author: Bieluch, J.

text:
    State of Connecticut v. Edwin A. Woolfolk
    (2593)
    Dupont, C. J., Daly and Bieluch, Js.
    Argued March 18
    decision released August 26, 1986

      Robert J. Sweeney, assistant public defender, for the appellant (defendant).

      Julia DiCocco Dewey, assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, and Patrice Amendola, legal intern, for the appellee (state).
   Bieluch, J.

The defendant was convicted by a jury of the crimes of robbery in the first degree, in violation of General Statutes § 53a-134 (a) (2), carrying a pistol without a permit, in violation of General Statutes § 29-35, and stealing a firearm, in violation of General Statutes § 53a-212 (a). On appeal from the judgment rendered, the defendant raises two claims of error. We find no error.

The jury could reasonably have found the following facts: In the midafternoon of September 29,1982, the defendant met with Danny Hayward and Jessie Hardy at the latter’s home. At the defendant’s suggestion, the three men engaged in a dice game for money. They gambled for about two hours, during which time the defendant lost all of the money that he had with him, approximately two or three hundred dollars. After the game ended, the defendant left the premises, but returned later to reclaim his money, alleging that the dice used in play were “fixed.” Hardy denied the allegation and refused to refund the defendant’s money.

Later that afternoon, the defendant encountered Hayward and Hardy at a nearby fish market. Words were exchanged, but no physical altercation took place. Shortly thereafter, the defendant accosted the other two in back of the shopping plaza. At that confrontation, he snatched some money from the hand of Hayward, tearing a five dollar bill in half in the process. This was done after he pointed a loaded and operable .45 caliber revolver at him. After picking up the portion of the money that fell to the ground, the defendant rode off on his bicycle to a friend’s apartment, where he was arrested a short while later after being identified by the two victims. A police search of the area of the arrest uncovered the loaded weapon under a bed. The gun matched the description of the weapon used in the robbery given by the two complainants. After the defendant was arrested, he was taken to the police station where he gave a statement indicating that he took the money because Hayward and his brother owed him $66. The gun, he claimed, had been purchased a day or two before from an unidentified person for $50 and was not displayed or used in a robbery or threat against Hayward and Hardy. In his testimony, he stated that “I had [the gun] in my pants, but I didn’t pull it out. . . . Never pulled it out.”

After the jury returned its verdict of guilty to the three charges, the trial court sentenced the defendant to a total effective term of twelve years, execution to be suspended after nine years, with three years probation thereafter. The defendant appeals from that judgment, claiming that the trial court erred (1) in refusing to instruct the jury as to the use of physical force in defense of property as set forth in General Statutes § 53a-21, and (2) in failing to give the requested charge relating to justification as a defense in the language of § 53a-21. These assignments of error, in substance, are related, being two sides of the same coin.

The defendant requested the following charge: “Our statutes provide that ‘[a] person is justified in using reasonable physical force upon another person . . . when and to the extent he reasonably believes it necessary to regain property which he reasonably believes to have been acquired by larceny within a reasonable time prior to the use of such force . . . . Therefore, if you conclude that Mr. Woolf oik reasonably believed that his money had been acquired by Mr. Hayward by larceny then you must find the defendant not guilty of Robbery 1st. Remember it is not necessary for Mr. Woolf oik to prove that, in fact, his money was taken by Mr. Hayward by larceny. All that is necessary is for Mr. Woolfolk to reasonably believe that his money had been acquired by Mr. Hayward by larceny (e.g. through the use of ‘fixed dice’).” In its charge to the jury, the court described the various elements of the crime of robbery in the first degree and explained the burden of proof that was required of the state to establish all of those elements beyond a reasonable doubt for a conviction. The defendant took an exception to the court’s failure to give his requested charge on the applicability of General Statutes § 53a-21, which he then called an “affirmative defense.”

General Statutes § 53a-12 provides: “(a) When a defense other than an affirmative defense, is raised at a trial, the state shall have the burden of disproving such defense beyond a reasonable doubt, (b) When a defense declared to be an affirmative defense is raised at a trial, the defendant shall have the burden of establishing such defense by a preponderance of the evidence.” In this appeal, the defendant now maintains that the “[u]se of physical force in defense of property [in accordance with § 53a-21] is not an affirmative defense under Connecticut General Statutes.” Instead, he claims, it may be asserted as a defense by way of justification pursuant to General Statutes § 53a-16, which provides in part that “justification, as defined in sections 53a-17 to 53a-23, inclusive, shall be a defense” in any prosecution for an offense.

The state, on the other hand, maintains on appeal that “a given affirmative defense is legally available and an affirmative defense charge therefore required only when the defendant has introduced a quantum of evidence sufficient, in the trial court’s reasoned judgment, to warrant giving the instruction.” Such a measure of evidence, the state claims, the defendant did not produce at trial. Therefore, the prosecution was not obligated to prove the nonexistence of an affirmative defense which is legally unavailable to the defendant. For that reason also, the state maintains, the court properly excluded the defendant’s request to charge, since it was not obligated to charge on a theory of defense not supported by the evidence.

The defendant’s designation at trial, and the plaintiff’s description on this appeal, of justification under § 53a-21 as an “affirmative defense” are erroneous. The dispositive issue before this court is the defendant’s entitlement at trial to a theory of defense charge.

A fundamental element of due process is the right of a defendant charged with a crime to establish a defense. State v. Miller, 186 Conn. 654, 660, 443 A.2d 906 (1982). The identification of a defense as an affirmative defense is relevant to the burden of proof in establishing such defense. The defendant has the burden of proving an affirmative defense by a preponderance of the evidence, while all other defenses must be disproven by the prosecution beyond a reasonable doubt. General Statutes § 53a-12. This is so because an affirmative defense does not serve to negate an element of the crime which the state must prove in order to convict, but constitutes a separate issue or circumstance on which the defendant is required to carry the burden of persuasion. State v. Wilkinson, 176 Conn. 451, 464, 408 A.2d 232 (1979).

General Statutes § 53a-16 provides that “[i]n any prosecution for an offense, justification, as defined in sections 53a-17 to 53a-23, inclusive, shall be a defense.” Justification under these statutes, and in particular as claimed here under § 53a-21, is not an affirmative defense. The “lack of justification is an element of a criminal prosecution on which the state bears the burden of proof.” State v. Preyer, 198 Conn. 190, 199, 502 A.2d 858 (1985); State v. Cassino, 188 Conn. 237, 241, 449 A.2d 154 (1982).

The precise question before us is therefore independent of the issue of burden of proof of a defense at trial, the determination of which is controlled by § 53a-12 in accordance with the classification of a defense as affirmative or nonaffirmative in nature. We have before us the resolution of whether the defendant was entitled to a theory of defense charge predicated upon his use of physical force in defense of property under § 53a-21. Narrowed down, the issue is whether that defense was made at trial, for under § 53a-12 all defenses, affirmative and nonaffirmative, must be “raised at a trial.”

Our Supreme Court recently ruled on a defendant’s entitlement to a theory of defense charge as follows: “We have held that when a defendant ‘admits the commission of the crime charged but seeks to excuse or justify its commission so that legal responsibility for the act is avoided, a theory of defense charge is appropriate.’ State v. Rosado, 178 Conn. 704, 707, 425 A.2d 108 (1979). . . . [T]he defendant’s claim of an innocent intent, if accepted by the jury, would negate an essential element of the crime and mandate a verdict of not guilty. This defense is intrinsically factual, however, and not of the type which we have held to require a distinct instruction as part of the trial court’s charge. A general ‘claim of innocence or a denial of participation in the crime charged is not a legally recognized defense and does not entitle a defendant to a theory of defense charge.’ State v. Rosado, supra. A theory of defense instruction is appropriate, upon proper request; State v. Preyer, [supra]; only when evidence supporting a ‘legally recognized defense’ is placed before the jury. State v. Cassino, [supra, 243]; State v. Rosado, supra; see State v. Harris, 189 Conn. 268, 274, 455 A.2d 342 (1983).” State v. Silveira, 198 Conn. 454, 461-62, 503 A.2d 599 (1986).

