author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. DANIEL SITKIEWICZ
    (AC 19281)
    Schaller, Spear and Hennessy, Js.
    Argued February 14 —
    officially released July 3, 2001

      Martin J. Minnella, with whom was Tavis O. Tindall, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and John J. Davenport, assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Daniel Sitkiewicz, appeals from the judgment of conviction, rendered after a jury trial, of misconduct with a motor vehicle in violation of General Statutes § 53a-57. The defendant claims that the court improperly denied (1) his motion for a continuance of sentencing pending posttrial discovery and (2) his motion for an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 2 a.m. on September 20, 1997, the defendant and the victim, Eric Robbins, were traveling home in the victim’s car after an evening at Mister Happy’s bar in Waterbury. As the vehicle approached a curve on Thomaston Avenue at a relatively high rate of speed, it veered out of control, crashed into a fire hydrant, flipped end over end and rolled over several times in the parking lot of the state motor vehicles emissions testing building, sustaining heavy damage. In the course of the accident, the roof of the car dug into the ground and dislodged a significant amount of grass and dirt, which scattered throughout the car’s interior. The victim was ejected from the vehicle and subsequently died from severe head injuries. The defendant was trapped inside the vehicle until the accident was discovered and reported approximately three hours later.

Officer Mark Ryan of the Waterbury police department was the first person to arrive at the scene. Although Ryan found the defendant pinned in the driver’s seat, the defendant told Ryan that he had not been driving the vehicle. Thereafter, the defendant told emergency medical technician Robert Farina, who also found the defendant pinned in the driver’s seat, that he had not been driving the vehicle.

To extricate the defendant, the fire department had to remove the roof of the vehicle using a rescue tool known as the “jaws of life.” Even then, emergency personnel initially were unable to pull the defendant out of the vehicle because his thighs were trapped beneath the steering wheel, and his feet were tangled behind the clutch and the brake pedal. Eventually, the defendant was removed from the vehicle and taken to a hospital, where he was treated for his injuries.

The sole issue at trial was whether the defendant or the victim had been driving the vehicle. The defendant claimed that the victim was the driver. The state claimed that the defendant was the driver because he was found pinned in the driver’s seat, the victim’s injuries were consistent with injuries that a person on the passenger side of the vehicle would have suffered, and the defendant’s injuries were consistent with injuries that a driver would have suffered. A jury concluded that the defendant was the driver and found him guilty as charged. This appeal followed.

I

The defendant first claims that the court improperly denied his motion for a continuance of sentencing pending posttrial discovery. He claims that prior to the trial, state inspector James Bart Deeley lied to defense investigator Michael E. Shanok, an expert in the field of accident reconstruction, when he said that the state crime laboratory had inspected the vehicle and concluded that there was nothing to test. The defendant argues that this information led him to forgo requesting that alleged evidence of blood and hair on the windshield of the vehicle be preserved and tested prior to the trial, and he now seeks to have the judgment of conviction reversed and the case remanded to the trial court for posttrial discovery to test the alleged evidence. The defendant’s claim has no merit.

The following additional facts are relevant to our resolution of the defendant’s claim. Shortly before the trial commenced, Shanok met with Deeley to inspect the damaged vehicle. At trial, the defense claimed that forensic evidence inside the vehicle proved that the defendant was a passenger at the time of the accident, despite his being found in the driver’s seat. Shanok testified that when examining the front windshield on the passenger side, he observed a series of fractures in the shape of a spider web from which he extracted two small pieces of broken glass. He testified that, using a magnification glass, he observed a dark maroon substance and what appeared to be several tiny strands of hair embedded in the glass. Defense counsel theorized that the defendant hit his head on the windshield, thereby causing the crack and leaving behind the alleged evidence of blood and hair.

The state suggested a different theory. State investigator John R. McLay testified that the windshield was “caved in,” thus indicating that an outside object had caused the damage. Farina, McLay and Deeley also testified that they did not see any evidence of blood on the windshield. McLay specifically testified that he searched for “hair samples throughout the windshield area on both sides; hair, blood, bone, tissue, anything that might help . . . figure out what happened,” but found nothing. Even when Shanok testified on cross-examination that the splinter of glass he took from the windshield had some kind of substance on it, he could not identify the substance. Deeley also testified that to his knowledge, a forensic expert from the state laboratory in Meriden had inspected the vehicle but that he, Deeley, had never seen a report, although he believed that he had “seen something where it said that there was nothing for forensics that they could test.” Following Deeley’s testimony, the prosecutor explained to defense counsel that he had contacted the state forensic laboratory following the accident, described what had happened to the vehicle and was told that the laboratoiy could not conduct any testing because of significant contamination by dirt and debris. As a result, no one from the state crime laboratory inspected or performed forensic tests on the vehicle, and no report ever was issued.

The day before sentencing, the defendant filed a motion for a continuance of sentencing pending post-trial discovery to collect evidence of and to perform testing on the alleged blood and hair embedded in the windshield. The defendant had not requested forensic testing prior to filing the motion. The state opposed the motion, arguing that there was no evidence on the windshield, that nothing in the vehicle was even testable due to contamination and that the state had not made misrepresentations to the defendant concerning forensic testing. The state explained that Deeley’s testimony that he had “seen something that said there was nothing for forensics to test” probably referred to the prosecutor’s notes, which indicated that he had contacted the forensic laboratory and that the laboratory had concluded that there was nothing to test.

The court denied the defendant’s motion, stating that “the defendant bears the burden to prove that the state had within its possession evidence favorable to the defendant that it failed to disclose to the defendant. ... In this case, the court is satisfied that the defendant has not met [his] burden of showing that the state possessed exculpatory evidence that was favorable to the defendant, nor has the defendant even met his burden that such exculpatory evidence even existed. So for those reasons, the court is going to deny the defendant’s posttrial motion for discovery . . . .” Thereafter, the court sentenced the defendant.

“The law governing the state’s obligation to disclose exculpatory evidence to defendants in criminal cases is well established. The defendant has a right to the disclosure of exculpatory evidence under the due process clauses of both the United States constitution and the Connecticut constitution. Brady v. Maryland, 373 U.S. 83, 86, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); State v. Simms, 201 Conn. 395, 405 & n.8, 518 A.2d 35 (1986). In order to prove a Brady violation, the defendant must show: (1) that the prosecution suppressed evidence after a request by the defense; (2) that the evidence was favorable to the defense; and (3) that the evidence was material. ” (Internal quotation marks omitted.) State v. Floyd, 253 Conn. 700, 736-37, 756 A.2d 799 (2000). “[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Internal quotation marks omitted.) State v. Olah, 60 Conn. App. 350, 354-55, 759 A.2d 548 (2000). “[T]he trial court’s decision regarding ... a Brady violation will be overturned only upon a finding of clear abuse of discretion.” (Internal quotation marks omitted.) State v. St. Pierre, 58 Conn. App. 284, 294, 752 A.2d 86, cert. denied, 254 Conn. 916, 759 A.2d 508 (2000).

In State v. Shashaty, 251 Conn. 768, 781-83, 742 A.2d 786 (1999), cert. denied, 529 U.S. 1094, 120 S. Ct. 1734, 146 L. Ed. 2d 653 (2000), the defendant claimed that the department of correction violated his state and federal constitutional rights to a fair trial because alleged evidence consisting of several envelopes and a letter vanished while in the custody of the state or the department. The state contested the existence of the alleged evidence, and the defendant’s claim ultimately failed. The court concluded that there was no factual basis for the claim other than the defendant’s own statement, which was insufficient to sustain his constitutional challenge. Id., 782-83.

Here, as in Shashaty, the court concluded that the defendant did not provide sufficient factual support for his claim that the alleged evidence existed. The court weighed the credibility of the witnesses and determined that Shanok’s testimony could not overcome the collective testimony of Deeley, Farina and McLay that there was no evidence of blood and hair on the windshield of the car. On appeal, “we may not retry the case or pass on the credibility of witnesses. . . . We must defer to the trier of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude. . . . The weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact.” (Citations omitted; internal quotation marks omitted.) Statewide Grievance Committee v. Dixon, 62 Conn. App. 507, 511, 772 A.2d 160 (2001).

