipment and material storage on lot 33-34 became incidental and subordinate to the use of lots 41 and 25-1 as storage sites. The business did, however, continue to store materials and equipment on lot 33-34 at different times throughout the year.

In 1959, zoning regulations were adopted in Salisbury. Lot 33-34 was zoned residential. At that time, however, lot 33-34 continued to be used for the incidental and occasional storage of both materials and equipment. The use of lot 33-34 was clearly secondary to the principal business locations at lots 41 and 25-1. All dispatching, invoicing and related everyday business activity for Brazzale Construction occurred at lot 41, not lot 33-34. Everyday storage of equipment for Brazzale Construction was on lot 25-1, not lot 33-34.

In 1959, lot 34 had two residential buildings with a few accessory outbuildings. Lot 33 had a small barn for the storage of materials. In the early 1960s, the bam was removed and a house was built for the defendant, Peter V. Brazzale. This brought lot 33 to a more conforming use. The lot was used less for the incidental and secondary storage of contractor’s equipment than at the time zoning was enacted.

The use of lot 33-34 as a secondary storage site for Brazzale Construction continued into the 1980s. In 1984, Brazzale Construction moved its principal place of business from lots 25-1 and 41 to Millerton, New York. In 1985, lot 41 was sold. From November, 1984, through May, 1988, Millerton was the principal place of business of Brazzale Construction and the principal site of equipment and material storage. Lot 33-34, however, continued its secondary and incidental use for the business. That incidental use was never abandoned.

In 1988, Brazzale Construction relocated its principal business operations to lot 33-34, making that lot not only the principal storage facility but also the principal place of business, which had been located elsewhere since 1941. In addition, lot 33-34 has become the only site for the storage of the equipment and materials of Brazzale Construction. The occasional storage of some of the equipment on lot 33-34 in 1959 was expanded to the continuous storage of all of the business’ equipment. In 1989, the plaintiff directed a cease and desist order to the defendant regarding his storage of contractor’s vehicles and equipment on lot 33-34 without a permit.

The commission concluded, and the trial court agreed, that the defendant’s prior existing nonconforming use was limited to the type of secondary storage use made of the property in 1959. Further, because Brazzale Construction owned a total of twelve pieces of equipment in 1959 and, at most, stored only a few of those pieces of equipment on lot 33-34 in 1959, the commission determined that the defendant’s legally protected prior existing nonconforming use extended to the storage of no more than three pieces of contractor’s equipment on his property. The trial court therefore “grantfed] a permanent injunction prohibiting the defendant from storing more than three (3) pieces of construction equipment on lot 33-34 Lincoln City Road, Salisbury, Connecticut, without a permit issued pursuant to the Salisbury zoning regulations.” There was no order regarding the use of lot 33-34 as the principal place of business of Brazzale Construction.

The defendant challenges the conclusions drawn by the trial court and the commission from the subsidiary facts as they bear on the permissible scope of the defendant’s prior existing nonconforming use of his property. The defendant contends that the present use of his property is merely an increase in the amount of storage done on the property when compared to the prior use. We agree.

The defendant correctly points out that “ ‘a mere increase in the amount of business done pursuant to a nonconforming use is not an illegal expansion of the original use.’ ” Zachs v. Zoning Board of Appeals, 218 Conn. 324, 331, 589 A.2d 351 (1991); Helicopter Associates, Inc. v. Stamford, 201 Conn. 700, 716, 519 A.2d 49 (1986). “A change in the character of a use, however, does constitute an unlawful extension of the prior use.” Helicopter Associates, Inc. v. Stamford, supra; Salerno v. Scheuy, 140 Conn. 566, 571, 102 A.2d 528 (1954). “In deciding whether the current activity is within the scope of a nonconforming use consideration should be given to three factors: (1) the extent to which the current use reflects the nature and purpose of the original use; (2) any differences in the character, nature and kind of use involved; and (3) any substantial difference in effect upon the neighborhood resulting from differences in the activities conducted on the property.” Zachs v. Zoning Board of Appeals, supra, 332.