In the first count, the defendant was accused of robbery in the first degree, in violation of General Statutes § 53a-134 (a) (2). The portion of the penal code pertinent here provides: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime . . . he . . . is armed with a deadly weapon . . . . ” The weapon need not be “exhibited, displayed, utilized or referred to in order for one to be considered ‘armed’ ” within the requirements of § 53a-134 (a) (2) for a conviction of robbery in the first degree. State v. Anderson, 178 Conn. 287, 294, 422 A.2d 323 (1979).

The defendant’s defense of justification expressed in his requested charge is predicated upon that portion of General Statutes § 53a-21 which provides: “A person is justified in using reasonable physical force upon another person . . . when and to the extent he reasonably believes it necessary to regain property which he reasonably believes to have been acquired by larceny within a reasonable time prior to the use of such force . . . . ” Because the defendant’s claim is not a “legally recognized defense” under our law to a charge of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), the trial court did not err in denying his request to charge.

The justification defense allowed under General Statutes § 53a-21 is expressly limited to the use of reasonable physical force in the defense of property. By its limiting proviso, excluded from the defendant’s request to charge, one “may use deadly physical force under such circumstances only in defense of person as prescribed in section 53a-19.” Under General Statutes § 53a-3 (5), “ ‘[djeadly physical force’ means physical force which can be reasonably expected to cause death or serious physical injury.”

The defendant’s claimed defense, predicated only upon that portion of § 53a-21 which allows reasonable physical force in defense of property, is inapplicable to the charge of robbery while armed with a deadly weapon because of the further provision of the statute not referenced in his requested charge, but which applies to the offense of robbery while armed with a deadly weapon and precludes the use of deadly physical force in the defense or retrieval of personal property. In substance, the defendant’s alleged defense constitutes a denial that the admitted robbery was committed by him while armed with a deadly weapon, an element of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2) which the prosecution had to prove for a conviction on that charge.

A review of the evidence at trial claimed by the defendant to support his theory of defense, when viewed in the light most favorable to him, fails to establish any foundation for a legally recognized defense to his admitted robbery while carrying on his person a revolver fully loaded with live bullets. The defendant testified as follows: Two acquaintances of long standing, Jessie Hardy and Danny Hayward, invited him to play dice for money with their dice at Hardy’s home. At first Hardy and Hayward were losing to the defendant, who then offered to quit playing, but the other two talked him into continuing to gamble. When the defendant lost about one hundred dollars, he went home and got some more money. Eventually, he lost between $200 and $300, when the other two quit playing. Hardy’s brother then told the defendant that they had played with trick dice, although the defendant had seen nothing wrong with them while throwing the dice. He claimed, however, that the other two had let him roll the dice more times than they had rolled. His demand that they return his money was refused. He then left.

The defendant next went to a friend’s house to get his gun. This was a revolver fully loaded with live bullets. With this on his person, the defendant returned to the Hardy home to ask again that his lost money be returned to him. Hayward repeated that he could not get his money back and shut the door on him. After waiting there for about one half hour, the defendant left and went to a nearby fish market to buy some fish. Before leaving the fish market after his purchase, Hardy and Hayward came in and asked the defendant if he was looking for them. The defendant backed away from them and said he would not fight them. Hardy and Hayward then left. When they turned the corner, the defendant told the salesgirl that he would be back and that he “was going to get my money from them.” The defendant then followed the other two to the back of Dixwell Plaza, where they stopped when he hailed them. After getting off his bicycle, he asked for the return of his money. They refused him. At that, he “snatched” whatever money Hayward had in his hand. When he saw that a five dollar bill was left, he “snatched the five and the five dollars ripped. Half of it fell on the ground. I just picked it up, got on my bike and left.” Before he left, “they told me [Hayward] got the rest of the money at his house, come and get it. I said, next time I see you, you better have it.” He remained on the avenue until the police arrived and he saw Hardy and Hayward go to the patrol car.

The loaded gun was in the defendant’s pants. He never pulled it out, but he had zipped down his jacket and did not know whether Hardy and Hayward had seen the gun. He admitted, however, that they probably saw the bulge made by the gun and that they knew he possessed the gun because they had seen it a day or two before when he had shown it to others. The defendant’s evidence concluded with his testimony that he was happy “because I had a gun and I wanted to use it for protection. Anybody try to get something through me, I would show them my gun.”

We conclude that neither the affirmative testimony of the defendant, nor the evidence brought out on cross-examination of the prosecution’s witnesses, together with any reasonable inferences drawn from their direct testimony, support a legally recognized defense to the first count of robbery while armed with a deadly weapon in violation of General Statutes § 53a-134 (a) (2). Whether the defendant argued his theory of defense to the jury without objection we are unable to determine from the record before us. There is no transcript of counsel’s argument. We, therefore, do not consider whether such an argument would require the trial court to give the jury relevant instructions pertaining to the theory of defense.

The Model Penal Code § 3.02 (1) (a) provides that conduct which would otherwise constitute a criminal offense may be legally excused or justified, provided that “the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged.” This provision was not adopted in the enactment of our penal code in 1969. See Public Acts 1969, No. 828. Under § 53a-21, one is justified in using only reasonable physical force upon another person in defense of property.

In the present case, the defendant seeks to justify the commission of robbery in the first degree, while armed with a deadly weapon, in violation of General Statutes § 53a-134 (a) (2), a class B felony, by claiming that it was necessary to prevent what is illustrated by the facts then to have been no more than a larceny in the third degree, a class B misdemeanor. See General Statutes (Rev. to 1981) § 53a-124. This he cannot do. A person is not reasonably justified as a matter of law in committing armed robbery in order to prevent the commission of a minor larceny. The theory of defense requested by the defendant was legally inadequate to justify the commission of the felony as charged. The trial court did not err in refusing to charge on the theory of defense of justification as requested.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-21 provides further: “but he may use deadly physical force under such circumstances only in defense of person as prescribed in section 53a-19.” Under General Statutes § 53a-3 (5), “ ‘deadly physical force’ means physical force which can be reasonably expected to cause death or serious physical injury.”


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    State of Connecticut v. Michael Chiarizio
    (3610)
    Dupont, C. J., Borden and Spallone, Js.

      Argued June 11
    decision released August 26, 1986

      Maxwell Heiman, with whom was William J. Tracy, Jr., for the appellant (defendant).

      F. Kent Sistare, Jr., special assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, Frank Ianotti, assistant state’s attorney, and James G. Clark, deputy assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, after a jury trial, of three counts of professional gambling in violation of General Statutes § 53-278d (b), three counts of using a telephone to transmit and receive gambling information in violation of General Statutes § 53-278d (a), and one count of possession of gambling records in violation of General Statutes (Rev. to 1979) § 53-278c (e). His conviction resulted in part from the introduction into evidence of tape recordings of his conversations, over a telephone located at a bar known as The Ivy Hill Lounge (the lounge), which were intercepted pursuant to a judicially authorized wiretap. The court denied the defendant’s motions to suppress as evidence the tape recordings of his conversations. The principal issues are: (1) whether a telephone leased to a bar and made available for local calls to its patrons is a public telephone facility within the meaning of General Statutes § 54-4M (7); (2) whether General Statutes § 54-41e requires more from the judicial panel issuing a wiretap order than a written statement, based on the supporting affidavit and application, specifying in the language of the statute the findings required by the statute; and (3) whether the state’s attorney for a judicial district is barred by federal law from applying for a wiretap order. The defendant also raises three evidentiary claims, one of which involves the nature and timing of the statutory requirement that tape recordings of the intercepted conversations be sealed. We find no error.

The facts are not in dispute. Pursuant to General Statutes § 54-41b, the state’s attorney for the judicial district of Hartford-New Britain applied to a judicial wiretap panel for permission to intercept the telephonic communications of the defendant and other unknown persons over telephone facility number 666-4653, located at the lounge, in Newington, described as a commercial location. Attached to the application and specifically incorporated by reference was the affidavit of Trooper John S. Drescher.