We defer to the court’s conclusion, which is amply supported by the evidence. The testimony of several witnesses suggested that the windshield was struck by an object outside the vehicle. Furthermore, Shanok was the only witness to testify that he observed what appeared to be hair on the windshield, and he could not say, when pressed to be specific on cross-examination, that the dark colored substance he also observed was blood, dirt or any other material. Moreover, Farina, McLay and Deeley testified that they did not see blood or other forensic evidence on the windshield despite attempting to find, as McLay explained, “anything that might help . . . figure out what happened.” Finally, even if there had been forensic evidence inside the vehicle, investigators at the state crime laboratory concluded that it could not have been tested because of significant contamination by dirt and debris. Accordingly, making every reasonable presumption in favor of the court’s ruling, we conclude that the court did not abuse its discretion in denying the defendant’s motion for a continuance of sentencing. The court properly found that the defendant did not meet his burden of proving a Brady violation because he could not prove the existence of the potentially exculpatory evidence. See State v. Connelly, 46 Conn. App. 486, 512-13, 700 A.2d 694 (1997), cert. denied, 244 Conn. 907, 908, 713 A.2d 829, cert. denied, 525 U.S. 907, 119 S. Ct. 245, 142 L. Ed. 2d 201 (1998).

The defendant argues that the facts here are analogous to the facts in State v. Hammond, 221 Conn. 264, 604 A.2d 793 (1992). We disagree. In Hammond, our Supreme Court determined that the trial court improperly denied the defendant’s posttrial motion requesting permission to test rape kit material on the ground that there was reason to doubt the court’s conclusion that such evidence would be cumulative. Both courts agreed, however, that there were samples in the rape kit, the samples were testable and the samples constituted potentially exculpatory evidence. Id., 294. By contrast, the trial court here denied the defendant’s posttrial motion because he did not meet his burden of establishing that the state possessed potentially exculpatory evidence or that such evidence even existed. Accordingly, Hammond is inapposite.

II

The defendant next claims that the court improperly denied his motion for a Franks hearing. He claims that according to the coroner’s report, the victim’s injuries were primarily to the left side of his body, but that the arrest warrant stated that the victim’s injuries were primarily to the right side of his body. The defendant thus claims that he made a substantial preliminary showing that false statements as to the location of the victim’s injuries were included in, and material exculpatory information was omitted from, the warrant affidavit in reckless disregard for the truth. We disagree.

The following additional facts are relevant to our resolution of the defendant’s claim. On September 20, 1997, Malka B. Shah, an associate medical examiner in the office of the chief medical examiner for the state of Connecticut, performed an autopsy on the victim’s body. On September 21,1997, Shah signed a death certificate indicating that the victim was a passenger in a one-vehicle collision. On November 20, 1997, Shah issued a report of her findings and concluded on page four, after reviewing the police records, that the victim was driving the vehicle. The report described injuries to both sides of the victim’s body, but noted that “[t]he external examination findings on the body of [the victim] do not contribute in determining whether he was the driver or passenger in the motor vehicle. Therefore, the death certificate has been amended to indicate that [the victim] was the driver in a one-vehicle collision.” On January 5, 1998, Shah amended her November, 1997 report. The amendment stated: “I received a phone call from [the state’s attorney] on December 19, 1997 indicating that their investigation had concluded that [the victim] was the passenger in a motor vehicle accident. This was followed by a letter and copy of their report of investigation. The review of the external examination and photographs does not contribute toward determining whether [the victim] was the driver or passenger. Therefore, the death certificate has been reamended to indicate that [the victim] was the passenger in a one-vehicle collision.”

The defendant was arrested on March 5, 1998, pursuant to a warrant issued on March 2, 1998, for which Deeley was the affiant,. Par agraph seven of the warrant alleged that “the injuries to Eric Robbins 'were primarily to the right side of his body which would indicate he was in the passenger seat of the vehicle. That these injuries which were to his right side were noted in the external examination performed by Dr. Malka Shah at the Medical Examiner’s Office in Farmington, Connecticut.” (Emphasis added.)

The court conducted a pretrial conference on April 6, 1998. There is no evidence in the record or file that the warrant was discussed at the conference. In a motion dated October 28, 1998, almost seven months later, the defendant requested an order granting him permission to file future motions, but the record contains no evidence that the court ruled on that motion. On the morning of November 23, 1998, the day the trial was to commence, the defendant filed a motion for a hearing and for the voiding of the arrest warrant. In his motion, the defendant claimed that the warrant affidavit contained false statements that were necessary to the judge’s subsequent finding of probable cause to arrest him. He claimed, specifically, that paragraph seven, in a deliberate and wrongful attempt to portray the victim as the passenger, contained untruthful statements concerning the location of the wounds, injuries and abrasions on the right side of the victim’s body. The defendant alleged that, if the judge who issued the warrant had been aware that those statements were false, he would not have found probable cause to issue the warrant because the remaining content of the affidavit was insufficient to establish probable cause.

In his motion, the defendant also alleged that Deeley improperly omitted from the affidavit photographs of the damaged vehicle and material, exculpatory information concerning the location of the defendant’s injuries and the ownership of the vehicle. He claims that this information would have established that he did not drive the vehicle on the night of the accident and, thus, there would have been no probable cause to issue the arrest warrant.

The court denied the motion, explaining that it “would have to hear some substantial evidence in support of your claims, and the court would also have to hear rebuttal witnesses .... The court is aware of the fact that there is a jury that has been selected, was selected more than three weeks ago. We are, today, at the point of commencing trial, and the jury has been assembled here this morning for that purpose. And we have also selected a jury based upon a time schedule that we have represented to them that this trial would take. If we were to have a hearing, that would seriously, in the court’s opinion, jeopardize our ability to have this pool of jurors available to us. The court can’t help but wonder why this motion was not filed in a more timely manner rather than on the morning of the day that we are to begin trial. Or it could have been filed even after we selected the jurors and prior to this morning.

“The court’s not able to conclude that the statements . . . are false. Secondly, that the statements were made with a reckless disregard for the truth. And even if they were . . . false, that the statements would have rendered the affidavit . . . without sufficient probable cause for his arrest, or that the material that was allegedly excluded would have indeed been exculpatory. The court’s not able to conclude that . . . without having what I believe would be a fairly prolonged hearing jeopardizing the ability of this trial to go forward. The court’s going to deny your motion.”

“Our standard of review for evidentiary matters allows the trial court great leeway .... The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done. . . . The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law.” (Internal quotation marks omitted.) State v. Russo, 62 Conn. App. 129, 133, 773 A.2d 965 (2001).

Practice Book § 41-5 provides in relevant part that “all pretrial motions or requests [in criminal matters] shall be made not later than ten days after the first pretrial conference in the court where the case will be tried, or, with permission of the judicial authority, at such later time as the judicial authority may fix. . . .” Practice Book § 41-4 provides in relevant part that “[f]ailure by a party, at or within the time provided by these rules, to raise defenses or objections or to make requests that must be made prior to trial shall constitute a waiver thereof, but a judicial authority, for good cause shown, may grant relief from such waiver . . . .”

Here, the defendant waived his right to a Franks hearing because his motion was untimely filed. The parties held their first pretrial conference on April 6, 1998. Almost seven months later, the defendant filed an untimely motion to reserve the right to make future motions. Because the court did not act on that motion, the defendant did not have permission to file a late motion at a subsequent point in time. Moreover, the defendant makes no claim that good cause existed for the motion’s untimely filing. The court decided not to grant the defendant relief because the motion, in addition to being untimely, was filed on the first day of evidence, the jurors were assembled for the commencement of the evidence and a prolonged hearing would have jeopardized substantially the ability of the trial to go forward. Accordingly, we conclude that the court did not abuse its discretion in denying the defendant’s motion for a Franks hearing.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-57 provides: “(a) A person is guilty of misconduct with a motor vehicle when, with criminal negligence in the operation of a motor vehicle, he causes the death of another person.
      “(b) Misconduct with a motor vehicle is a class D felony.”

       In his brief, the defendant states that Deeley’s testimony was consistent with the pretrial representations he made to Shanok when they met to view the damaged vehicle.

