text:
    ALCO STANDARD CORPORATION v. ROBERT CHARNAS ET AL.
    (AC 19253)
    O’Connell, C. J., and Foti and Healey, Js.

      Argued December 14, 1999
    officially released February 8, 2000

      David S. Feldman, for the appellants (defendants).

      Jeffrey R. Martin, for the appellee (plaintiff).
   Opinion

FOTI, J.

The defendants, Robert Chamas and Joan Chamas, appeal from the judgment of strict foreclosure rendered by the trial court. On appeal, the defendants claim that the court improperly (1) concluded that the promissory note did not require notice of default for nonpayment and (2) rendered summary judgment as to liability. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. As part of a settlement of another action, the defendants executed a promissory note in favor of the plaintiff in the amount of $100,000. The note was secured by a mortgage on the defendants’ home in Glastonbury. The note and mortgage were given in 1995 to secure a disputed claim by the plaintiff against CSA, Inc., and Robert Charnas, in which Charnas guaranteed the lease of office equipment by CSA, Inc., from the plaintiff. In consideration of the plaintiffs agreement not to pursue available prejudgment remedies, the defendants provided the subject note and mortgage. They were given to secure, up to $100,000, any judgment obtained by the plaintiff against CSA, Inc., and Robert Charnas. The note and mortgage were without recourse as to the defendant Joan Charnas.

On or about October 23, 1997, the parties stipulated to a judgment in the amount of $140,000 in favor of the plaintiff against CSA, Inc. On April 17,1998, the plaintiff brought the present action. On April 29,1998, the defendants moved to dismiss because “the plaintiff, pursuant to the terms of the note, has not yet put the note into default.” The court, Leheny, J., denied the defendants’ motion, noting that the promissory note did not require a notice of default or any opportunity to cure when the default was for failure to make payments required thereunder.

On November 13, 1998, the plaintiff moved for summary judgment. At that time, although some payments had been made on the obligation, the balance on the judgment, including interest, amounted to $113,808.24. The defendants objected to the motion for summary judgment, claiming that there existed a genuine issue of material fact as to “whether the note is properly in default [such] that the plaintiff is not entitled to judgment as a matter of law.” On December 7, 1998, the court, Graham, J., granted the plaintiffs motion for summary judgment as to liability only, noting that “[t]he note does not require notice of default for nonpayment. There is no genuine issue of material fact in dispute, and the plaintiff is entitled to judgment as a matter of law.” On January 17, 1999, the court, Shortall, J., rendered a judgment of strict foreclosure.

The sole issue on appeal is whether the terms of the note require notice and an opportunity to cure when the default lies in nonpayment, as is the case under the note’s terms for nonmonetary defaults.

A promissory note is nothing more than a written contract for the payment of money, and, as such, contract law applies. SKW Real Estate Ltd. Partnership v. Gallicchio, 49 Conn. App. 563, 574, 716 A.2d 903, cert. denied, 247 Conn. 926, 719 A.2d 1169 (1998). In construing a contract, the controlling factor is normally the intent expressed in the contract, “not the intent which the parties may have had or which the court believes they ought to have had.” (Internal quotation marks omitted.) Robinson v. Weitz, 171 Conn. 545, 551, 370 A.2d 1066 (1976). “Where . . . there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law. ... In such a situation our scope of review is plenary, and is not limited by the clearly erroneous standard.” (Citations omitted; internal quotation marks omitted.) De Leonardis v. Subway Sandwich Shops, Inc., 35 Conn. App. 353, 357, 646 A.2d 230, cert. denied, 231 Conn. 925, 648 A.2d 162 (1994). “The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity.” (Internal quotation marks omitted.) Sturman v. Socha, 191 Conn. 1, 11-12, 463 A.2d 527 (1983).

The relevant language in the note is as follows: “If any payment due hereunder shall not have been paid within ten (10) days after the same is due, or if any other agreement of the Maker herein contained shall be in default and shall not have been fully performed within thirty (30) days after written notice of default has been mailed to Maker ... or if title to said Property is transferred other than by operation of law, then the entire unpaid principal, at the option of Holder, shall become immediately due and payable without notice or demand.”