Drescher’s affidavit disclosed, inter alia, that the main business of the lounge was the service of food and of alcoholic beverages. The affidavit also stated that telephone company records revealed that telephone facility 666-4653 was located within the lounge premises, that it was leased to the business, and that there were two extensions to the facility within the lounge. The affidavit further disclosed that there were three telephones located on or behind the bar and in the kitchen, all being extensions of number 666-4653, and that the defendant was using these telephones to engage in professional gambling and to transmit and receive gambling information.

The application and affidavit were submitted to the wiretap panel of three judges, which ordered “the interception of the wire communications of [the defendant] and other unknown persons, and transmitted over facility no(s). 666-4653, located at 244 Hartford Avenue, Newington, Conn., The Ivy Hill Lounge.” The order contained the following language: “The panel, pursuant to Section 54-41d, of the General Statutes, has unanimously determined on the basis of the facts submitted by the applicant in [Drescher’s affidavit] that there is probable cause to believe that” the nine findings required by General Statutes § 54-41d exist. The nine findings of probable cause made by the panel essentially tracked the statutory language of General Statutes § 54-41d. The seventh finding, which corresponded to General Statutes § 54-41d (7), was as follows: “(7) if the facilities from which the wire communication is to be intercepted are public, a special need exists to intercept wire communications over such facilities (if applicable).”

The wiretap order was executed, resulting in three reels of tape recordings containing the defendant’s conversations over the telephones in the lounge. The defendant filed three separate motions to suppress his intercepted conversations. The first claim was, inter alia, that “[t]he facilities from which the wire communications were intercepted are public and the application for [the] order . . . makes no application of special need sufficient to support the [order] . . . .” The court, Hale, J., denied this motion. The second and third motions claimed, respectively, (1) that the order was facially invalid because the issuing panel failed to state the grounds for its determinations of probable cause as required by General Statues § 54-41e, and (2) that the order was invalid because the state’s attorney was not an authorized person to apply for it, pursuant to applicable federal law. The court, Byrne, J., denied these motions and the evidence was admitted in the trial. This appeal followed.

I

The Defendant’s Motions to Suppress

A

THE PANEL’S FAILURE TO DETERMINE WHETHER THE FACILITY WAS PUBLIC AND, IF SO, WHETHER A SPECIAL NEED EXISTED

The defendant’s first claim of error involves General Statutes § 54-41d (7), which authorizes the panel to issue a wiretap order “if the panel determines on the basis of the facts submitted by the applicant that there is probable cause to believe that:... (7) if the facilities from which a wire communication is to be intercepted are public, a special need exists to intercept wire communications over such facilities . . . . ” The defendant argues that this language requires a specific finding by the panel of probable cause as to whether the facility is public and, if so, a specific finding of probable cause that a special need exists. The defendant further argues that the evidence produced at the hearing on his motion to suppress indicates that the facility tapped was a public telephone, that a reasonable prior investigation by the applicant would have revealed that the telephone had sufficient indicia of publicity to warrant submission of the question of its character to the panel for determination, and that finding number seven of the panel’s order was insufficient to meet the mandate of the statute. We reject the defendant’s arguments.

First, the statute does not, as the defendant argues, require that the issuing panel make a specific finding as to whether the facility is public and, if so, whether a special need exists. General Statutes § 54-41d (7) requires, for wiretap authorization, that “the panel [determines] on the basis of the facts submitted by the applicant that there is probable cause to believe that: ... (7) if the facilities from which a wire communication is to be intercepted are public, a special need exists to intercept wire communications over such facilities . . . .” (Emphasis added.) Thus, it is the publicity of the facility, as determined by the facts submitted by the applicant, which triggers the required determination by the panel that a special need exists for interception.

There was nothing in the application or affidavit in this case to suggest to the panel that the telephone in the lounge was a public telephone. We simply do not find in the statute the investigative and two-step finding process which the defendant urges. The language of the panel, which tracked the language of the statute and added the caveat, “if applicable,” was quite proper. In State v. Levine, 5 Conn. App. 207, 209, 497 A.2d 774, cert. denied, 197 Conn. 816, 500 A.2d 1337 (1985), we held that a panel’s finding, which was in the alternative and tracked the statutory language, was proper. A panel’s finding which is in the subjunctive and tracks the statutory language is equally proper.

Second, the evidence adduced by the defendant at the hearing on this motion to suppress could not, even if taken as true, establish that any of the extensions of the tapped telephone facility in the lounge was a “public” facility as that term is used in General Statutes § 54-41d. That evidence is as follows: The lounge was a bar open to the public. There were three telephones in the lounge, all of which were extensions of number 666-4653. One of the telephones was in the kitchen, one was located behind the bar and one was located at the bar. The telephone in the kitchen was available for use upon request by regular patrons for private conversations. The telephone located behind the bar was used for business and was not generally available for use by patrons of the bar. The telephone at the bar was generally available for use by patrons, usually, but not always, upon request to the bartender. This telephone had a sign on it which stated, “Local calls only. Three minute limit.” On occasion a person would enter the bar and use this telephone without purchasing a drink.

The word, “public,” must be interpreted according to its use in context. 73 C.J.S. 330, Public. One of its usual meanings as an adjective is, “operated for the benefit of the public, rather than for the benefit of a private individual, and it means the public generally has the free and unrestricted right to use it.” (Footnotes omitted.) Id., 331. “Public” means “accessible to or shared by all members of the community.” Webster’s Third International Dictionary. It is clear that this is the sense which the legislature intended by its reference in General Statutes § 54-4 Id to “public” telephone facilities.

One does not ordinarily consider a telephone leased to a private commercial establishment, even an establishment which is open to the public as in this case, and made available principally to the establishment’s patrons, as a public telephone. Statutory words and phrases, which are neither technical nor words and phrases of art, are construed “according to the commonly approved usage of the language . . . .” General Statutes § 1-1 (a). This reading is buttressed by the scant legislative history relating to General Statutes § 54-41d (7), which suggests that the legislature used the phrase in its conventional, commonly understood sense. See 14 S. Proc., Pt. 2, 1971 Sess., p. 903 (Remarks of Senator Romeo G. Petroni, envisioning a public telephone facility as one located in a railroad station and used by thousands of people.)

In this case, none of the telephone extensions in the lounge was a “public” telephone facility. Although they were available to various patrons of the lounge within certain limitations set by the owner of the lounge, and although on occasion nonpatrons would use one of them within the same limitations, there was no showing here that the public had a free and unfettered right to use them, and that they were accessible to or shared by all members of the public.

B

THE DEFENDANT’S CLAIM OF FACIAL INVALIDITY OF THE ORDER

The defendant claims that the wiretap order was facially invalid. This claim has two facets: (1) the order of the panel contains findings in the alternative, some of which are inconsistent with each other; and (2) the order does not comply with the requirement of General Statutes § 54-41e that the order “be accompanied by a written statement of the issuing panel setting forth in detail its determination made in accordance with the provisions of section 54-41d and the grounds therefor . . . .” We disagree.

The first facet of the defendant’s argument is disposed of by State v. Levine, supra. Specific written findings of the panel in the alternate are findings nonetheless; id.; and the fact that they tracked the statutory language and that some of them may appear inconsistent does not vitiate their validity as findings, as long as they meet the statutory requirements of General Statutes §§ 54-41d and 54-41e.

The second facet of the defendant’s argument is more troublesome, but has also been rejected by us. In State v. Mastrianni, 5 Conn. App. 634, 501 A.2d 772 (1985) (per curiam), we rejected a similar challenge to a wiretap order. We address the defendant’s claim here in less summary fashion, however, because of the recurring nature of the claim.