       “The standard currently applied in Connecticut to challenges directed to affidavits supporting warrant applications is the federal standard of Franks v. Delaware, supra, 438 U.S. 154. In Franks v. Delaware, supra, 171, the United States Supreme Court held that the truth of an affidavit supporting a search warrant may be challenged at an evidentiary hearing when a satisfactory preliminary showing of deliberate falsity or reckless disregard of the truth on the part of the affiant has been made. ... If at such a hearing the allegation of falsity [by the affiants] is established by a preponderance of the evidence, and the remaining content of the affidavit is not independently sufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as when probable cause is lacking on the face of the affidavit. Franks v. Delaware, supra, 171-72.” (Citations omitted; internal quotation marks omitted.) State v. Glenn, 251 Conn. 567, 570-71, 740 A.2d 856 (1999).

       The court’s computerized records confirm that such a conference was held.

       The motion is not date stamped, and there is no evidence in the record as to the date the motion was filed.


source: Caselaw Access Project

author: HEALEY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. KEITH DONHUE COOPER
    (AC 20152)
    Landau, Dranginis and Healey, Js.
    Argued December 13, 2000 —
    officially released July 3, 2001

      Nicholas P. Cardwell, with whom, on the brief, was M. Donald Cardwell, for the appellant (defendant).

      Michael E. O’Hare, assistant state’s attorney, with whom, on the brief, was Scott J. Murphy, state’s attorney, for the appellee (state).
   Opinion

HEALEY, J.

The defendant, Keith Donhue Cooper, appeals from the trial court’s denial of his motion to vacate his plea of nolo contendere. On appeal, the defendant argues that his plea was not knowing and voluntary. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. On March 25, 1996, the defendant, who is not a United States citizen, pleaded nolo contendere to an information charging him with one count of possession of marijuana with intent to sell in violation of General Statutes § 21a-277 (b). While he was being represented by counsel, the court canvassed the defendant concerning his plea.

On that same day, the court rendered judgment. After the court accepted the plea, it imposed a fine on the defendant of $2500 in accordance with his plea agreement with the state. On April 10,1996, the defendant paid his fine. On June 28, 1999, more than three years later, the defendant filed a motion to vacate his plea. On October 6, 1999, the court denied his motion. The plaintiff appealed from that denial.

On appeal, the defendant’s sole claim is that the court improperly denied his motion to vacate his plea because his plea was not knowingly and voluntarily made. Specifically, he argues that his plea was constitutionally infirm because the court did not canvass him at all as to his waiver of his right to a jury trial, his right to confront the witnesses against him and his right not to incriminate himself. See Practice Book § 39-19; Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).

I

The state argues on appeal that the trial court lacked subject matter jurisdiction to hear the defendant’s motion to vacate because, upon paying the fine, his sentence was fully executed. We disagree.

“If the resolution of a criminal appeal can create collateral consequences prejudicial to the interests of an appellant, jurisdiction over the appeal remains, even if the appellant has already served the sentence given.” State v. Reilly, 60 Conn. App. 716, 724-25, 760 A.2d 1001 (2000). In the present case, at the time the defendant filed his motion to vacate his plea he assumed that the 1997 amendment to General Statutes § 54-1j was not to be applied retroactively and therefore he could rely on subsection (a) of that statute to have the court vacate his plea. Therefore, because of the collateral consequence of possible deportation when a defendant enters a plea of guilty or nolo contendere, the trial court had subject matter jurisdiction to hear the defendant’s motion to vacate.

II

The defendant argues on appeal that because he did not knowingly and voluntarily waive his Boykin rights, he has an absolute right to withdraw his plea. The defendant’s argument founders, however, on an examination of his motion to vacate his plea, the denial of which is the basis of his appeal. A fair reading of his motion reveals the defendant’s failure to alert the trial court to the Boykin claim that he now asserts on appeal. “Pleadings have an essential purpose in the judicial process. . . . The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried . . . .” (Citation omitted; internal quotation marks omitted.) Thames River Recycling, Inc. v. Gallo, 50 Conn. App. 767, 782-83, 720 A.2d 242 (1998). “It is imperative that the court and opposing counsel be able to rely on the statement of issues as set forth in the pleadings.” (Internal quotation marks omitted.) Board of Police Commissioners v. White, 171 Conn. 553, 557-58, 370 A.2d 1070 (1976). “As Justice Cardozo has written: justice, though due to the accused, is due to the accuser also. Snyder v. Massachusetts, 291 U.S. 97, 122, 54 S. Ct. 330, 78 L. Ed. 674 (1934). Fairness is a double-edged sword and both sides are entitled to its benefits throughout the trial.” (Internal quotation marks omitted.) State v. McClendon, 199 Conn. 5, 12, 505 A.2d 685 (1986). In an appeal from a trial court’s decision on a motion to vacate, which was filed more than three years after the court accepted the defendant’s plea, we can address only those issues set forth in the motion that the court heard and decided. See McNamara v. New Britain, 137 Conn. 616, 618, 79 A.2d 819 (1951); see also Wilson v. Kapetan, Inc., 25 Conn. App. 529, 535, 595 A.2d 369 (1991). Because the Boykin issue was not first raised in his motion to vacate, the defendant cannot rely on that claim to challenge the denial of that motion on appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       Under General Statutes § 54-lj, our law requires that a trial court give certain instructions on possible immigration and naturalization ramifications in passing on a proffer of a guilty plea or nolo contendere plea.
      General Statutes § 54-1j provides: “(a) The court shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the court advises him of the following: ‘If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States.’
      “(b) The defendant shall not be required at the time of the plea to disclose his legal status in the United States to the court.
      “(c) If the court fails to advise a defendant as required in subsection (a) of this section and the defendant not later than three years after the acceptance of the plea shows that his plea and conviction may have one of the enumerated consequences, the court, on the defendant’s motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.”

       General Statutes § 21a-277 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance, except a narcotic substance, or a hallucinogenic substance other than marijuana, except as authorized in this chapter, may, for the first offense, be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned; and, for each subsequent offense, may be fined not more than one hundred thousand dollars or be imprisoned not more than fifteen years, or be both fined and imprisoned.”

       In sentencing the defendant, the court imposed only the monetary fine. It did not impose any period of incarceration to be served or suspended.

       Practice Book § 39-19 provides: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.”

       We will refer to these constitutional rights as “Boykin" rights.

       The amendment to General Statutes § 54-1j that the defendant assumed would not be applied retroactively was a three year deadline for filing a motion to vacate a plea. See Public Acts 1997, No. 97-256, § 6. His motion was filed more than three years after the sentencing.

       The question of retroactivity was settled by our Supreme Court in State v. Parra, 251 Conn. 617, 631, 741 A.2d 902 (1999). See footnote 8.

       In his motion to vacate his plea, the defendant argued that his plea was invalid because he was not properly advised of the immigration consequences of his plea as required by General Statutes § 54-1j (a). See footnote 1. In his brief, and at oral argument, the defendant withdrew that claim. In State v. Parra, 251 Conn. 617, 631, 741 A.2d 902 (1999), our Supreme Court concluded that § 54-1j was to be applied retroactively. In the present case, § 54-1j (c), therefore, is applicable to the defendant because his motion to vacate his plea was filed more than three years after the court accepted the plea. See footnote 1.
      It is noteworthy that on September 30, 1999, the defendant filed a memorandum in support of his motion to vacate his plea. Although he argues in that memorandum that his plea was not knowingly and voluntarily made, his only argument in support thereof is that he did not want to plead guilty. He did not inform the trial court of any other reasons why his plea was not knowing or voluntary. On appeal, he does not raise the claim that he did not want to plead guilty.

       It is significant that the record discloses that the defendant first asserts this Boykin claim in his appellate brief to this court. See, e.g., State v. Rodriguez, 61 Conn. App. 700, 713, 767 A.2d 756 (2001).