The language of the note is clear and unambiguous; it differentiates between monetary and nonmonetary defaults, and provides for notice of default and an opportunity to cure only with reference to the latter. The default in this case was for failure to make payments as promised. Therefore, there was no obligation to provide notice of default. We do not agree with the defendants’ argument that any default, including nonpayment, requires a notice of default and an opportunity to cure. That interpretation flies in the face of the note’s clear language and would cause the entire first phrase of the default paragraph to be without a specific legal meaning. Clearly, the language addresses two separate and distinct alternatives that would cause the unpaid principal to become immediately due. Those are (1) payment not being made as promised or (2) the occurrence of some other violation of the agreement that is not cured within thirty days of written notice.

Because the note did not require notice of default for failure to make payment, there was no genuine issue of material fact, and summary judgment as to liability was properly rendered.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants argue on appeal that because the stipulated judgment in the other action allowed for a conditional stay of execution of that judgment agreed to by the parties at the time that judgment was rendered, and because some payments were made thereafter, then by necessity a genuine issue of fact exists as to a default. This issue does not appear to have been raised before the trial court; the only issue of fact claimed by the defendants was the notice requirement pursuant to the terms of the note.


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ORIEN THOMAS
    (AC 18512)
    Foti, Lavery and Daly, Js.
    Argued December 3, 1999
    officially released February 8, 2000

      Eugene P. Falco, special public defender, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Thomas O'Brien, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Orien Thomas, appeals from the judgment of conviction, rendered after a jury trial, of criminal possession of a pistol in violation of General Statutes § 53a-217c (a) (l) and reckless endangerment in the second degree in violation of General Statutes § 53a-64. The defendant was found not guilty on a third count charging him with unlawful discharge of a firearm in violation of General Statutes § 53-203. On appeal, the defendant claims that the trial court improperly denied his motion for judgment of acquittal because (1) the evidence was insufficient to sustain the conviction on both charges and (2) the conviction of reckless endangerment in the second degree must be set aside as legally and factually inconsistent with the verdict of not guilty of the charge of unlawful discharge of a firearm. The defendant also claims that the court improperly instructed the jury on consciousness of guilt being inferred from flight. We reverse the judgment of the trial court in part.

The jury reasonably could have found the following facts. On Sunday, April 27,1997, at approximately 12:30 p.m., the police received an anonymous report of gunshots in the area of Edgewood Avenue and Kensington Street in New Haven. The police responded within minutes. The area is predominantly residential, with a park and playground nearby.

On the basis of the information they received, the police were looking for a black male with a bandage on his head who was wearing an orange jacket, black trousers and a baseball cap. Officer Joseph Redente, having received information that someone fitting that description was at the corner of Chapel and Kensington Streets, proceeded to that location and observed the defendant alone on the corner. The defendant matched the description of the person who had been reported as having fired the shots. The defendant was looking up Kensington Street at other officers who responded to the call. As the police proceeded toward the defendant, Redente, who had not been observed, saw the defendant run quickly out of the oncoming officers’ view and into an alleyway at 1349 Chapel Street, which runs between Chapel and Kensington Streets. It took Redente five or six seconds to reach the entrance to the alleyway; by that time, the defendant was not there. Redente advised other officers of what was happening and blocked off the Chapel Street end of the alleyway. At the other end, Officer Edwin Vincent, who was approaching, observed the defendant run out of the alley onto Kensington Street. Vincent immediately attempted to secure the defendant, who began struggling. With the aid of a fellow officer, Vincent secured the defendant and, along with Redente, who had just arrived, searched him for weapons. No weapon was found. The defendant did have on his person two nine millimeter Winchester Luger cartridges.

A search of the alleyway was conducted immediately after the defendant’s arrest, and a pistol was found secreted under a bag of garbage. The pistol found was a nine millimeter Smith and Wesson semiautomatic Luger, containing nine Winchester Luger cartridges identical to those found on the defendant. Thereafter, the police located two “freshly fallen” spent shells. Both were nine millimeter Winchester Luger casings, which had been fired from the pistol recovered in the alleyway. Except for the defendant, no one had entered or exited the alleyway from the time Redente followed him there until after the area was searched. The time between the apprehension of the defendant and the police radio dispatch was approximately two to three minutes. The two shots had been fired into the ground. There were no witnesses at trial as to the shooting.