The wiretap order began by noting that the panel “by unanimous vote . . . orders the interception of the wire communications of [the defendant] and other unknown persons” transmitted over the lounge’s telephone facility. The order then stated, inter alia, as follows: “The panel, pursuant to Section 54-41d, of the General Statutes, has unanimously determined on the basis of the facts submitted by the applicant in [Drescher’s affidavit] that there is probable cause to believe” that the nine determinations of probable cause required by General Statutes § 54-41d existed. The order also contained all the specifications required by General Statutes § 54-41e (1) through (11), and specifically addressed the contents of a wiretap order required by the remainder of General Statutes § 54-41e, such as the time of its execution, the minimization requirement, and technical assistance by the telephone company. Reading the order together with the application and its supporting affidavit, to which the order specifically referred, renders the factual and legal bases of the order quite clear. We conclude that such a reading satisfied in this case the requirement of General Statutes § 54-41e that the wiretap order “be accompanied by a written statement of the issuing panel setting forth in detail its determination made in accordance with the provisions of section 54-4M and the grounds therefor . . . .”

There can be no quarrel with the fact that the wiretap order was accompanied by a written statement of the panel which set forth in detail its determinations of probable cause as required by General Statutes § 54-41d. The order particularly addressed each of the nine probable cause determinations required by that section. The defendant’s argument must therefore focus on the language of General Statutes § 54-41e that the panel’s written statement set forth “in detail . . . the grounds therefor . . . .”

“A statute, even [our wiretap statute] which has been held to be subject to strict construction; State v. Formica, [3 Conn. App. 477, 481, 489 A.2d 1060, cert. denied, 196 Conn. 806, 494 A.2d 903 (1985)]; must be read with common sense, so as to accomplish a reasonable result and not to thwart its purpose.” State v. Ralston, 7 Conn. App. 660, 682, 510 A.2d 1346 (1986). The purpose of the statutory requirement that the panel set forth in detail its grounds for the issuance of the order is two-fold: (1) to ensure that the panel will give its full attention to the issue of whether an order should issue; and (2) to permit a reasonable review by the trial court or an appellate court of the propriety of the order. The first purpose is fulfilled by the signed statement of the panel that it “has unanimously determined on the basis of the facts submitted by the applicant in [Drescher’s affidavit] that there is probable cause to believe that” the nine requirements of General Statutes § 54-41 d were met. The second purpose is fulfilled by the fact that a reviewing court has before it both the detailed order of the panel and the application together with the supporting affidavit. Just as an ordinary search warrant must not be read in a vacuum but must be evaluated together with its accompanying application and affidavit; see State v. Santiago, 8 Conn. App. 290, 304-305, 513 A.2d 710 (1986); so must a wiretap order be evaluated together with its accompanying application and affidavit. See United States v. Tortorello, 480 F.2d 764, 781 (2d Cir.), cert. denied, 414 U.S. 866, 94 S. Ct. 63, 38 L. Ed. 2d 86 (1973); Moore v. United States, 461 F.2d 1236, 1238 (D.C. Cir. 1972).

This reading of General Statutes § 54-41e regarding the contents of the order is buttressed by reference to its legislative history. That history makes it clear that the legislature, in enacting the wiretap statute, intended the procedure of issuance of a wiretap order to be analagous to that of issuance of a search warrant, enhanced, however, by the additional safeguards inherent in the requirement that the order issue only upon the unanimous determination of three judges, unlike a search warrant which is authorized by a single judge. The issuance of a search warrant by a judge requires only that, after making a common sense determination based on the application and affidavit presented to him, probable cause exists; State v. Telesca, 199 Conn. 591, 603, 508 A.2d 1367 (1986); the judge sign the search warrant. It is not required of the issuing judge that he also produce a memorandum of decision or other written statement explaining further the basis of that common sense judgment. We do not believe that General Statutes § 54-41a requires more from the three-judge wiretap panel.

The defendant’s argument would require a panel to do more than to state its unanimous determination that probable cause exists based on the material presented to it, to state in detail its findings of probable cause as to the nine factors specified in General Statutes § 54-41d, and to state its determination as to the additional matters covered by General Statutes § 54-41e. The defendant would in effect require the panel to draft and agree unanimously on a memorandum of decision somehow spelling out its reasons as to all nine factors specified in General Statutes § 54-41d. This reading of General Statutes § 54-41e misperceives the nature of a memorandum of decision regarding a probable cause determination, would not comport with common sense, would lead to an unreasonable result and would thwart the purpose of the wiretap statutory scheme. State v. Ralston, supra.

When a reviewing court, such as a trial court acting on a motion to suppress or an appellate court reviewing a trial court’s decision on such a motion, issues a written decision in response to a defendant’s challenge to the validity of a wiretap order, it ordinarily does so in response to specific claims of defect. Thus, the issues addressed by the court are necessarily confined by the nature of the claims of defect. The defendant’s argument would require the panel to construct a written memorandum of decision in the absence of any such claims of defect and, presumably, to anticipate them before they are even made. We cannot attribute to the legislature the intent to create such an unprecedented and bizarre judicial procedure. See Connecticut Natural Gas Corporation v. DPUC, 1 Conn. App. 1, 4, 467 A.2d 679 (1983).

Furthermore, such a requirement would undoubtedly require time, a commodity which is ordinarily in short supply when the need for a wiretap is demonstrated. Several of the probable cause determinations required by General Statutes § 54-41d involve findings which focus on timeliness. Subsection (1) of General Statutes § 54-41d requires a finding that an “individual ... is committing an offense enumerated in section 54-41b”; subsection (2) requires a finding that “particular communications will constitute material evidence that [such] an offense . . . is being committed”; and subsection (5) requires a finding that the tapped facilities or their location “are being used, or are about to be used, in connection with the commission of such an offense . . . .’’It takes little imagination or understanding of the process of gaining considered unanimity among three judges to the contents and wording of a decision, to realize that, while that process is taking place, the bases of those findings could evaporate. Thus, the defendant’s argument would thwart a principal purpose of the wiretap scheme, namely, to permit the apprehension, under appropriate safeguards, of persons who have committed or are committing the crimes specified in General Statutes § 54-41b. Indeed, the defendant’s proposed reading of General Statutes § 54-41d would in all likelihood produce wiretap orders issued upon bases that no longer exist, and thus would run counter to the “legislative concern that wiretap orders not issue based on stale information.” State v. Ralston, supra, 683.

C

THE DEFENDANT’S CLAIM THAT THE STATE’S ATTORNEY WAS UNAUTHORIZED TO APPLY

The defendant’s third attack on the validity of the wiretap order is that the state’s attorney for the judicial district of Hartford-New Britain was not an authorized applicant for a wiretap order because he was not a “principal prosecuting attorney of any political subdivision” of the state within the meaning of 18 U.S.C. § 2516 (2). This argument is without merit.

The basic authority of the states to conduct wiretapping derives from chapter 119 of the United States Code, entitled “Wire Interception and Interception of Oral Communications.” The interception and use of wire communications is deemed to be illegal unless specifically authorized by that chapter. 18 U.S.C. § 2511. Section 2516 (2) of title 18 of the United States Code permits “[t]he principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State,” to apply for a wiretap order. (Emphasis added.) Pursuant to General Statutes § 54-41b either “[t]he chief state’s attorney or the state’s attorney for the judicial district in which the interception is to be conducted may make application” to the judicial wiretap panel

The defendant argues that since county government was abolished in Connecticut effective October 1,1960, the state’s attorney for the Hartford-New Britain judicial district is an official of the judicial district and not of a county, and that a judicial district is merely a geographical division without powers of legislation, taxation, appropriation or self-government. Therefore, he claims, a judicial district is not a “political subdivision” within the meaning of 18 U.S.C. § 2516 (2). We disagree.