       We offer no opinion as to whether the defendant may seek, in another proceeding, the relief he requested.


author: DRANGINIS, J.

text:
    STATE OF CONNECTICUT v. KELWOOD WHITE
    (AC 19326)
    Lavery, C. J., and Dranginis and O’Connell, Js.
    Argued February 15 —
    officially released July 3, 2001

      David B. Rozwaski, special public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were John Redway, state’s attorney, and Timothy Liston, senior assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, Kelwood White, appeals from the judgment of conviction, rendered after a jury trial, of six counts of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and three counts of sale of narcotics within 1500 feet of a school or public housing project in violation of General Statutes § 21a-278a (b). The defendant claims that (1) the trial court improperly limited his cross-examination of a state’s witness and (2) there was insufficient evidence to support the conviction of sale of narcotics within 1500 feet of a school. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. From December, 1995, to June, 1996, Detective Richard Batts of the Middletown police department worked in the street crimes unit and investigated illegal drug sales. Batts testified that while working undercover, he had purchased narcotics from the defendant on six separate occasions. On three of the six occasions, the sales took place within 1500 feet of a school or public housing project. On February 8, 1996, two separate sales occurred at different times in the State Terrace parking lot in the Long River Village housing project. On April 11, 1996, a sale occurred on Rogers Road.

On May 4, 1996, after the defendant told Batts that he would have to use an intermediary to purchase drugs in the future, the defendant was arrested on a warrant. The defendant was charged in a substitute information with six counts of sale of narcotics by a person who is not drug-dependent and three counts of sale of narcotics within 1500 feet of a school or public housing project. At the conclusion of evidence, the jury found the defendant guilty on all nine counts, and the court sentenced him to a total effective sentence of sixteen years. This appeal followed. Additional facts and procedural history will be provided as necessary.

I

The defendant first claims that the court improperly restricted his cross-examination of Sergeant Frank Violissi of the Middletown police department concerning his bias against the defendant. We disagree. The trial court has wide discretion to determine the relevancy of evidence. State v. Fritz, 204 Conn. 156, 167, 527 A.2d 1157 (1987). “This discretion arises, however, only after the defendant has been permitted cross-examination and impeachment of a witness sufficient to satisfy the sixth amendment.” State v. Colton, 227 Conn. 231, 248, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996). “[A]n important function of cross-examination is the exposure of a witness’ motivation in testifying.” (Internal quotation marks omitted.) Id., 249, citing Greene v. McElroy, 360 U.S. 474, 496, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959). “Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted.” (Internal quotation marks omitted.) State v. Gould, 241 Conn. 1, 16, 695 A.2d 1022 (1997).

“Although the outright denial of a defendant’s opportunity to impeach a witness for motive, bias and interest implicates the constitutional protection of the confrontation clause, such a denial is subject to harmless error analysis.” State v. Colton, supra, 227 Conn. 253, citing United States v. Anderson, 881 F.2d 1128, 1139 (D.C. Cir. 1989); State v. Santiago, 224 Conn. 325, 332, 618 A.2d 32 (1992). “Whether such error is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” (Internal quotation marks omitted.) State v. Colton, supra, 254.

On appeal, the defendant claims that Violissi was a key witness for the state who may have had a bias against the defendant and that the court improperly restricted inquiry into this potential bias. We disagree. At trial, Violissi testified for the state because he was Batts’ supervisor in the street crimes unit. On cross-examination, Violissi stated that he did not direct Batts to make a narcotics purchase from the defendant and did not know the defendant before the time of the purchase. The defendant then asked Violissi: “I don’t say this to embarrass, but isn’t it true that your daughter became involved,” at which point the state objected. The jury was excused. The court stated that it could not yet rule on the objection because it did not know the full extent of the question to be asked.

The defendant then stated, “The offer is that, perhaps, Sergeant Violissi targeted drug dealers who were black because, unfortunately, his daughter became involved with the drug-dealing element and he resented that at Long River Village.” The court stated: “I don’t know . . . I’m having some — some difficulty in — in following your theory of this. . . . [I]f your claim is that — that either Mr. Violissi or — or some or all of the police in Middletown were — were targeting specific racial or ethnic groups, you know, I — I think that would be — I guess that would be your claim, I’m not sure that’s ... a defense, as such. . . . I’m not sure I’m inclined to let it in. ... I did allow you to raise the issue when— when Officer Batts testified as to . . . bias and so forth, but . . . I’m not going to allow that question. I think [the states attorney’s] objection is well placed. You may have an exception.”

In the present case, the court did not improperly restrict the defendant’s cross-examination of Violissi. The importance of Violissi’s testimony to the prosecution’s case was minimal. Batts was the officer who actually purchased narcotics from the defendant and he was the prosecution’s main witness. Violissi’s testimony was cumulative and corroborative of the testimony of Batts.

Furthermore, the record also reveals no evidence that raises a reasonable inference that Violissi’s daughter became involved in purchasing drugs from an African-American male drug dealer or that because of this alleged activity by his daughter, Violissi became prejudiced against drug dealers in that particular housing complex, and, further, that this alleged bias would cause him to testily falsely against the defendant. Moreover, the defendant did not make any representation to the court that is contained in the record explaining the basis of his knowledge regarding Yiolissi’s daughter’s alleged involvement with drugs. The defendant’s offer of proof was not adequately developed to be regarded by the trial court as anything but speculation. Accordingly, we conclude that the court’s limitation of the defendant’s cross-examination for bias, if encroaching at all on his right of confrontation, was harmless beyond a reasonable doubt.

II

The defendant next claims that there was insufficient evidence to prove that he sold narcotics within 1500 feet of a school. The defendant argues that at no time was any evidence introduced that the transaction actually occurred within the statutory 1500 feet. We disagree.

At trial, Batts testified regarding the April 11, 1996 narcotics purchase. He stated that the map in evidence represented an area that included Rogers Road, Schaeffer Road and Snow School. He also stated that the location where the April 11, 1996 sale occurred was labeled T6 on the map by him.

Robert Dobmeier, assistant chief engineer of the Middletown public works department, also testified that the map was a fair and accurate depiction of the streets, buildings and property lines near Snow School. Dobmeier testified that the map he brought was on file at the public works department and that it was a topographic map of the area around Snow School. Dobmeier further testified that he drew an arc in red on the map delineating a 1500 foot radius from the northern property line of Snow School. Enclosed in the red arc was Rodgers Road and the area that Batts had labeled T6 as the place where the sale had occurred. The map itself bears the insignia of the city of Middletown, and states that it meets or exceeds national accuracy standards and that it depicts property lines and structures in the area.

The state must prove that the defendant sold the drugs in a location that is within 1500 feet of a school. See State v. Knight, 56 Conn. App. 845, 850, 747 A.2d 13 (2000). “In reviewing a sufficiency [of the evidence] claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994). “In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” (Internal quotation marks omitted.) State v. Carpenter, 214 Conn. 77, 79, 570 A.2d 203 (1990). “The scope of our factual inquiry on appeal is limited. This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . . [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Brown, 235 Conn. 502, 510-11, 668 A.2d 1288 (1995).

“Our Supreme Court has called a map no more than the pictorial representation of the testimony of the witness through whom it was offered into evidence. . . . Any inaccuracies of the exhibit do not raise a question of admissibility, but rather a question of what weight the jury will afford it. . . . The admissibility of a map is similar to the admissibility of a photograph in that the trial court should examine whether the exhibit aids the jury in understanding the evidence. . . . The trial court in ruling on admissibility is concerned with whether the map is relevant and whether it will assist the jury in understanding the testimony.” (Citations omitted; internal quotation marks omitted.) State v. Kirker, 47 Conn. App. 612, 616, 707 A.2d 303, cert. denied, 244 Conn. 914, 713 A.2d 831 (1998).

The evidence in the record shows that the map used to establish the area where the narcotics were exchanged was a reasonable representation of the location and that this area was within 1500 feet of a school. On the map, the T6 label, and the entire length of Rogers Road itself, is approximately halfway between the school property line and the 1500 foot red radius mark. Although Batts never was specifically asked whether the transaction occurred within 1500 feet of the school, the map itself has the marking T6 made by Batts that shows the general location of the exchange, and this mark is approximately halfway between the 1500 foot line and Snow School. Moreover, according to the map admitted into evidence, virtually the entire street, Rogers Road, falls within 1500 feet of a school zone, and the spot labeled T6 by Batts is halfway between the 1500 foot line and Snow School.

The map, along with the testimony of Batts and Dobmeier, was sufficient to aid the jury in concluding that the sale occurred within 1500 feet of a school. The map was relevant and assisted the jury in understanding the testimony. Therefore, we conclude, after viewing the evidence in the light most favorable to sustaining the verdict, that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Upon the facts so construed and the inferences reasonably drawn therefrom, the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who . . . distributes, sells . . . transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance . . . and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years . . . .”