In this case, the present use is simply an intensification of the prior use. The attempt by the commission and the trial court to limit the defendant’s use of his property to a secondary storage site for his business vehicles and equipment finds no support in our law. “ ‘For there to be an existing use, premises must be so utilized as to be known in the neighborhood as employed for a given purpose.’ ” Helicopter Associates, Inc. v. Stamford, supra, 713; Wallingford v. Roberts, 145 Conn. 682, 684, 146 A.2d 588 (1958). “ ‘[A] utilization of the property so that it may be known in the neighborhood as being employed for a given purpose . . . [prescribes] neither the extent nor the quantity nor the quality of the use which may be permitted to continue . . . .’ ” DiBlasi v. Zoning Board of Appeals, 224 Conn. 823, 831, 624 A.2d 372 (1993), quoting Melody v. Zoning Board of Appeals, 158 Conn. 516, 520-21, 264 A.2d 572 (1969). Here, the property was used in 1959 for purposes of the storage of contractor’s vehicles and equipment, and it continues to be used for this purpose. Thus, the current use reflects the nature and purpose of the original use as a storage site. The commission and the trial court improperly defined the change in the character, nature and kind of use by emphasizing a quantitative feature of that use, namely, the change from a secondary storage site to the sole storage site. Notwithstanding this attempt to distinguish the former use from the present use, “[s]uch changes cannot reasonably be said to involve differences in the character of the nonconforming use rather than increases in the volume of business within the scope of the original use.” Zachs v. Zoning Board of Appeals, supra, 332-33. Finally, neither the commission nor the court made any findings of adverse effects on the neighborhood from the increase in the number of vehicles and amount of equipment currently stored on lots 33-34.

More of the same, then, cannot be the basis for a finding of an unlawful expansion of a prior existing nonconforming use. It is, instead, the essence of a lawful intensification of a prior existing nonconforming use. Thus, in Helicopter Associates, Inc. v. Stamford, supra, our Supreme Court concluded that “merely casual” use of property as a heliport at the time of a zone change prohibiting such use was nonetheless sufficient to afford the property owner the right to continue to use his property as a heliport on a regular basis, as long as the plaintiff’s use did not alter its classification for state licensing purposes. Likewise, in Planning & Zoning Commission v. Craft, 12 Conn. App. 90, 529 A.2d 1328, cert. denied, 205 Conn. 804, 531 A.2d 937 (1987), this court concluded that the transition from part-time, but year-round, use of a dwelling to full-time, year-round occupancy was not an impermissible extension of the prior existing nonconforming use. Because “[t]he nonconformity of use [in Craft] was created by the year-round use of the premises, not by whether such use was part-time or full-time”; id., 97; we concluded that “[t]he ‘volume’ of use has been increased, but the ‘scope’ of the nonconforming use has not been increased or extended.” Id., 98. “[A] change in intensity ... is not an acceptable criterion for determining whether a proposed use is a change in use or a continuation of an existing use.” DiBlasi v. Zoning Board of Appeals, supra, 833. Because the activity that the plaintiff seeks to enjoin in this case, namely, the storage of contractor’s vehicles and equipment used by the defendant in his business, has always taken place on the property in question, we conclude that the trial court improperly granted the plaintiff’s request for injunctive relief.

The judgment is reversed and the case is remanded with direction to render judgment for the defendant.

In this opinion the other judges concurred.

       The defendant did not challenge the factual findings of the commission in the trial court. Neither does he do so in this court. In fact, the defendant has not provided us with a transcript of the testimony or the exhibits presented to the commission, thus precluding any such review.
      The defendant does, however, attack the following statement in the trial court’s memorandum of decision: “Since the commission acted in this matter in a legislative, rather than an administrative, capacity . . . this court is not at liberty to substitute its judgment for that of the commission.” (Citation omitted.) Clearly, the commission was not acting in its legislative capacity when it evaluated the defendant’s claim to a prior existing nonconforming use of his property. See Thorne v. Zoning Board of Appeals, 156 Conn. 619, 238 A.2d 400 (1968); T. Tondro, Connecticut Land Use Regulation (2d Ed.) pp. 418-20. This erroneous statement, however, is of little significance in the context of this case.
      The appropriate standard of review of a zoning agency’s finding that a current use represents an expansion of a prior nonconforming use, however, is “whether that finding is supported by substantial evidence.” Zachs v. Zoning Board of Appeals, 218 Conn. 324, 330, 589 A.2d 351 (1991). Where there is no dispute regarding the subordinate facts on which the board relied in making its determination that the nonconforming use had been expanded, the trial court must assess whether those subordinate facts support that determination. Id., 331. Here, notwithstanding its misstatement regarding the capacity in which the commission acted when it determined that the defendant’s nonconforming use had been expanded, the trial court used the proper standard of review. After it accepted the unchallenged facts, the trial court then applied the proper standard of review when it determined that “the commission’s findings appear to support [its] conclusions.” The defendant, in his brief, seems to recognize this when he notes that “the [proper] scope of review . . . [is] whether the [commission] properly stated the law and properly applied it to the facts of the case.” Consequently, the defendant’s challenge to an isolated misstatement of law in the trial court’s memorandum of decision will not necessitate a reversal of the trial court’s judgment where that misstatement did not affect its review of the actions of the administrative agency.