I

The defendant first claims that the evidence was insufficient to sustain his conviction. “In reviewing a sufficiency of evidence claim on appeal the question presented is whether, viewing the evidence favorably to sustaining the verdict, the trier could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Haddad, 189 Conn. 383, 387, 456 A.2d 316 (1983).” State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985). The probative force of the evidence is not diminished where the evidence, in whole or in part, is circumstantial rather than direct. State v. Clark, 56 Conn. App. 108, 111, 741 A.2d 331 (1999).

A

The defendant claims that the evidence was insufficient to prove beyond a reasonable doubt that he possessed the pistol. He argues that the state’s case was based on circumstantial evidence that “never achieved the level of consistency and trustworthiness necessary to prove guilt beyond a reasonable doubt.”

Without resorting to a recitation of the facts and circumstances as presented to the jury as evidence, we conclude that when that evidence is construed in the light most favorable to sustaining the verdict, the jury could have reasonably concluded, on the basis of the cumulative effect of the facts established and the inferences drawn from those facts, that the defendant was guilty beyond a reasonable doubt of criminal possession of a pistol. The state presented a strong circumstantial case. While it is true that the state presented no witness who saw the defendant in possession of the pistol, such lack of direct evidence is not fatal to the state’s burden of proof. The probative force of circumstantial evidence may be as strong as direct evidence. See State v. Baldwin, 224 Conn. 347, 368, 618 A.2d 513 (1993); State v. Allen, 216 Conn. 367, 380-81, 579 A.2d 1066 (1990). As to the defendant’s claim that the evidence was inconsistent or untrustworthy, it is the function of the jury to pass on the credibility of the witnesses; State v. Robinson, 213 Conn. 243, 256, 567 A.2d 1173 (1989); and to draw whatever inferences from the evidence or facts established by the evidence that it deems reasonable and logical. State v. Stanley, 223 Conn. 674, 681, 613 A.2d 788 (1992).

The evidence was sufficient to sustain the defendant’s conviction for criminal possession of a pistol.

B

The defendant claims that the state failed to present sufficient evidence to prove him guilty beyond a reasonable doubt of reckless endangerment in the second degree. We agree.

To prove the defendant guilty under § 53a-64, the state had to prove beyond a reasonable doubt that he recklessly engaged in conduct that created a risk of physical injury to another person. While the state’s evidence may have been sufficient to establish that the defendant’s action in firing his pistol into the ground was reckless conduct, there was no evidence that it created a risk of physical injury to someone other than the defendant. The jury was left to speculate as to whether anyone was in the area who was endangered.

The state argues that there “may have been numerous adults and children congregating in the immediate vicinity,” but it presented no evidence that even a single person, other than the defendant, was there. In support of its argument, the state asserts that when the police arrived, local residents pointed out one of two spent shell casings and gave police a description of the shooter. Because of this, according to the state, the jury had sufficient evidence from which to conclude that those individuals might have been exposed to a risk of physical injury resulting from the gunfire. The fact that people were there when the police arrived is of no consequence, nor is the fact that someone called in a report of shots being fibred. It is just as plausible that those people had been in their homes when the shooting took place, and came out only after hearing the shots and then observed the defendant.

While it is likely that there were people in the immediate area because the day was sunny, the weather mild, and the time of day just after noon, the burden of proving an element of the crime charged rests firmly on the state. The state’s burden of proving beyond a reasonable doubt that another person was put at risk of physical injury because of the defendant’s conduct was not met.

II

The defendant next claims that the court’s jury instruction concerning consciousness of guilt was not supported by the evidence and allowed the jury to infer flight from an inadequate basis. We disagree.

The court instructed as follows: “In any criminal trial, it is permissible for the state to attempt to show that conduct of the defendant after the alleged offense was influenced by the criminal act. That is, that the conduct shows a consciousness of guilt. The conduct of a person attempting to leave the scene of an alleged crime may be considered in determining guilt since, if unexplained, it may show a consciousness of guilt. The attempted flight of the person accused of the crime is a circumstance which, when considered together with all of the facts, may justify an inference of the accused’s guilt. Attempted flight, however, even if shown, is not conclusive. It is circumstantial evidence and you may or may not infer consciousness of guilt from it. It is to be given the weight to which you think it is entitled under all of the circumstances shown. Keep in mind that there can be other reasons for a defendant’s alleged attempted flight. That attempted flight does not necessarily reflect feelings of guilt and [those] feelings of guilt which are sometimes present in innocent people do not necessarily reflect actual guilt. So, attempted flight is not sufficient in and of itself to establish guilt. It is up to you, as judges of the facts, to decide whether or not, based upon the totality of the circumstances, conduct of the defendant reflects consciousness of guilt, assuming, of course, that you first find that the defendant attempted to flee.”