       General Statutes § 21a-278a (b) provides in relevant part: “Any person who violates section . . . 21a-278 by . . . distributing, selling . . . dispensing . . . transporting with the intent to sell or dispense, possessing with the intent to sell or dispense, offering, giving or administering to another person any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school [or] a public housing project . . . shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section . . . 21a-278. To constitute a violation of this subsection, an act of transporting or possessing a controlled substance shall be with intent to sell or dispense in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school . . . .”

       The defendant has always maintained his innocence. His wife testified that he was with her in New Britain on one of the occasions of an alleged sale. The defendant testified that he never met Batts prior to May 4, 1996, when he was arrested. The defendant maintains that he never sold drugs to Batts and that the only reason he was arrested is because of his refusal to cooperate with the police.

       The defendant objected to the map because it was not certified by a surveyor, and he cross-examined the assistant city engineer at length concerning horizontal, vertical and topographical accuracy.


author: LANDAU, J.

text:
    SOUTHERN NEW ENGLAND TELEPHONE COMPANY v. DEPARTMENT OF PUBLIC UTILITY CONTROL
    (AC 21212)
    Landau, Dranginis and Peters, Js.

      Argued March 23 —
    officially released July 3, 2001

      Ralph G. Elliot, for the appellant (plaintiff).

      Tatiana D. Eirmann, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

LANDAU, J.

The plaintiff, Southern New England Telephone Company (telephone company), appeals from the judgment of the trial court dismissing its administrative appeal following the granting of a motion to dismiss for lack of a final decision filed by the defendant department of public utility control (department). On appeal, the telephone company claims that the court improperly failed to conclude that the telephone company (1) was entitled to appeal even absent a final decision of the department or (2) did appeal from a final decision. We affirm the judgment of the trial court.

A review of the following facts and procedural history is necessary for an understanding of the issues presented in this appeal. The department is a state agency authorized pursuant to title 16 of the General Statutes and the Telecommunications Act of 1996, 47 U.S.C. § 151 et seq., to regulate and supervise the operation of public service companies in Connecticut. The telephone company is a public service company within the meaning of General Statutes § 16-1 (4) and (23), and has been authorized by the department to provide telecommunication services in the state.

In March, 1998, the telephone company sought permission from the department to change the amount it charges for seventeen types of nonrecurring migration charges. After the opportunity for comment and testimony, the department, on January 5, 2000, issued an order (January order), Docket No. 98-09-01, with respect to nonrecurring migration charges. On April 28, 2000, the department sent the telephone company a letter (April letter), referencing the docket number for the January order, directing the telephone company to implement the department’s rates for the seventeen types of nonrecurring migration charges. The parties disagree concerning the significance of the January order and the April letter. The telephone company asserts that the January order applied only to two of the seventeen nonrecurring migration charges and, therefore, the April letter was a distinct final decision. The department claims that the January order applied to all seventeen migration charges and that the April letter was merely a follow up enforcement letter applying to the January order.

The telephone company appealed to the Superior Court from the April letter. The department filed a motion to dismiss the telephone company’s appeal, claiming that it was not taken from a final decision. The court concluded that the April letter was not a final decision and, accordingly, granted the department’s motion to dismiss. This appeal followed. Other facts will be discussed where necessary.

The telephone company claims that the court improperly granted the department’s motion to dismiss the telephone company’s administrative appeal for lack of a final decision. More specifically, the telephone company claims that (1) pursuant to General Statutes § lb-35, it was entitled to take an administrative appeal of the directives in the April letter without a final decision by the department and (2) that the April letter was a final decision. We disagree.

Our standard of review for a motion to dismiss is well settled. “A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the trial court’s ultimate legal conclusion and resulting grant of the motion to dismiss will be de novo.” (Citations omitted; internal quotation marks omitted.) Borden v. Planning & Zoning Commission, 58 Conn. App. 399, 405, 755 A.2 224, cert. denied, 254 Conn. 921, 759 A.2d 1023 (2000).

I

The telephone company first claims that the court improperly failed to conclude that pursuant to § 16-35, it was entitled to take an administrative appeal of the directives in the April letter even absent a final decision by the department. We disagree.

“It is well established that the right to appeal an administrative action is created only by statute and a party must exercise that right in accordance with the statute in order for the court to have jurisdiction.” (Internal quotation marks omitted.) Johnson v. Dept. of Public Health, 48 Conn. App. 102, 110, 710 A.2d 176 (1998). Our resolution of the telephone company’s claim, therefore, requires us to construe the statutes that create the right to appeal administrative actions. “ ‘It is fundamental that statutory construction requires us to ascertain the intent of the legislature and to construe the statute in a manner that effectuates that intent. . . . Starr v. Commissioner of Environmental Protection, 236 Conn. 722, 737, 675 A.2d 430 (1996). In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Fleming v. Garnett, 231 Conn. 77, 92, 646 A.2d 1308 (1994); State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994). . . . [C]ommon sense must be used in statutory interpretation, and courts will assume that the legislature intended to accomplish a reasonable and rational result. . . . Elliot v. Sears, Roebuck & Co., 229 Conn. 500, 515, 642 A.2d 709 (1994); State v. Hinton, 227 Conn. 301, 320, 630 A.2d 593 (1993).’ . . . Cannata v. Dept, of Environmental Protection, 239 Conn. 124, 140-41, 680 A.2d 1329 (1996).” (Citations omitted.) Carpenter v. Freedom of Information Commission, 59 Conn. App. 20, 24, 755 A.2d 364, cert. denied, 254 Conn. 933, 761 A.2d 752 (2000). Where “the language of the statute is plain and unambiguous, we will not look beyond the words themselves . . . .” Szczapa v. United Parcel Service, Inc., 56 Conn. App. 325, 329, 743 A.2d 622, cert. denied, 252 Conn. 951, 748 A.2d 299 (2000). Finally, “we are guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law .... [T]his tenet of statutory construction . . . requires us to read statutes together when they relate to the same subject matter . . . .” (Citations omitted; internal quotation marks omitted.) Derwin v. State Employees Retirement Commission, 234 Conn. 411, 420, 661 A.2d 1025 (1995).

Pursuant to § 16-35, “[a]ny person, including but not limited to a company . . . aggrieved by any order, authorization or decision of the Department of Public Utility Control . . . may appeal therefrom in accordance with the provisions of [General Statutes §] 4-183. . . .” There is nothing within the text of § 16-35 that indicates that a final decision of the department is required to take an administrative appeal. According to the statute’s terms, however, appeals taken under § 16-35 must comply with the provisions of § 4-183. Section 4-183 (a) sets forth the jurisdictional requirement that appellants must be “aggrieved by a final decision” of the agency to take an administrative appeal. (Emphasis added.) When read together, the plain language of the statutes makes it clear that § 4-183 (a) places the jurisdictional requirement of a final decision on appeals taken under § 16-35. Accordingly, the court did not improperly fail to conclude that the telephone company was entitled to take an administrative appeal of the directives in the April letter without a final decision of the department.

II

The telephone company next claims that the court improperly concluded that the April letter was not a final decision of the department. More specifically, the telephone company argues that the April letter was a final decision because it was either a (1) declaratory ruling or (2) a reconsideration by the department. We disagree.

A review of the record reveals the following additional facts. In a letter dated March 3, 2000, defendant CTC Communications Corporation (CTC) requested that the department enforce the January order against the telephone company. Similarly, in a motion to compel dated March 22, 2000, Connecticut Telephone & Communications Systems, Inc. (CTTel), urged the department to enforce the January order. The telephone company, on April 5, 2000, sent the department a response to CTC’s letter and CTTel’s motion to compel. In the April letter, the department indicated that it was in receipt of the letter, motion and response previously discussed. The department then stated that its January order applied to all seventeen nonrecurring migration charges and directed the telephone company to comply with the order.

The telephone company first claims that pursuant to General Statutes § 4-166 (3) (B), the April letter is a final decision because it is a declaratory ruling interpreting the January order. In support of its position, the telephone company argues that the parties had different opinions regarding the scope of the January order and that the April letter clarified the meaning of the order. The department counters that the April letter simply is an enforcement letter for the January order and that it does not qualify as a declaratory ruling because the procedures for declaratory rulings were not followed.