       In its report to the Superior Court, the commission stated in pertinent part: “[W]e have determined that contractor’s equipment was stored on lot 33-34 as of June 8,1959, when zoning was enacted. We have found this to be a continuous use but minimal, secondary, and incidental to the principal place of business at lots 41 and 25-1 and later at the Millerton, N. Y., site.
      * ** *
      “Finally we have found that the present use is not a continuation of the use as a secondary site for equipment and material storage. This secondary, periodic and incidental use which characterized the non-conforming use in 1959 has been converted to a principal, continuous storage site for equipment and materials and the use of the premises as the principal site of the business. We find this to be a change in the basic character of [the] use as it was known in the neighborhood, and therefore a change in the use, rather than merely an intensification of a prior, non-conforming use. The current character and level of use has been caused not by natural growth of the activities undertaken in 1959 on lot 33-34, but rather by its conversion to a principal storage facility and principal place of business for a business whose principal place of business and storage had always been somewhere else.”

       The cease and desist order involved in this case declared that the defendant was in violation of the applicable zoning regulations “by storing contractor’s vehicles and equipment without a permit on property you own on Lincoln City Road.” The plaintiff’s verified complaint seeks enforcement of that cease and desist order. It does not challenge the defendant’s use of his property as the principal place of business of Brazzale Construction. Consequently, the location of the defendant’s business activity, as opposed to his storage of contractor’s vehicles and equipment, plays no role in our review of the trial court’s action. Whether those activities are lawful, then, is not before us. We must decide, instead, whether and to what extent the defendant can use his property for the purpose of “storing contractor’s vehicles and equipment.”


author: Heiman, J. Lavery, J.,

text:
    John Yanni v. Lawrence DelPonte, Commissioner of Motor Vehicles
    (11304)
    Lavery, Heiman and Schaller, Js.
    Argued February 9
    decision released May 18, 1993

      Gerald E. Farrell, for the appellant (plaintiff).

      Priscilla J. Green, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Heiman, J.

The plaintiff appeals from the trial court’s judgment dismissing his appeal from the decision of the commissioner of motor vehicles (commissioner) ordering the suspension of his operator’s license. The plaintiff asserts that the trial court improperly dismissed his appeal by incorrectly finding that the certified mail notice requirement of General Statutes § 14-227b (g) is directory and that the notice provided did not prejudice him. We affirm the judgment of the trial court.

The facts necessary to resolve this appeal may be summarized as follows. On December 21, 1990, the Wallingford police arrested the plaintiff for operating a motor vehicle while intoxicated. The plaintiff submitted to a breathalyzer test. The first test taken one-half hour after the plaintiff was apprehended showed that his blood alcohol content was 0.152 of 1 percent. A subsequent test taken approximately one hour after the plaintiff was stopped showed that his blood alcohol content was 0.133 of 1 percent. A written report of the arrest and the test results was forwarded to the department of motor vehicles in accordance with subsection (c) of General Statutes § 14-227b.

The plaintiff was informed by the commissioner that his operator’s license was to be suspended for ninety days. He was also notified that, if he so requested, he would be afforded a hearing to contest the suspension. After a hearing, the commissioner informed the plaintiff by bulk certified mail that his license had been suspended pursuant to the criteria set forth in General Statutes § 14-227b (f).

The plaintiff appealed the commissioner’s decision to the Superior Court. He alleged that the commissioner’s decision should be reversed because the commissioner improperly sent the notice of the decision by bulk certified mail rather than by certified mail as stated in § 14-227b (g) and improperly found that the arresting officer had probable cause for his arrest. The court found that the provision in § 14-227b (g) for the method of mailing the commissioner’s decision to the operator is directory, not mandatory, since it contains no invalidating language. The court also found that the arresting officer had probable cause to arrest the plaintiff. The court refused to overturn the plaintiff’s license suspension and subsequently dismissed his appeal. This appeal followed.