It is clear from the legislative history of 18 U.S.C. § 2516 (2) that the term, “political subdivision,” was not used in any literal sense but was meant to focus on the function of law enforcement. “The important question, however, is not name but function. The intent of the proposed provision is to provide for the centralization of policy relating to statewide law enforcement in the area of the use of electronic surveillance in the chief prosecuting officer of the State. Who that officer would be would be a question of State law. Where no such office exists, policymaking would not be possible on a statewide basis; it would have to move down to the next level of government. In most States, the principal prosecuting attorney at the next political level of a State, usually the county, would be the district attorney, State’s attorney or county solicitor. The intent of the proposed provision is to centralize area-wide law enforcement policy in him. Who he is would also be a question of State law. Where there are both an attorney general and a district attorney, either could authorize applications, the attorney general anywhere in the State and the district attorney anywhere in his county. . . . State legislation enacted in conformity with this chapter should specifically designate the principal prosecuting attorneys empowered to authorize interceptions.” Senate Report, No. 1097, U.S. Code Congressional and Administrative News, 90th Congress, 2d Sess. (1968) 2112, 2187.

This reading of the federal use of the term is fully consistent with Connecticut law. That law makes clear that “political subdivision” is a comprehensive term which refers to any division of the state made for the purpose of carrying out public governmental functions. State ex rel. Maisano v. Mitchell, 155 Conn. 256, 263, 231 A.2d 539 (1967). Certainly, the function of law enforcement, which our statutes have lodged in the offices of both the chief state’s attorney and the various state’s attorneys for the judicial districts, is such a function.

Indeed, in 1971, when our wiretap statute was first enacted, only the state’s attorneys were authorized to make applications. See General Statutes (Rev. to 1972) § 54-41b. The office of chief state’s attorney was not created until 1973. Public Acts 1973, No. 73-122, § 27. Thus, the defendant’s argument would have rendered our wiretap statute a two-year nullity. We cannot ascribe the intention to create such a bizarre result to either the United States Congress or to the Connecticut legislature.

II

The Defendant’s Evidentiary Claims

The defendant makes three evidentiary claims of error. We find no merit to any of them.

A

The defendant claims that the court erred by admitting into evidence a copy of the order by the judicial panel to the telephone company requiring the company to provide technical assistance to the state in placing the wiretap. The defendant’s objection was that the exhibit was hearsay, that the statutory business entry exception to the hearsay rule was not complied with, and that the’.Mbit was irrelevant. The court overruled the defendant’s objection and the defendant duly excepted.

On appeal, the state concedes that it did not establish at trial all the necessary prerequisites of the business entry statute. We agree with the state, however, that the exhibit was properly admitted on other grounds.

The business entry statute; General Statutes § 52-180; creates an exception to the hearsay rule. See Schwarz v. Waterbury Public Market, Inc., 6 Conn. App. 429, 435, 505 A.2d 1272 (1986). Hearsay is an out of court statement offered to establish the truth of the facts contained in the statement. Vazzano v. Slater, 6 Conn. App. 1, 6, 502 A.2d 440 (1986). This exhibit was not hearsay, because it was not offered for the truth of any facts contained in it; it was offered as a judicial directive to the telephone company to render technical assistance.

The sole question on appeal, therefore, is whether the exhibit was relevant and, if so, whether its relevance outweighed the claimed prejudicial effect. Prior to the admission of the exhibit, a telephone company representive had testified to the actions of the telephone company in rendering assistance to the police in intercepting telephone calls. Such conduct would be criminal if not specifically authorized. 18U.S.C. § 2511; General Statutes § 53a-189. The order was clearly relevant in order to establish that the telephone company was acting within the law. The defendant has not established the kind of prejudice necessary to persuade us that the trial court abused its broad discretion in admitting the exhibit.

B

The defendant’s second evidentiary claim is a three-pronged challenge to the admission of the tape recordings of his intercepted telephone conversations. We reject this claim.

The defendant first argues that the tapes were admitted without sufficient authentication that they were fair and accurate reproductions of the intercepted conversations. Despite the unsupported assertion in his brief that he made this claim at the trial, he has not pointed to any transcript reference where he did so. Nor has he replied to the state’s argument in its brief and at oral argument that he made no such objection at the trial. Under these circumstances, therefore, we decline to review this prong of the defendant’s claim. Osborne v. Osborne, 2 Conn. App. 635, 641, 482 A.2d 77 (1984).

In this regard, the defendant also argues that the state did not sufficiently establish the chain of custody of the tapes so as to preclude the likelihood of tampering. It is not necessary to review this claim at any length. Suffice it to say that the trial court had ample evidence to support a finding of a reasonable probability that the tapes were not changed in significant respects. State v. Heinz, 1 Conn. App. 540, 544-45, 473 A.2d 1242, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984).

The defendant next argues that the tapes were not sealed in the time and manner required by General Statutes § 54-4U. That statute provides in pertinent part as follows: “The recording of the contents of any wire communication in accordance with the provisions of this section [requiring that intercepted communications be recorded, if possible] shall be done in such manner as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the panel issuing such order and sealed under its directions and custody of such recordings shall be wherever the panel so directs.”

The hearing held by the trial court on this issue disclosed the following: Drescher monitored the wiretaps, which took place on October 20, 21 and 22, 1979, and made separate daily recordings of the intercepted conversations. He sealed each tape in a box with a fiber sealing tape, and sealed each box in a manila envelope with the same fiber tape. He kept the tapes of the October 20 and 21 conversations in his possession until October 22, when he delivered them to the criminal intelligence unit of the state police. He kept the tape of the October 22 conversations in his possession until October 23, when he delivered it to the criminal intelligence unit. On November 7,1979, the criminal intelligence unit made copies of the tapes and delivered the originals on November 9,1979, to Carl Testo, who was then the secretary to the judicial wiretap panel.

The evidence further established that the reason for the delay between October 23,1979, and November 9, 1979, was as follows: Detective Thomas Brady of the criminal intelligence unit received the tapes from Drescher and kept them in a special vault until they were copied. At that time, Brady had a new partner who was attending school in Florida and Brady’s unit was also busy working on three other wiretaps. Therefore, the tape in question could not immediately be copied and delivered to Testo.

When the tapes were delivered to Testo they were in envelopes which were sealed with a fiber tape. Testo did not open the envelopes. He signed his name, as secretary of the panel, along the edge of the sealing tape on each envelope, wrote the date on the envelope, and placed the envelopes in a vault designated for the use of the panel. He did all this pursuant to established procedures for handling wiretap material. He knew of no formal vote or written regulation of the panel establishing this procedure. In 1983, Testo was replaced as secretary to the wiretap panel by Daniel Horwitch, who was the secretary at the time of the trial of this case in 1984. During the time from November 9, 1979, through the time of trial only Testo and Horwitch, as secretaries to the panel, had access to the vault which contained the tapes.

The defendant claims (1) that the sealing of the tapes was not in accordance with the statute, (2) that they were sealed too late, and (3) that they were delivered to an unauthorized person. We disagree.

We agree with the defendant that the statute requires that the tapes be sealed upon receipt by the panel’s custodian. We do not agree, however, that the provision of the statute, namely, that the tapes be “sealed under [the panel’s] directions,” mandates that those directions be in any particular form. Those directions may be evidenced, as they were here, by an established procedure which bears more than ample indicia of safety and reliability. Testo received them in a safely sealed condition, adopted that sealing as his own by signing his name and the date along the edge of the sealing tape, and kept them in a designated, restricted and secure vault. Horwitch continued that process when he assumed his duties as secretary to the panel. This procedure comported with the sealing requirements of the statute.

With respect to the defendant’s claim of delay in transmission of the tapes from the police to Testo, the defendant concedes that the word, “immediately,” means without unreasonable delay, considering the nature of the task to be performed. Bailey v. Bruneau’s Truck Service, Inc., 149 Conn. 46, 52, 175 A.2d 372 (1961); Krattenstein v. Thomas, 7 Conn. App. 604, 609, 509 A.2d 1079 (1986). The federal wiretap statute contains language essentially identical to our statute. “Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions.” 18 U.S.C. § 2518 (8) (a). That statute has been interpreted to mean that any delay beyond one or two days calls for a satisfactory explanation. United States v. Vasquez, 605 F.2d 1269, 1278 (2d Cir.), cert. denied, 444 U.S. 981, 100 S. Ct. 484, 62 L. Ed. 2d 408 (1979); United States v. Fury, 554 F.2d 522, 533 (2d Cir. 1977), cert. denied, 436 U.S. 931, 98 S. Ct. 2831, 56 L. Ed. 2d 776 (1978) (where there is reasonable basis for delay, failure to seal “immediately” does not require suppression of evidence). We agree with the trial court’s findings in this case that the delay of sixteen days between October 23, 1979, and November 9,1979, was reasonable, and we agree that the explanation was satisfactory. See United States v. Vasquez, supra (delay of seven to thirteen days held reasonable upon satisfactory explanation).