Pursuant to § 4-166 (3) (B), a declaratory ruling made by an agency is a final decision. A declaratory ruling proceeding may be initiated by the petition of a party or on an agency’s own motion. General Statutes § 4-176 (a). Where a declaratory ruling proceeding has been initiated, the agency must comply with a number of procedures. General Statutes § 4-176 (b) through (j). The procedures include, inter alia, giving notice to all persons to whom notice is required by law and keeping a record of the proceedings. See General Statutes § 4-176 (c) and CD-

There is no evidence in the record that a party initiated a declaratory ruling proceeding by filing a petition, nor is there evidence that the department, on its own motion, initiated such a proceeding. Furthermore, the record does not contain any evidence that the department followed any of the declaratory ruling procedures required pursuant to § 4-176. On the basis of the evidence contained in the record, we cannot conclude that the April letter constitutes a declaratory ruling.

The telephone company next claims that the April letter is a final decision because it is an agency decision made after reconsideration. More specifically, the telephone company argues that the April letter modified the January order and, therefore, the letter constitutes a reconsideration of the order.

Section 4-166 (3) (C) provides that an agency decision made after reconsideration is a final decision. Reconsideration for purposes of § 4-166 (3) (c) is limited to a decision that was final before reconsideration because it was made in a contested case. Derwin v. State Employees Retirement Commission, supra, 234 Conn. 422. Assuming, without deciding, that the January order was a contested case, we now address whether the April letter was a reconsideration of the order.

“In determining the proper scope of § 4-166 (3) (C), we look first to . . . [General Statutes] § 4-181a, which governs the reconsideration of agency decisions pursuant to [General Statutes § 4-166 et seq., the Uniform Administrative Procedure Act].” Derwin v. State Employees Retirement Commission, supra, 234 Conn. 420-21. There are three ways an agency can perform reconsideration under § 4-181a. First, “a party in a contested case may . . . file with the agency a petition for reconsideration ... on the ground that (A) [a]n error of fact or law should be corrected; (B) new evidence has been discovered ... or (C) other good cause for reconsideration has been shown. . . .” General Statutes § 4-181a (a) (1). Second, “[o]n a showing of changed conditions, the agency may reverse or modify the final decision, at any time, at the request of any person or on the agency’s own motion. . . .” General Statutes § 4-181a (b). Finally, “[t]he agency may . . . modify a final decision to correct any clerical error. . . .” General Statutes § 4-181a (c).

In our review of the record, we find no evidence that the April letter was prompted by a petition for reconsideration on any of the grounds set forth by § 4-181a. Accordingly, we conclude that the April letter does not constitute a reconsideration of the department’s January order.

The judgment is affirmed.

In this opinion the other judges concurred.

       CTC Communications Corporation intervened as a defendant in this case.

       Nonrecurring charges are incurred for “one-time” services. A migration charge is a type of nonrecurring charge incurred when a customer of the telephone company changes its service provider from the telephone company to a certified local exchange carrier, but the customer continues to use the telephone company’s facilities (telephone line).

       General Statutes § 16-35 provides: “(a) Any person, including but not limited to a company, town, city, borough or corporation aggrieved by any order, authorization or decision of the Department of Public Utility Control, except an order, authorization or decision of the department approving the taking of land, in any matter to which such person was or ought to have been made a party or intervenor, may appeal therefrom in accordance with the provisions of section 4-183. Such person so appealing shall give bond to the state, with sufficient surety, for the benefit of the adverse party, in such sum as the department fixes, to pay all costs in case such person fails to sustain such appeal. No municipality or political subdivision shall be determined not to be aggrieved solely because there are other persons who are similarly affected by the order, authorization or decision of the department.
      “(b) Any person who may appeal an order, authorization or decision of the department under subsection (a) of this section who was an intervenor or, after timely application, was denied intervenor status to the department proceeding, shall be limited to raise on appeal only those issues that (1) such person addressed during the proceeding or were addressed in the final decision or (2) such person raised in his request for intervenor status if he was denied intervenor status.”

       CTTel is a certified local exchange carrier. In its motion, CTTel alleged that the telephone company implemented only two of the seventeen nonrecurring migration charges required pursuant the January order.


author: O’CONNELL, J.

text:
    STATE OF CONNECTICUT v. VICTOR JORDAN
    (AC 20540)
    Foti, Mihalakos and O’Connell, Js.
    Argued December 14, 2000 —
    officially released July 3, 2001

      Kirstin B. Coffin, special public defender, for the appellant (defendant).

      Richard F. Jacobson, special assistant state’s attorney, with whom, on the brief, was Robert M. Brennan, senior assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault in the third degree in violation of General Statutes § 53a-61 (a) (1) and unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a). The jury found the defendant not guilty of criminal possession of a pistol or revolver. The defendant claims that the trial court improperly (1) denied his motion to dismiss the assault charge, (2) denied his motion to dismiss the unlawful restraint charge, (3) deprived him of a fair trial because of prosecutorial misconduct and (4) made an improper evidentiary ruling. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and the victim lived together in a second floor apartment with the victim’s three children and her sixteen year old cousin. The victim’s parents lived on the first floor with her uncle and her twenty-one year old sister. On the morning of February 14, 1999, the defendant and the victim engaged in an argument that escalated when the victim attempted to go downstairs to her mother’s apartment. As she started to leave, the defendant pulled her back up the stairs by her hair and then pinned her shoulders to the bed so that she could not get up. She called for her mother, who arrived shouting, “Enough is enough.” When the victim’s mother went back downstairs, she told her husband that “[h]e’s going to kill her. He’s going to hit her in the head with the juice bottle.”

During the altercation, the defendant struck the victim in the face and threatened that if she called the police she would pay for it, that he would kill the police, burn down the house and that there would be bloodshed. Throughout the altercation, the victim cried and feared physical harm if she called the police. The defendant hit the victim with a juice bottle, and other occupants of the building heard and saw the victim crying. This incident was a continuation of four months of physical abuse. Because the family feared further violence if the police were called, under a guise of leaving for work, the victim’s uncle left the house and called the police from a corner telephone booth. When the police arrived at the house, they observed that the victim’s hair was in disarray, that she was nervous and that she had a red mark on her face.

I

The defendant first claims that there was insufficient evidence to support his conviction of assault in the third degree and, therefore, the trial court improperly failed to dismiss that count.

We determine whether the evidence is sufficient to support a jury verdict by employing a familiar two part test. “We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. . . . [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. ” (Citation omitted; internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 132-33, 646 A.2d 169 (1994).

“It is well settled that in reviewing a defendant’s challenge to a verdict based on insufficient evidence, we defer to the jury. We do not sit as a seventh juror empowered to cast an overriding vote over the jury of six that actually heard the case.” State v. Brunori, 22 Conn. App. 431, 434-35, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990). In determining whether the evidence would support a finding of guilt beyond a reasonable doubt, the law “does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rationale trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983).

A person is guilty of assault in the third degree in violation of § 53a-61 when he causes “physical injury” to the victim. Physical injury is defined as “impairment of physical condition or pain . . . .” General Statutes § 53a-3 (3); State v. Henderson, 37 Conn. App. 733, 743, 658 A.2d 585, cert. denied, 234 Conn. 912, 660 A.2d 355 (1995). In this case, the evidence showed that the defendant struck the victim in the face, grabbed her by the shirt, pinned her shoulders to the bed, wrapped her up like a rubber band and pulled her hair. The jury reasonably could have inferred that these acts caused pain to the victim, and the defendant’s intent to cause that pain could have been inferred from his conduct and the surrounding circumstances. State v. Smith, 35 Conn. App. 51, 63-66, 644 A.2d 923 (1994). Applying the two part sufficiency test, we conclude that there was sufficient evidence to support the defendant’s conviction of assault in the third degree.

II

The defendant next argues that there was insufficient evidence to support his conviction of unlawful restraint in the first degree and, therefore, the trial court improperly denied his motion to dismiss that count. Section 53a-95 (a) provides that “[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.” “ ‘Restrain’ means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty ... by confining him ... in the place where the restriction commences . . . .” General Statutes § 53a-91 (1).