The plaintiff asserts that the trial court improperly found that the certified mail notice requirement of § 14-227b (g) is directory and that he was not prejudiced by the commissioner’s failure to send notice by certified mail. He emphasizes the fact that the legislature utilized the word “shall” in the statute when discussing the commissioner’s obligation to send notice of the decision to the operator. In the appendix to his brief, the plaintiff attached the United States Postal Regulations that distinguish between certified mail and bulk certified mail. The plaintiff contends that by virtue of the commissioner’s failure to send notice by certified mail, his due process rights were violated and he was prejudiced by the loss of his license. He further contends that the ineffective notice had the same effect as the commissioner’s not rendering a decision and thus the suspension of his license is ineffective and a nullity. We disagree.

General Statutes § 14-227b (g) provides in pertinent part that “[t]he commissioner shall . . . send a notice of his decision by certified mail . . . .” (Emphasis added.) The legislature’s use of the word “shall” does not in and of itself create a mandatory duty to perform an action. Hall Manor Owner’s Assn. v. West Haven, 212 Conn. 147, 152, 561 A.2d 1373 (1989); Caron v. Inland Wetlands & Watercourses Commission, 25 Conn. App. 61, 66, 592 A.2d 964 (1991), aff'd, 222 Conn. 269, 610 A.2d 584 (1992). Statutes are viewed as a whole in order to ascertain the legislative intent. Ruotolo v. Inland Wetlands Agency, 18 Conn. App. 440, 448, 558 A.2d 1021, cert. denied, 212 Conn. 806, 563 A.2d 1356 (1989). The test for determining whether a ■statutory requirement is mandatory or directory is whether the prescribed mode of action relates to a matter of substance or convenience. Hall Manor Owner’s Assn. v. West Haven, supra, 152-53; Caron v. Inland Wetlands & Watercourses Commission, supra. “Provisions relating to matters of substance are mandatory, whereas provisions designed to secure order, system, and dispatch in the proceedings [are] generally held to be directory, especially when the requirement is stated in affirmative terms unaccompanied by negative words.” (Internal quotation marks omitted.) Caron v. Inland Wetlands & Watercourses Commission, supra, 66-67. Notice of the commissioner’s decision regarding a suspension is a matter of convenience notifying the party of the right to appeal. A statutory provision of convenience is mandatory when that provision is accompanied by language that expressly invalidates an action taken after noncompliance with it. Brown v. Smarrelli, 29 Conn. App. 660, 664, 617 A.2d 905 (1992), cert. denied, 225 Conn. 901, 621 A.2d 284 (1993); Ruotolo v. Inland Wetlands Agency, supra. The statute here has no invalidating language that would render the commissioner’s decision ineffective for failure to mail the decision by certified mail. See footnote 1, supra. The trial court properly found that the method of mailing the decision to the motor vehicle operator is directory, not mandatory, and that the commissioner’s failure to mail notice by certified mail does not render the commissioner’s decision suspending the plaintiff’s license ineffective.

The judgment is affirmed.

In this opinion Schaller, J., concurred.

Lavery, J.,

concurring. Although I concur in the judgment of the court, I write separately because, under certain circumstances, the form of notice employed by the commissioner could have important due process consequences for the defendant.

General Statutes § 14-227b (g) states that after the suspension of an operator’s license is affirmed by the commissioner of motor vehicles following a hearing,the commissioner “shall render a decision at the conclusion of such hearing or send a notice of his decision by certified mail to such person not later than thirty-five days or, if a continuance is granted, not later than forty-five days from the date such person received notice of his arrest by the police officer. The notice of such decision sent by certified mail to the address of such person as shown by the records of the commissioner shall be sufficient notice to such person that his operator’s license or nonresident operating privilege is reinstated or suspended, as the case may be. . . .” (Emphasis added.)

In accordance with the statutory mandate of General Statutes § 14-22b (1), the commissioner has adopted regulations to implement the provisions of the statutory scheme embraced by § 14-227b. Of importance to this case is § 14-227b-21 of the Regulations of Connecticut State Agencies, which provides: “The decision of the hearing officer shall be in writing, and a copy of the decision shall be sent to the person who requested the hearing by bulk certified mail not later than thirty-five days, or if a continuance is granted not later than forty-five days, after the person received notice of his arrest.” (Emphasis added.)