The defendant’s final challenge to the admission of the tapes is that Testo was not an authorized custodian of the tapes because there was no written directive or authorization to him to perform that function. This argument is without merit. The statute does not mandate that the authorization be in any particular form. The trial court found, on the basis of Testo’s testimony, that he had the requisite authority. Public officials are presumed, in the absence of evidence to the contrary, to have performed their functions lawfully. Patry v. Board of Trustees, 190 Conn. 460, 477, 461 A.2d 443 (1983). The trial court’s finding was not clearly erroneous.

c

The defendant’s final evidentiary claim is that the trial court erred in restricting his cross-examination of Drescher. This claim requires little discussion.

Drescher was able to identify the defendant’s voice on each tape because he had heard the defendant speak in the lounge several times, albeit not over the telephone. On cross-examination the defendant sought to challenge the credibility of Drescher’s identification of the defendant’s voice by asking Drescher to identify other voices on the tapes. The court sustained the state’s objection, and the defendant excepted.

There was no showing that Drescher had heard any of the other voices, which the defendant sought to have him identify, before hearing them on the tapes. Thus, it would have been a fruitless venture to ask him to identify them, and would have offered the jury nothing as a basis on which to test the credibility of his identification of the defendant’s voice on the tapes. Under these circumstances, the court’s ruling neither deprived the defendant of his constitutional right of cross-examination nor was it an abuse of the court’s discretion in limiting that cross-examination.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 54-41b provides in pertinent part that a wiretap application may be made by “[t]he chief state’s attorney or the state’s attorney for the judicial district in which the interception is to be conducted . . . .”

       The reproduced trial court record supplied to us in this appeal does not indicate on its face any action by the court on the third motion to suppress, nor does the defendant in his brief supply a transcript reference to any oral decision by the trial court. See Practice Book § 3060F (c). The state does not deny in its brief, however, that the court addressed the motion and denied it. We therefore treat the motion as denied, and as briefed by the parties in this court.

       At oral argument in this court, the defendant, for the first time, suggested that the word, “facilities,” as used in General Statutes § 54-41d, refers, not to the telephonic or other apparatus of wire communications sought to be tapped, but to the physical place in which the apparatus is located. Thus, he would have us focus our inquiry on whether the lounge, rather than its telephone, was public. This argument is disingenuous at best. Examination of chapter 959 of the General Statutes, entitled “Wiretapping and Electronic Surveillance,” of which General Statutes § 54-42d is a part, makes it absolutely clear that the words, “facilities” and “facility,” mean the electronic apparatus and not the real estate. See, e.g., General Statutes § 54-41a (1) (“ ‘Wire Communication’ means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of telephone or telegraph”); General Statutes § 54-41a (3) (“ ‘Electronic, mechanical or other device’ means any device or apparatus which can be used to intercept a wire communication other than (A) any telephone or telegraph instrument, equipment or facility, or any component thereof (i) furnished to the subscriber or used by a communications common carrier in the ordinary conduct of its business”). Furthermore, the defendant in his brief clearly and repeatedly uses the term “facility” in its proper statutory sense.

       There was also a pay telephone in the lobby of the lounge which is not involved in this case.

       Senator Jay W. Jackson stated: “In effect, we have a search warrant procedure which will be done by the three judges. I think that the three judge panel will give the protection which is needed. You will have reasoning on the part of the three judges and you will not have a precipitous claim made by a law enforcement official to an individual judge who may perhaps, not be able to give adequate consideration to the application. . . . I would also point out that the three judge panel, must be unanimous before any wiretap can be instituted.” 14 S. Proc., Pt. 2, 1971 Sess., p. 870.
      Representative Albert W. Cretella, Jr., stated: “I point out that in effect a wiretap as it is being used in this bill, has the same effect as a search warrant.” 14 H. Proc., Pt. 2, 1971 Sess., p. 845.

       It is of no moment, moreover, that the initial version of the wiretap statute referred to the applicant as “[t]he state’s attorney for the county in which the interception is to be conducted”; (emphasis added), General Statutes (Rev. to 1972) § 54-41b; because the counties have been no more than geographical subdivisions of the state without governmental functions since 1960.


author: Per Curiam.

text:
    City of Stamford v. Local 2657, Council 4, AFSCME
    (4354)
    Dupont, C. J., Hull and Spallone, Js.
    Argued June 6
    decided July 8, 1986

      Deborah M. Steeves, assistant corporation counsel, with whom, on the brief, was Jay H. Sandak, corporation counsel, for the appellant (plaintiff).

      J. William Gagne, Jr., with whom, on the brief, was Barbara J. Collins, for the appellee (defendant).
   Per Curiam.

There is no error.


author: WEST, J.

text:
    AFSCME, COUNCIL 4, LOCAL 704 v. DEPARTMENT OF PUBLIC HEALTH
    (AC 23084)
    Dranginis, Bishop and West, Js.

      Argued May 5
    officially released October 21, 2003

      J. William Gagne, Jr., with whom, on the brief, were Kimberly A. Cuneo and P. Jo Anne Burgh, for the appellant (plaintiff).

      Thomas P. Clifford III, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

WEST, J.

The plaintiff, Local 704 of Council 4, American Federation of State, County and Municipal Employees (union), appeals from the judgment of the trial court denying its application to vacate an arbitration award as untimely. The union claims that the court improperly concluded (1) that it was proper for the arbitrator to render an award after both the statutory and contractual deadlines had passed, and (2) that the union had in fact waived the issue of timeliness. We reverse the judgment of the trial court.

The court’s memorandum of decision provides the following facts. The union requested arbitration of a grievance against the defendant department of public health (department) pursuant to § 9 (c) of the collective bargaining agreement (agreement) between the union and the state of Connecticut. That section provides in relevant part: “The Arbitrator shall render his/her decision in writing no later than thirty (30) calendar days after the conclusion of the hearing unless the parties mutually agree otherwise.”

The arbitrator conducted hearings from May 5 through August 29,2000, and the parties submitted post-hearing briefs on unspecified dates thereafter. On January 3, 2001, the arbitrator was informed by a letter signed by both parties that the agreement’s thirty day time restriction for an award had passed and that his services in the matter were therefore terminated. The arbitrator’s January 5,2001 letter of response addressed both parties and requested an extension from each, stating: “I have never had the parties refuse to extend a deadline for an award to be due.”

On January 16, 2001, the union sent a letter to the arbitrator and granted his request for an extension. The arbitrator rendered his award on the same day, January 16, 2001, finding against the union’s position. The department did not respond to the arbitrator’s request for an extension before he rendered the award. The union then sought to vacate the award by application to the court dated February 7,2001, pursuant to General Statutes § 52-418, arguing that the arbitrator had exceeded his authority by issuing an award after the contractual deadline had passed in the absence of a mutual agreement for an extension from the parties. On November 6, 2001, the department filed a motion to confirm the arbitration award.

In its memorandum of decision, filed April 11, 2002, the court denied the union’s application to vacate, concluding that the parties had waived the agreement’s deadline by failing to inform the arbitrator of its existence. The court also determined that the union’s January 16, 2001 letter operated as a waiver of its right to challenge the timeliness of the award. The union then asked the court to clarify whether the April 11, 2002 decision controlled with respect to the department’s motion to confirm the arbitration award. On May 1, 2002, the court rendered judgment in accordance with the arbitration award pursuant to the April 11, 2002 decision.