The defendant concedes that he restrained the victim but argues that the evidence does not support a finding that it exposed her to a substantial risk of physical injury. He contends that, at most, he could be guilty only of unlawful restraint in the second degree, which does not require exposure to a substantial risk of physical injury.

To convict a defendant of unlawful restraint in the first degree, no actual physical harm must be demonstrated; the state need only prove that the defendant exposed the victim to a substantial risk of physical injury. State v. Fields, 31 Conn. App. 312, 331, 624 A.2d 1165, cert. denied, 226 Conn. 916, 628 A.2d 989 (1993). The question before us is whether, under the facts of this case, any rational jury could have found that the defendant exposed the victim to a substantial risk of injury. We conclude that a rational jury could have so found.

The jury reasonably could have found that the defendant not only exposed the victim to physical injury, but, by its guilty verdict of assault in the third degree, also that he actually had inflicted physical injury on her. This jury finding of actual physical injury encompasses the statutory requirement of mere exposure to physical injury necessary to obtain a conviction of unlawful restraint in the first degree. Both prongs of the two part test, referred to in part I of this opinion, are satisfied. Accordingly, we conclude that there was sufficient evidence to support a conviction of unlawful restraint in the first degree.

Ill

The defendant next claims that he was deprived of a fair trial by a pattern of prosecutorial misconduct. The following additional facts are necessary for the disposition of this claim. At trial, the defendant had been charged with, among other crimes, criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c. An element of this crime is that the defendant previously had been convicted of a felony. The state and the defendant stipulated that the jury could be informed that the defendant had been convicted of a class B felony. Pursuant to the stipulation, the court instructed the jury that the defendant had been convicted of a class B felony but did not inform the jury of the nature of the felony. During closing argument, the prosecutor referred to the defendant as “a guy who has killed somebody.” This apparently was a reference to the defendant’s prior manslaughter conviction. The defendant now argues that the statement was improper because the court made it clear that the jury was not supposed to know the nature of the class B felony. The defendant, however, failed to object when the remark was made and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

In Golding, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) Id. “The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” (Internal quotation marks omitted.) State v. Williams, 60 Conn. App. 575, 578-79, 760 A.2d 948, cert. denied, 255 Conn. 922, 763 A.2d 1043 (2000); see also State v. Peterson, 51 Conn. App. 645, 654, 725 A.2d 333, cert. denied, 248 Conn. 905, 731 A.2d 310 (1999).

In the present case, we focus on the third prong, i.e., that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial. “[T]o deprive a defendant of his constitutional right to a fair trial, however, the prosecutor’s conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. . . . [M] ore-over . . . [Golding] review of such a claim is unavailable where the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial . . . .” (Internal quotation marks omitted.) State v. Correa, 241 Conn. 322, 356-57, 696 A.2d 944 (1997); State v. Beall, 61 Conn. App. 430, 442, 769 A.2d 708, cert. denied, 255 Conn. 954, 772 A.2d 152 (2001); see Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982).

The defendant’s reliance on State v. Butler, 55 Conn. App. 502, 739 A.2d 732 (1999), aff'd, 255 Conn. 828, 769 A.2d 697 (2001), is misplaced. In Butler, the defendant moved for a mistrial immediately after the improper remarks were made, and the trial court lambasted the state’s attorney in exceptionally harsh language. After a lunch recess, the defendant filed a written motion for dismissal, mistrial, surrebuttal time or a corrective instruction. Id., 506. “Despite stating that the prosecutor’s comment was prejudicial, improper and unprofessional, the court denied the defendant’s motions for dismissal and a mistrial, but granted the request for a curative instruction.” Id. Those strong comments from the court and the defendant’s objection distinguish Butler from the present case in which neither the defendant nor the court objected to or commented on the state’s argument, nor did the defendant request a curative instruction. We may infer that in the atmosphere of the trial the defendant did not regard the remarks as seriously prejudicial. See State v. Cox, 50 Conn. App. 175, 180, 718 A.2d 60 (1998), aff'd, 251 Conn. 54, 738 A.2d 652 (1999).

The defendant argues that the court had a duty to give a cautionary instruction sua sponte. In State v. Wragg, 61 Conn. App. 394, 399, 764 A.2d 216 (2001), we discussed sua sponte jury instructions. We concluded that “when opposing counsel does not object to evidence, it is inappropriate for the trial court to assume the role of advocate and decide that the evidence should be stricken. . . . The court cannot determine if counsel has elected not to object to the evidence for strategy reasons. . . . Experienced litigators utilize the trial technique of not objecting to inadmissible evidence to avoid highlighting it in the minds of the jury. Such court involvement might interfere with defense counsel’s tactical decision to avoid highlighting the testimony. When subsequent events reveal that it was an imprudent choice, however, the defendant is not entitled to turn the clock back and have [the appellate court] reverse the judgment because the trial court did not, sua sponte, strike the testimony and give the jury a cautionary instruction. No limiting instruction was given at the time [of the offending] remark and none was required because none was requested.” (Citations omitted; internal quotation marks omitted.) Id. We discern no distinction, for this purpose, between offensive testimony and an inappropriate comment in closing argument and conclude that the court had no duty to give a sua sponte correcting instruction.

The burden is on the defendant to show that the state’s attorney’s remarks were prejudicial in light of the entire proceeding. State v. Butler, supra, 55 Conn. App. 508. In this case, the jury did not learn something new. It already had heard twice from a defense witness on cross-examination that the defendant had been involved in a murder case. Closing argument is properly based on evidence presented during trial. Id., 521 (Foti, J., dissenting). Because the witness had placed the defendant’s previous involvement in a homicide prosecution into evidence, we cannot conclude that the defendant has carried his burden of showing that the state’s attorney’s remark was prejudicial. Even if we concluded that the state’s attorney’s remark was improper, it did not infect the entire trial with unfairness so as to make the resulting conviction a denial of due process.

We conclude that there was no pattern of prosecutorial misconduct and that the prosecutor’s sole, isolated comment did not deprive the defendant of a fair trial. The defendant has not satisfied the third prong of Golding and, therefore, he cannot prevail on this claim.

IV

The defendant’s final claim is that the court made an improper evidentiary ruling when it allowed the state to inquire as to whether he previously had hit the victim. On appeal, the state contends that the question and answer were admissible as tending to show whether the victim was in fact exposed to a substantial risk of physical injury.

A trial court’s ruling on the admissibility of evidence is entitled to great deference. State v. Valentine, 255 Conn. 61, 69, 762 A.2d 1278 (2000). “[T]he trial court has broad discretion in ruling on the admissibility . . . of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moveover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of a substantial prejudice or injustice.” (Internal quotation marks omitted.) States v. Fisher, 57 Conn. App. 371, 375, 748 A.2d 377, cert. denied, 253 Conn. 914, 754 A.2d 163 (2000). There is no merit to the defendant’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-61 (a) provides in relevant part: “A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person . . . .”

       General Statutes § 53a-95 (a) provides: “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.”

       Although the defendant filed several motions to dismiss, he did not file such a motion addressed to the assault count. Despite that oversight, the trial court gratuitously considered and denied the “motion,” although referring to it as a motion to acquit. Because the defendant includes this ruling as an issue on appeal, we will consider it.

       General Statutes § 53a-96 (a) provides: “A person is guilty of unlawful restraint in the second degree when he restrains another person.”

       See part I of this opinion.

       General Statutes § 53a-217c (a) provides in relevant part: “A person is guilty of criminal possession of a pistol or revolver when such person possesses a pistol or revolver . . . and (1) has been convicted of a felony .. . .”

       In another case, the defendant apparently had been charged with murder but was convicted of the lesser included offense of manslaughter in the first degree.

       The parties stipulated a follows:
      “[Assistant State’s Attorney]: I believe the defense and the state will enter into a stipulation so the state does not have to go through the trouble of bringing in people to testify that the defendant was convicted of a B felony prior to 1991.

      “The Court: [Defense Counsel]?
      “[Defense Counsel]: No objection, Your Honor. That’s one of the elements of the weapons charge, and the defense agrees to that stipulation.
      “The Court: All right then. That is evidence for the jury to consider. It’s a stipulation by the parties that the defendant, in fact, had a previous conviction for a felony — B felony. And, I’ll explain the significance of that when I instruct you on the law.”