As the plaintiff points out, “certified mail” and “bulk certified mail” are two different procedures. The United States Postal Service recognizes “certified mail” and “bulk mail certified.” If a letter is sent by “certified mail,” a record exists of both the mailing of the letter by the sender and its receipt by the recipient, who must sign for the letter. United States Postal Service Domestic Mail Manual, Issue 43, Item 912.11. If a letter is sent by “bulk mail certified” a record exists of only the fact that it was mailed by the sender and not of its receipt by the recipient, since the recipient’s signature is not required. United States Postal Service Domestic Mail Manual, Issue 43, Item 931.1. As the plaintiff also notes, the distinction between certified mail and bulk mail certified could be crucial if the operator, in later proceedings, is called on to prove whether he had received notice of his suspension.

Section 14-227b-21 of the Regulations of Connecticut State Agencies conflicts directly with the enabling statute, General Statutes § 14-227b. The statute requires that notice of suspension be sent by certified mail, while the regulation requires that the notice be sent by bulk certified mail. I do not believe that the commissioner acted within his authority in promulgating a regulation in direct conflict with the underlying statute. “It is clear that an administrative body must act strictly within its statutory authority, within constitutional limitations and in a lawful manner. ... It cannot modify, abridge or otherwise change the statutory provisions under which it acquires authority unless the statutes expressly grant it that power.” (Citations omitted.) Waterbury v. Commission on Human Rights & Opportunities, 160 Conn. 226, 230, 278 A.2d 771 (1971). “The power of an administrative agency to prescribe rules and regulations under a statute is not the power to make law, but only the power to adopt regulations to carry into effect the will of the legislature as expressed by the statute.” Salmon Brook Convalescent Home, Inc. v. Commission on Hospitals & Health Care, 177 Conn. 356, 363, 417 A.2d 358 (1979).

When a statute and regulation conflict, the statute must prevail. In the case of Strain v. Warden, 27 Conn. Sup. 439, 242 A.2d 90 (1968), a prisoner challenged a rule of the board of parole on the ground that it conflicted with a statute. The statute provided that when a prisoner on parole was in violation of the conditions of his parole, the unexpired portion of that person’s prison term was to be determined at the date of the request or order for the parolee’s return; the rule, on the other hand, provided that the unexpired portion of the term was to be determined at the date of the prisoner’s delinquency. On the conflict between statute and rule, Judge Palmer wrote: “In such a case, obviously the statute must prevail, and the rule must be declared void to the extent that it conflicts with the statute. 73 C.J.S. 422, Public Administrative Bodies and Procedure, § 103; 42 Am. Jur. 355, Public Administrative Law, § 49.” Strain v. Warden, supra, 445. “ ‘The general rule is well established that [w]here a specified mode of giving notice is prescribed by statute, that method is exclusive.’ ” Windsor Properties, Inc. v. Great Atlantic & Pacific Tea Co., 35 Conn. Sup. 297, 301, 408 A.2d 936 (1979).

It is important to note that the notice requirement of General Statutes § 14-227b (g) could be crucial in a criminal procedure context. General Statutes § 14-215 prohibits operating a motor vehicle while one’s vehicle registration or operator’s license has been refused, suspended, or revoked. Subsection (c) of § 14-215, which makes direct reference to § 14-227b, provides: “Any person who operates any motor vehicle during the period his operator’s license or right to operate a motor vehicle in this state is under suspension or revocation on account of a violation of subsection (a) or section 14-227a or section 53a-56b or 53a-60d or pursuant to section lJ¡.-227b, shall be fined not less than five hundred dollars nor more than one thousand dollars and imprisoned not more than one year, thirty consecutive days of which may not be suspended or reduced in any manner.” (Emphasis added.) The legislative history of § 14-227b reveals that when the legislature voted on and passed that section, it concurrently amended § 14-215 to include the words “or pursuant to section 14-227b.” The legislature was aware, therefore, that it was approving an overall reform of the drunk driving statutes, including the criminal sanctions for violating § 14-215.

Section 14-215 provides a mandatory jail term and fine for driving while one’s license is suspended pursuant to § 14-227b. Whether and when a person received notice of suspension would be crucial to that person’s defense were that person to face the severe sanctions provided by § 14-215.