I

The union claims that the court improperly denied its application to vacate the award because the deadline had passed under General Statutes § 52-416 and the agreement, without a valid extension from the parties, and because the parties had taken joint action to discharge the arbitrator pursuant to the agreement. We agree that the award must be vacated as untimely under the agreement and address that issue in three parts: (1) whether § 52-416 applies, (2) the court’s conclusion that the parties jointly waived the agreement’s deadline, and (3) whether the department and the union “mutually” had agreed to an extension under the agreement.

First we set forth our standard of review. Arbitration is a creature of contract, circumscribed by statute. If the parties choose to set limits on the arbitrator’s powers, then the parties will be bound by those limits. Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 20, 453 A.2d 1158 (1983). The arbitration clause in the agreement constitutes the written submission to arbitration. The agreement for submission constitutes the charter for the entire ensuing arbitration proceedings. Vail v. American Way Homes, Inc., 181 Conn. 449, 451, 435 A.2d 993 (1980).

When arbitration is consensual, the scope of judicial review is generally limited to the concerns listed in § 52-418 (a). Diamond Fertiliser & Chemical Corp. v. Commodities Trading International Corp., 211 Conn. 541, 546-47, 560 A.2d 419 (1989). It is axiomatic that any challenge to an award under § 52-418 (a) (4), on the ground that the arbitrator exceeded his powers, is limited to a comparison of the award with the submission. Wolf v. Gould, 10 Conn. App. 292, 296, 522 A.2d 1240 (1987). An award will be vacated under § 52-418 (a) (4) if the arbitrator has rendered an untimely award. See Marsala v. Valve Corp. of America, 157 Conn. 362, 369-70, 254 A.2d 469 (1969).

“Because the parties have consented to arbitration and have framed the issues to be arbitrated, in reviewing the arbitration award we will make every reasonable presumption in favor of the arbitration award and the arbitrator’s acts and proceedings.” (Internal quotation marks omitted.) Diamond Fertiliser & Chemical Corp. v. Commodities Trading International Corp., supra, 211 Conn. 547. The union, as the party challenging the award, carries the burden of demonstrating that the award violates the parties’ agreement. See O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, 203 Conn. 133, 145-46, 523 A.2d 1271 (1987).

We conclude that the union has met its burden. The parties do not contest that the arbitrator was discharged for failure to render a timely decision pursuant to their agreement. The court’s factual conclusion that the parties had jointly waived the deadline is clearly erroneous. Moreover, on the basis of the facts and our construction of the agreement, the department did not “mutually agree” to extend the time in which the award was to be rendered. Therefore, we hold that the award must be vacated under § 52-418 (a) (4) because the arbitrator exceeded his powers by issuing a late award without a mutual agreement from the parties to extend the deadline.

A

The union claims that the court improperly denied its application to vacate the award because the arbitrator rendered his decision after the deadline pursuant to § 52-416 had passed without a valid extension from the parties. The union reasons that if the arbitrator was unaware of the time frame set out in the agreement, then the statute came into play and signaled its own binding restrictions on him.

The court found, pursuant to § 52-416, that the parties had exercised their power to impose their own deadlines and extension requirements in the agreement in place of the default statutory terms. Therefore, it reasoned, the agreement controlled on the issue of timeliness. We agree.

Arbitration is a creature of contract. If the parties choose to set limits on the arbitrator’s powers, then the parties will be bound by those limits. Carroll v. Aetna Casualty & Surety Co., supra, 189 Conn. 20. Section 52-416 provides the following condition on the applicability of the statutory thirty day limit: “If the time within which an award is rendered has not been fixed in the arbitration agreement . . . .” General Statutes § 52-416 (a). That proviso renders the applicability of § 52-416 entirely contingent on the agreement’s silence with respect to the deadline for the award and the requirements for a valid extension. See Administrative & Residual Employees Union v. State, 200 Conn. 345, 348-49, 510 A.2d 989 (1986). Where the arbitration agreement contains language about the issues of timing and extension, § 52-416 is not applicable. The statute applies only when the agreement does not specify the time within which the award must be rendered. See C.F. Wooding Co. v. Middletown Elk’s Home Corp., 177 Conn. 484, 486, 418 A.2d 904 (1979).

The court found that the agreement clearly stated that the arbitrator “shall render his/her decision in writing no later than thirty (30) calendar days after the conclusion of the hearing unless the parties mutually agree otherwise.” The agreement expressly addresses the timing and extension issues and, therefore, precludes the invocation of § 52-416. The court’s additional finding of a joint waiver of the contractual time frame by the parties, and its effect on the contract, is a separate concern that we will address in part B. We must look to the agreement, however, to determine whether the arbitrator exceeded his authority in rendering a late award.

B

The union claims, in the alternative, that pursuant to the agreement, the arbitrator could not render the award thirty days after the hearings had concluded because the parties jointly had terminated his services.

The court found that the parties had agreed to waive, and thereby to extend, the time requirement of the agreement by allowing the arbitrator to proceed in ignorance of the deadline. We disagree.

Waiver is a question of fact. New York Annual Conference v. Fisher, 182 Conn. 272, 300, 438 A.2d 62 (1980). We will not disturb the court’s factual findings unless they are clearly erroneous. Naftzger v. Naftzger & Kuhe, Inc., 26 Conn. App. 521, 526, 602 A.2d 606 (1992). “[W]here 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 conclusions of the court “must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case.” Laske v. Hartford, 172 Conn. 515, 518, 375 A.2d 996 (1977).

The doctrine of waiver precludes parties from anticipating a favorable decision while reserving the right to impeach it or to set it aside if it happens to be against them for a cause it knew well in advance of the unfavorable decision. See Krattenstein v. G. Fox & Co., 155 Conn. 609, 616, 236 A.2d 466 (1967). Failure to raise the issue of timeliness prior to the issuance of an arbitration award operates as a waiver of the right to object to the award as untimely. AFSCME v. New Britain, 206 Conn. 465, 468, 538 A.2d 1022 (1988). A party has been found to have waived its right to object to the timeliness of the award by failing to object after being notified of the approximate date on which the award would be rendered. See Diamond Fertiliser & Chemical Corp. v. Commodities Trading International Corp., supra, 211 Conn. 554. The parties have been found to have waived their right to object to an untimely award by consenting to the arbitrators’ delayed meetings and manifesting an agreement that the award would be delayed. See Capozzi v. Liberty Mutual Fire Ins. Co., 32 Conn. App. 250, 256, 629 A.2d 424 (1993), aff'd, 229 Conn. 448, 642 A.2d 1 (1994).

In this case, in support of its conclusion that the parties mutually had waived the agreement’s time requirements, the court stated that the submission did not impose or disclose the deadline, that the parties did not disclose it during the course of the arbitration proceedings and that the union’s January 16, 2001 letter acknowledged the arbitrator’s ignorance of the deadline.

The court’s finding that the parties jointly waived the contractual deadline is clearly erroneous. The arbitrator’s January 5, 2001 plea for an extension reveals that he was not aware of the agreement’s thirty day deadline. That provision, however, was not hidden away in the agreement. Rather, the subject of timeliness and the arbitrator’s powers in general occupies the entire § 9 (c) of the agreement. The parties took the time to write that provision clearly into the agreement. The arbitration clause in a contract constitutes the charter for the entire ensuing arbitration proceedings. Vail v. American Way Homes, Inc., supra, 181 Conn. 451. When the thirty days passed, the parties sent a joint letter discharging the arbitrator for failure to comply with the provision. That action showed a clear- acknowledgement and enforcement of the term, not a joint waiver thereof.

The January 16, 2001 letter from the union acknowledges only that the parties never informed the arbitrator of the deadline. It stated: “A review of my notes and the exhibits rellectfs] that (the deadline) was not brought to your attention .... Therefore, your request for an extension is granted.” Nowhere was it stated that the parties never imposed the deadline. Obviously, that could not have been true because the parties together already had discharged the arbitrator for failure to comply with the thirty day provision. The willingness to forgive by one party did not change the fact that the deadline had passed or the fact that the arbitrator already had been discharged by both parties for that reason.