       The following exchange took place during cross-examination of a defense witness:
      “[Assistant State’s Attorney]: Why don’t you tell us how you knew him in ’89?
      “[Witness]: Because that family had me go against [the defendant] on a murder case?

      “Q. You testified against him?
      “A. Yes.
      “Q. He get convicted?
      “A. I’m not sure.

        “Q. So, you testified against him in a murder case?
      “A. Yes. . . .
      * ** *
      “Q. And, you spoke earlier about the fact that you testified against the defendant in a homicide trial, correct?
      “A. Correct.
      “Q. You were the principal eyewitness against him?
      * •* *
      “A. I was not an eyewitness. I was a witness.” (Emphasis added.)

       In Butler, the trial court indicated its strong disapproval of the state’s attorney’s remarks immediately after the court had excused 1he jury in the following words: “That is absolutely some of the most impermissible argument I have heard. ... I am so upset about this, and I am going to think about it during the lunch hour, but you might think about what I might send to the New York District Attorney.” State v. Butler, supra, 55 Conn. App. 506. A footnote in the Butler decision indicates that “[tjhis was the prosecutor’s final case before going to work in the district attorney’s office in Brooklyn, New York.” (Internal quotation marks omitted.) Id., 506 n.4.

       See footnote 9.


text:
    BANKERS TRUST OF CALIFORNIA, N.A. v. RETHA M. NEAL ET AL.
    (AC 20439)
    Lavery, C. J., and Dranginis and O’Connell, Js.

      Argued February 15 —
    officially released July 3, 2001

      Sid M. Miller, for the appellants (defendant Joshua Hecht et al.).

      Geoffrey K. Milne, for the appellee (substitute plaintiff).
   Opinion

O’CONNELL, J.

In 1998, Bankers Trust of California, N.A. (Bankers Trust), commenced an action against the defendants, Retha M. Neal and Charles Neal, Jr., to foreclose an $85,700 mortgage on property that the Neals owned in New Haven. Also named as defendants were Joshua Hecht and Bluma Hecht, who held a $20,000 purchase money second mortgage on the premises. Because the Neals did not participate in this action, we refer to the Hechts as the defendants.

The defendants claim that the trial court improperly rendered judgment (1) without an evidentiary hearing on the amended complaint and (2) in reliance on the plaintiffs affidavit that the mortgage note had been lost. We affirm the judgment of the trial court.

I

While this appeal was pending, the trial court opened the judgment and set new law days. The defendants took an amended appeal, claiming that the court improperly rendered a modified foreclosure judgment that changed the law days (1) on oral motion, (2) without good cause and (3) "without prior notice to the defendants. Regardless of which party prevails on the issues raised in the amended appeal, new law days will have to be set. Therefore, there is no practical relief that this court could grant on the defendants’ claims.

Despite acknowledging that those issues may be moot, the defendants “offer this court an opportunity for salutary observations” concerning foreclosure proceedings. The Appellate Court has no jurisdiction to adjudicate a case that is not justiciable. See State v. Nardini, 187 Conn. 109, 111, 445 A.2d 304 (1982). Moot or academic questions do not present justiciable issues, and the court may not be used to obtain judicial opinions on points of law. State v. Macri, 189 Conn. 568, 569, 456 A.2d 1203 (1983). Accordingly, we decline the defendants’ invitation to render salutary observations on the law of foreclosure. The amended appeal is dismissed as moot.

II

The following facts and procedural history are necessary for disposition of the initial appeal. Bankers Trust assigned its mortgage to United Companies Lending Corporation (United), and on January 3, 2000, the trial court substituted United as the plaintiff. United lost the mortgage note and, at the foreclosure hearing, submitted an affidavit stating that although it could not find the note, it had been assigned the mortgage and was entitled to judgment. On January 3, 2000, the court found the value of the property to be $127,000 and found the debt to United to be $128,347.31. The court set law days commencing March 6, 2000.

The defendants do not claim that the mortgage to Bankers Trust was invalid, nor do they claim that United lacks authority pursuant to General Statutes § 52-118 to foreclose it in its own name as an assignee; see Dime Savings Bank of Wallingford v. Arpaia, 55 Conn. App. 180, 184, 738 A.2d 715 (1999); or to foreclose it in the name of Bankers Trust. See Jacobson v. Robington, 139 Conn. 532, 539, 95 A.2d 66 (1953). Instead, they argue that United did not timely present them with the lost note affidavit and that they were surprised to see it at the foreclosure hearing. They now have had adequate time to study the affidavit, and a reversal because they were surprised last time would accomplish nothing. The law is clear that it is unnecessary for a plaintiff to possess a note at the time it was lost. New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 759-60, 680 A.2d 301 (1996).

The defendants raise numerous questions concerning possible technical errors in the pleading and processing of the case in the trial court, but we are unable to discern what practical relief we can grant to the defendants. The best they could achieve would be a remand for new proceedings. The defendants do not dispute that the note is in default and that United has a right to foreclose the mortgage. New proceedings would not change those facts; the sole result would be a delay in the eventual and inevitable outcome of the case.

It is difficult to equate this appeal with the letter and spirit of Practice Book § 1-8, which provides that “[t]he design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.” Requiring United to go through another foreclosure to correct technical defects, even if they existed, would work injustice and would conflict with the intent of Practice Book § 1-8.

The court stressed to the defendants that the debt exceeded the value of the property. The deficit was calculated as of January 3, 2000, and did not include attorney’s fees, costs and expenses. Accruing per diem interest, appellate counsel fees, and costs and other expenses will result in an ever widening disparity as time passes. When the debt of a prior mortgage exceeds that of a later encumbrance, the latter is worthless because the property contains no equity to satisfy the later encumbrance. Federal Deposit Ins. Corp. v. Bombero, 37 Conn. App. 764, 771, 657 A.2d 668 (1995), appeal dismissed, 236 Conn. 744, 674 A.2d 1324 (1996).

In the matter before us, the defendants could have foreclosed the second mortgage that they hold on the property at any time. We are not furnished with a meaningful answer as to why they have not done so. The only response to our inquiry as to why they did not foreclose their own mortgage was that “it was not practical” to do so. We agree with the court, which stated in response to the defendants’ motion for articulation, that “[i]f the second mortgagee does not believe that [foreclosure of the second mortgage] is a good option from a financial standpoint, that should not be of any concern to [United], because this is precisely the risk for which the second mortgagee bargained.”

United points out that the defendants have frustrated its attempt to prosecute this case to conclusion by continuing to appeal each time the court resets the law days. Practice Book § 61-11 (a) provides for an automatic stay on the enforcement of a judgment until the final determination of an appeal. Practice Book § 61-11 (c) confers authority on the court to terminate the automatic stay if the judge is of the opinion that the appeal is taken only for delay or that the administration of justice so requires.

In the present case, on two occasions, the court terminated automatic stays on the grounds that appeals were taken for the purpose of delay and that due administration of justice required enforcement of the judgment by the setting of law days. With that history in mind, United asks that the defendants be enjoined from filing further appeals from the setting of law days. Under the circumstances, that is not an unreasonable request.

The judgment is affirmed and the case is remanded with direction to set new law days, and the defendants are enjoined from filing further appeals from the setting of new law days without prior approval from the trial court. See Rothstein v. Trantino, 228 Conn. 854, 855 n.1, 635 A.2d 813 (1994).

In this opinion the other judges concurred.

       The Neals were defaulted for failure to appear and subsequently received a discharge in bankruptcy.

       General Statutes § 52-118 provides in relevant part: “The assignee and equitable and bona fide owner of any chose in action, not negotiable, may sue thereon in his own name. . . .”

         Practice Book § 61-11 (a) provides in relevant part: “Except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment shall be automatically stayed until the time to take an appeal has expired. If an appeal is filed, such proceedings shall be stayed until the final determination of the cause. . .

       Practice Book § 61-11 (c) provides in relevant part: “If the judge who tried the case is of the opinion that (1) an extension to appeal is sought, or the appeal is taken, only for delay or (2) the due administration of justice so requires, the judge may at any time, upon motion and hearing or sua sponte, order that the stay be terminated.”