The majority opinion correctly states our well settled test for determining whether a statutory requirement is mandatory or directory, and the proposition that “use of the word ‘shall’ does not in and of itself create a mandatory duty to perform an action.” We recently stated, however, that “[wjhere the word ‘shall’ is employed in criminal procedural rules, it indicates that the requirements that follow are mandatory rather than directory.” Miller v. Commissioner of Correction, 29 Conn. App. 773, 779, 617 A.2d 933 (1992). I believe that the legislature’s use of the word “shall” in § 14-227b makes the certified mail requirement mandatory rather than directory in the criminal procedure context of § 14-215.

I agree with the judgment of the majority because under the facts of this case, criminal procedure rules were not implicated. Had they been implicated, however, I believe that regulation § 14-227b-21 would have been invalid. Because in this case the plaintiff was not prejudiced by the commissioner’s use of bulk mail certified to send notice, I concur in the judgment.

       General Statutes § 14-227b (g) provides: “If, after [a] hearing, the commissioner finds on any one of the said issues [mentioned in subsection (f) of this section] in the negative, the commissioner shall reinstate such license or operating privilege. If, after such hearing, the commissioner does not find on any one of the said issues in the negative or if such person fails to appear at such hearing, the commissioner shall affirm the suspension contained in the suspension notice for the appropriate period specified in subsection (h) of this section. The commissioner shall render a decision at the conclusion of such hearing or send a notice of his decision by certified mail to such person not later than thirty-five days or, if a continuance is granted, not later than forty-five days from the date such person received notice of his arrest by the police officer. The notice of such decision sent by certified mail to the address of such person as shown by the records of the commissioner shall be sufficient notice to such person that his operator’s license or nonresident operating privilege is reinstated or suspended, as the case may be. Unless a continuance is granted to such person pursuant to subsection (f) of this section, if the commissioner fails to render a decision within thirty-five days from the date such person received notice of his arrest by the police officer, the commissioner shall reinstate such person’s operator’s license or nonresident operating privilege, provided notwithstanding such reinstatement the commissioner may render a decision not later than two days thereafter suspending such operator’s license or nonresident operating privilege.” (Emphasis added.)

       On appeal, the plaintiff does not contest the court’s finding that the officer had probable cause to arrest him.

       During his hearing before the trial court, the plaintiff did not present evidence to distinguish certified mail from bulk certified mail.

       Our Supreme Court noted that “[w]hile we generally will not look for interpretative guidance beyond the language of the statute when the words of the statute are plain and unambiguous . . . our past decisions have indicated that the use of the word ‘shall,’ though significant, does not invariably create a mandatory duty.” (Citation omitted.) Hall Manor Owner’s Assn. v. West Haven, 212 Conn. 147, 152, 561 A.2d 1373 (1989).

       The plaintiff cannot establish that he was prejudiced by the commissioner’s failure to deliver notice of his decision by certified mail. He concedes that he had actual timely notice of the decision. His claim that he suffered prejudice, the suspension of his license, is without merit. This alleged prejudice is no different from that suffered by a person who received notice by certified mail. The plaintiff therefore suffered no cognizable prejudice, since he had actual notice of the commissioner’s decision.


author: O’Connell, J.

text:
    Housing Authority of the Town of East Hartford v. Eugene Olesen et al.
    (11046)
    O’Connell, Landau and Schaller, Js.
    Argued January 7
    decision released May 18, 1993

      John F. Sullivan, with whom, on the brief, was Ralph J. Alexander, for the appellant (plaintiff).

      Pamela A. Mitchell, with whom was Nancy A. Hro-nek, for the appellees (defendants).
   O’Connell, J.

The plaintiff housing authority appeals from the judgment in favor of the defendants in this summary process action based on the defendants’ failure to pay their April, 1988 rent. The plaintiff claims that the trial court improperly (1) construed the plaintiff’s duty under federal law to inspect for lead-based paint, and (2) applied General Statutes § 47a-4a to the facts of this case. We affirm the judgment of the trial court.

In November, 1986, the plaintiff and the defendants entered into an automatically renewable month-to-month written lease for an apartment in East Hartford. The apartment is a federally subsidized public housing unit governed by applicable state law and § 8 of the United States Housing Act of 1937, 42 U.S.C. § 1437, and its implementing regulations in title 24 of the Code of Federal Regulations.