Unless the parties, by their conduct, modified the joint discharge by agreeing to receive the late award, the discharge controls. For a valid modification of the joint discharge to have occurred, there must have been mutual assent to the meaning and conditions of the modification, and the parties must have assented “to the same thing in the same sense.” (Internal quotation marks omitted.) Herbert S. Newman & Partners, P.C. v. CFG Construction Ltd. Partnership, 236 Conn. 750, 761-62, 674 A.2d 1313 (1996).

In this case, although both parties expressed a willingness to receive the award after the joint discharge was issued, they did so under entirely different circumstances. The union agreed to receive the late award before the award was rendered, taking the chance that the award might turn out against the union’s interests. The department expressed a willingness to receive the award only after it was issued and after the department knew that the award was favorable. That is not a scenario in which two parties mutually assented to a modification of an agreement, by their conduct, in the same sense. See id., 762.

The court’s reliance on Board of Education v. AFSCME, Council 4, Local 287, 195 Conn. 266, 487 A.2d 553 (1985), is misplaced. The court cited that case for the proposition that when the collective bargaining agreement imposes no obligation on the arbitrator to render an award within a specific time period, and the parties do not request a decision by a specific date, the parties effectively have waived the claim of untimeliness. In Board of Education, the court read the express terms of the agreement to require a request from one or both parties to start the clock on the timeliness of the award. In this case, however, the parties imposed a mandatory time restriction. The agreement stated nothing about the necessity of a request from a party to start the clock.

The parties could not have been more clear about their desire to enforce the deadline as it was written in the agreement. The joint January 3,2001 letter stated: “As you have failed to comply with the contractual requirement to render a decision within thirty (30) days, any decision you render will be void. You have failed to request an extension.” This is not a case where an otherwise valid objection was reserved until after the award was rendered in an attempt to manipulate the arbitration process. See Diamond Fertiliser & Chemical Corp. v. Commodities Trading International Corp., supra, 211 Conn. 554. Having determined the court’s finding of mutual waiver to be clearly erroneous, we will next discuss the related question of whether the parties “mutually” agreed to an extension.

C

The resolution of the claim that the arbitrator lacked the authority to issue his award depends on a closer examination of the agreement. The department offers the alternative proposition that it “mutually” agreed to an extension of the deadline. It argues that pursuant to the agreement, it “mutually” agreed to accept the late award by remaining silent when the union expressly granted the extension and by then seeking to confirm the award. We disagree.

We begin by setting forth our standard of review. If the language of a contract is definitive of the parties’ intent, then its inteipretation is a question of law for the court. B & D Associates, Inc. v. Russell, 73 Conn. App. 66, 71, 807 A.2d 1001 (2002). A presumption that the language is definitive arises when the contract is between sophisticated parties and commercial in nature. Best Friends Pet Care, Inc. v. Design Learned, Inc., 77 Conn. App. 167, 176, 823 A.2d 329 (2003). An appellate court’s review, in such a case, is plenary. Id.

“Arbitration agreements are contracts and their meaning is determined . . . under accepted rules of [state] contract law . . . .” (Internal quotation marks omitted.) Levine v. Advest, Inc., 244 Conn. 732, 745, 714 A.2d 649 (1998). Contractual language is interpreted according to a fair and reasonable construction of the written words, and the language used must be accorded its common, natural and ordinary meaning and usage. Southington v. Commercial Union Ins. Co., 71 Conn. App. 715, 725-26, 805 A.2d 76 (2002). A contract must be construed to effectuate the intent of the parties, derived from the language of the contract, interpreted in light of the situation of the parties and the circumstances connected with the transaction. Pesino v. Atlantic Bank of New York, 244 Conn. 85, 91, 709 A.2d 540 (1998). In giving meaning to the language of a contract, an appellate court presumes that the parties did not intend to create an absurd result. New England Savings Bank v. FTN Properties Ltd. Partnership, 32 Conn. App. 143, 145, 628 A.2d 30 (1993).

We conclude that “mutually agree” does not mean the ability to remain silent while the other party to the contract grants an express extension of the deadline. It is simply not reasonable to argue that the parties intended a result when one party could agree to receive a late award after it had had the opportunity to see if the award was favorable. The department had from January 5, 2001, the day it received the arbitrator’s plea for an extension, to January 16, 2001, the day the union consented and the award was rendered, to express its consent to an extension.

We are bolstered in our interpretation of the agreement by the policy against permitting parties to anticipate a favorable decision while reserving a right to impeach it or to set it aside for a cause that was known to them long before trial if it happens to be against them. See Krattenstein v. G. Fox & Co., supra, 155 Conn. 616. That principle has been extended to the arbitration context. AFSCME v. New Britain, supra, 206 Conn. 468. The same policy extends to the scenario in which, as here, two patties to a collective bargaining agreement act together to discharge an untimely arbitrator and then one remains silent as the other grants a unilateral extension. The silent party cannot take advantage of a favorable award.

Section 52-418 (a) (4) requires a “mutual, final and definite” award as between the parties to the arbitration. Trumbull v. Trumbull Police Local 1745, 1 Conn. App. 207, 218, 470 A.2d 1219 (1984). Such mutuality does not exist when only one party agrees to receive a late award following the termination of the arbitrator by both parties. The department will not be allowed to obtain a confirmation of a favorable award that it never mutually agreed to receive. We can well imagine that the department would cite the joint discharge and the contractual language as grounds to reject the award if it had been rendered in the union’s favor. We cannot permit a free bite at the apple when the parties already had agreed to refuse the fruit of the arbitrator’s labor.

II

The union claims that the court improperly found that it had waived the issue of timeliness because of its January 16, 2001 letter granting an extension. It argues that a unilateral waiver by one party is not effective because the agreement required mutual consent for an extension, and the parties already had agreed to discharge the arbitrator for failure to meet the deadline. We agree.

The situation presented here is different from the usual waiver case in which a party waits until after the late arbitration award is rendered and then objects to it as untimely. In this case, the parties acted promptly, together, to discharge the arbitrator for failure to meet the thirty day provision, as he was expressly required to do. The agreement stated that the parties had to “mutually agree” to extend the deadline. The same terms that preclude the department from remaining silent and seeking to obtain a confirmation of a late award also preclude the union from granting a unilateral extension. If the award were favorable to the union, it also would be unable to obtain a confirmation. Because the agreement required a mutual extension and the parties already had acted to discharge the arbitrator, the union was rescued from its folly.

The union’s hands are not entirely clean in this matter. As the Supreme Court lamented in Marsala v. Valve Corp. of America, supra, 157 Conn. 369, in which a party successfully objected to a late award under the time frame of § 52-416, “[c]ertairily, we find nothing to commend in this plaintiffs conduct . . . .” The union, however, could not possibly have profited from its unilateral extension unless the department mutually agreed to it before the award was rendered.

The judgment is reversed and the case is remanded with direction to render judgment granting the union’s application to vacate the award and denying the department’s motion to confirm the award.

In this opinion the other judges concurred.

       The union framed the statutory and contractual arguments as separate claims in its brief, but we address them as two arguments under a single claim.

       That letter stated in pertinent part: “As you have failed to comply with the contractual requirement to render a decision within thirty (30) days, any decision you render will be void. You have failed to request an extension. Please be advised that since you have not completed the assignment, please do not invoice either party.”

       General Statutes § 52-418 (a) provides in relevant part: “[T]he superior court . . . shall make an order vacating the award ... (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       General Statutes § 52-416 (a) provides: “If the time within which an award is rendered has not been fixed in the arbitration agreement, the arbitrator or arbitrators or umpire shall render the award within thirty days from the date the hearing or hearings are completed, or, if the parties are to submit additional material after the hearing or hearings, thirty days from the date fixed by the arbitrator or arbitrators or umpire for the receipt of the material. An award made after that time shall have no legal effect unless the parties expressly extend the time in which the award may be made by an extension or ratification in writing.” (Emphasis added.)