As a result of the defendants’ failure to make their April, 1988 rent payment, the plaintiff caused a notice to quit to be served on the defendants, ordering them to quit possession of the premises on or before April 25, 1988. When the defendants did not vacate the premises, the plaintiff commenced this summary process action. Subsequently, the East Hartford health department removed samples of peeling paint from the premises and forwarded them to the state department of health services laboratory where analysis revealed that the paint had a lead content in excess of that permitted by federal and state standards. The plaintiff took immediate action and the problem was corrected within two weeks.

Thereafter, the defendants filed an amended answer that raised several special defenses including two alleging that the presence of the lead-based paint obviated their obligation to pay rent for April, 1988. The matter proceeded to trial and the trial court rendered judgment for the defendants. The plaintiff appealed.

The dispositive issue in this case is whether the presence of paint with a lead content in excess of relevant federal and state standards bars the collection of rent even if the landlord is not aware of the problem at the time of nonpayment. The plaintiff first claims that the presence of lead-based paint should not act as a bar to the collection of rent because it fully observed the federal regulation in effect at the time, which required paint inspections only at unit turnover or as part of routine periodic unit inspections. See 24 C.F.R. § 965.704 (1988). The plaintiff maintains, therefore, that it was under no duty to inspect the premises for lead-based paint at the time of nonpayment. We note that although the trial court found the plaintiff to have such a duty, we decline to address this issue because it is irrelevant to the disposition of the appeal.

The outcome of this case is not governed by the frequency of inspection required by federal law. Rather, the outcome of the case is controlled by the clear mandate of state law. While the federal regulations set forth various components of a landlord’s duty in lead-based paint abatement, they also expressly state that the landlord must comply with state and local law. “Nothing in this subpart [governing lead-based paint poisoning prevention] is intended to relieve a [public housing authority] of any responsibility for compliance with state or local laws, ordinances, codes or regulations governing lead-based paint testing or hazard abatement.” 24 C.F.R. § 965.706 (1988); see 24 C.F.R. § 965.710 (1992); see also Connelly v. Housing Authority, 213 Conn. 354, 356 n.2, 567 A.2d 1212 (1990) (federally subsidized housing is subject to applicable state law).

Our state law provides a broad range of statutes and regulations governing lead-based paint testing and abatement. Included in that body of law is the statutorily established affirmative duty of a landlord to do whatever is necessary to put and keep the premises in a fit and habitable condition, including its being free of paint with an impermissible lead content. This duty has its provenance in General Statutes § 47a-7 (a), which imposes a number of responsibilities on the landlord including the mandate in subdivision (2) that a landlord “make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition . . . . ” The expansion of that duty to include lead-based paint abatement is unequivocally furnished by General Statutes § 47a-8, which provides in relevant part that “[t]he presence of paint which does not conform to federal standards as required in accordance with the Lead-Based Paint Poisoning Prevention Act, Chapter 63 of the Social Security Act, as amended. . . shall be construed to render such dwelling unit . . . unfit for human habitation and shall constitute a noncompliance with subdivision (2) of subsection (a) of section 47a-7.” A violation of § 47a-8, therefore, constitutes a per se violation of § 47a-7 (a) (2).

To ensure that the landlord’s duties are performed, General Statutes § 47a-4a provides that “[a] rental agreement shall not permit the receipt of rent for any period during which the landlord has failed to comply with subsection (a) of section 47a-7.” Generally, a tenant claiming the right to withhold rent must “show that the landlord’s failure to comply with § 47a-7 (a) materially affects his safety . . . or has rendered the premises uninhabitable.” (Citation omitted; internal quotation marks omitted.) Visco v. Cody, 16 Conn. App. 444, 450, 547 A.2d 935 (1988). The legislature, however, in its enactment of § 47a-8, has removed that burden from the tenant where lead-based paint is involved. The legislature has determined that the mere presence of lead-based paint shall be construed to render the dwelling unit uninhabitable and shall constitute noncompliance with § 47a-7 (a) (2). Consequently, there is nothing to forestall the triggering of the sanction imposed by § 47a-4a.

In the present case, the parties agree that the lead content of the paint on the exterior of the apartment at the time of nonpayment of rent in April, 1988, exceeded the standard referenced in § 47a-8. Accordingly, by virtue of the unambiguous language of the statutes, the plaintiff was not in compliance with § 47a-7 (a) (2) in April and, as a result, pursuant to § 47a-4a, the receipt of rent for that month was prohibited.

Notwithstanding the plain language of the statutes, however, the plaintiff suggests that the statutory scheme impliedly provides for either a grace period in which to cure the problem or, at least, a notice requirement before the right to withhold rent arises. There is no indication that the legislature intended anything other than what it has expressed in the clear statutory language. In the absence of any ambiguity, we construe the intent of the legislature by what it said, not by what it may have meant to say. Furstein v. Hill, 218 Conn. 610, 622, 590 A.2d 939 (1991). We need look no further than the statutory language. Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission, 219 Conn. 685, 692, 595 A.2d 313 (1991). Moreover, in light of the significant health hazards posed by lead-based paint, the result compelled by the language of these statutes is neither absurd nor irrational. See Turner v. Turner, 219 Conn. 703, 712-13, 595 A.2d 297 (1991). Accordingly, we decline to impose a notice provision on this unambiguous statutory scheme.

Furthermore, if the legislature intended to include a notice provision, it was capable of doing so. For example, General Statutes § 47a-13, which was enacted as part of a public act that also significantly revised § 47a-8, specifically established such a provision. In addressing the tenant’s remedies when a landlord has failed to supply essential services, General Statutes § 47a-13 (c) provides that the “[r]ights of the tenant under this section do not arise (1) until the tenant has given reasonable written or oral notice to the landlord or (2) if the condition was caused by the wilful or negligent act or omission of the tenant, a member of his family or other person on the premises with his consent.” No similar language accompanies § 47a-8.

Because it is presumed that the legislature acts with knowledge of existing statutes and intends to create one consistent body of law; Kinney v. State, 213 Conn. 54, 65, 566 A.2d 670 (1989); it is not our role to engraft the language of one statute onto another, particularly where, as here, the statutes are similar and were under consideration by the legislature at the same time. See Caron v. Inland Wetlands & Watercourses Commission, 222 Conn. 269, 277, 610 A.2d 584 (1992); Doe v. Manson, 183 Conn. 183, 187-88, 438 A.2d 859 (1981).

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff is a municipal housing authority created pursuant to chapter 128 of the General Statutes.

       The defendants, Eugene Olesen and Nancy McCormick-Olesen, were parties to the rental agreement.

       The parties stipulated that the lead content of the paint exceeded the amount permitted by the Lead-Based Paint Poisoning Prevention Act, chapter 63 of the Social Security Act. Because General Statutes § 47a-8 has incorporated that standard, the lead content of the paint also exceeded that permitted by state law.

       The first of these two special defenses alleged a violation of General Statutes § 47a-7 (a) (2) and the second alleged violations of subdivisions (1) through (4). Because we find the first special defense to be dispositive of this appeal, we do not address the second.

       State statutes include General Statutes § 8-219e (financial assistance for removal of lead-based paint), § 17-585 (lead-based paint inspection of family day-care centers), §§ 19a-llla through 19a-llld (lead poisoning prevention program), § 21a-82 (use of nonconforming lead-based paint in tenements and municipally owned buildings prohibited), § 21a-83 (restrictions on the packaging and sale of nonconforming lead-based paint), § 21a-85 (penalties for failure to comply with §§ 21a-82 and 21a-83), and § 47a-8. The primary compilation of regulations is found at § 19a-lll-l et seq. of the Regulations of Connecticut State Agencies.

       The plaintiff does not argue that it had no notice that the presence of lead-based paint was not permitted on the premises. Nonconforming lead-based paint has been prohibited on rental dwelling units in this state for many years under General Statutes § 47a-8. Section 47a-8 has its origins in General Statutes § 47-24, enacted in 1958. It was first substantially revised by No. 194, § 4, of the 1971 Public Acts, the act being entitled “An Act to Enforce the Elimination of Lead-based Paint in Housing Accommodations.” By 1976, it had nearly assumed its present language which, ultimately, was provided by No. 79-571 of the 1979 Public Acts.

       Public Acts 1976, No. 76-95, § 13. Section 20 of the same act amended General Statutes § 47a-8 by, inter alia, adding the language “and shall constitute a noncompliance with subdivision (2) of subsection (a) of section 47a-7.”

       Public Acts 1976, No. 76-95, § 13. Section 20 of the same act amended General Statutes § 47a-8 by, inter alia, adding the language “and shall constitute a noncompliance with subdivision (2) of subsection (a) of section 47a-7.”