The evidence presented established that the defendant left the scene after firing the pistol, ran when he saw police approaching him and ran from the alley after hiding the gun.

Our Supreme Court has stated: “Flight, when unexplained, tends to prove a consciousness of guilt. . . . Flight is a form of circumstantial evidence. Generally speaking, all that is required is that the evidence have relevance, and the fact that ambiguities or explanations may exist which tend to rebut an inference of guilt does not render evidence of flight inadmissible but simply constitutes a factor for the jury’s consideration. . . . The probative value of evidence of flight depends upon all the facts and circumstances and is a question of fact for the jury.” (Citations omitted; internal quotation marks omitted.) State v. Holloway, 209 Conn. 636, 651-52, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989). “ ‘The fact that the evidence might support an innocent explanation as well as an inference of a consciousness of guilt does not make an instruction on flight erroneous.’ State v. Wright, 198 Conn. 273, 281, 502 A.2d 911 (1986).” State v. Freeney, 228 Conn. 582, 594, 637 A.2d 1088 (1994).

“It is relevant to show the conduct of an accused, as well as any statement made by him subsequent to an alleged criminal act, which may be inferred to have been influenced by the criminal act. State v. Reid, 193 Conn. 646, 655, 480 A.2d 463 (1984). ... The court must weigh the probative value against any prejudicial effect on the defendant.” (Citations omitted.) State v. Burak, 201 Conn. 517, 533, 518 A.2d 639 (1986). “Because of the difficulties inherent in [the probative-prejudicial] balancing process, the trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.” (Internal quotation marks omitted.) State v. Perry, 48 Conn. App. 193, 201, 709 A.2d 564, cert. denied, 244 Conn. 931, 711 A.2d 729 (1998).

On the basis of our review of the transcripts and evidence, we cannot say that the court abused its discretion in determining that the evidence of flight or attempted flight was more probative than prejudicial, nor can we conclude that an injustice appears to have been done. The evidence was sufficient to support the consciousness of guilt instruction. The court properly instructed the jury on the factors to consider in determining whether to infer consciousness of guilt from the evidence and properly instructed the jury that it was to determine the weight to be accorded to such evidence in making its determination. We conclude that the court’s charge on consciousness of guilt was not improper.

The judgment is reversed only as to the conviction of reckless endangerment in the second degree and the case is remanded with direction to render judgment of not guilty of that charge. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       General Statutes § 53a-217c (a) provides in relevant part: “A person is guilty of criminal possession of a pistol or revolver when he possesses a pistol or revolver, as defined in section 29-27, and (1) has been convicted of a felony . . . .”

       The defendant was convicted on this charge as a lesser included offense of reckless endangerment in the first degree. General Statutes § 53a-63. General Statutes § 53a-64 (a) provides: “A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a risk of physical ipjury to another person.”

       For purposes of the charge of criminal possession of a pistol, the parties stipulated at trial that the defendant had previously been convicted of a felony.

       The defendant was sentenced to five years imprisonment for criminal possession of a pistol, and a consecutive six month term for reckless endangerment in the second degree.

       Because we conclude that the evidence was insufficient to establish guilt beyond a reasonable doubt .as to the charge of reckless endangerment in the second degree, we find it unnecessary to address the defendant’s claim that his conviction on that charge was factually and legally inconsistent with his acquittal of the charge of unlawful discharge of a firearm.


text:
    STATE OF CONNECTICUT v. MICHAEL K. HANNON
    (AC 18208)
    Foti, Hennessy and Mihalakos, Js.

      Argued December 1, 1999
    officially released February 8, 2000

      William S. Palmieri, with whom, on the brief, was John R. Williams, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Edward R. Narus, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Michael K. Hannon, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). On appeal, the defendant claims that the trial court improperly instructed the jury on causation. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On October 16, 1994, at approximately 3:30 p.m., the defendant stole two cartons of cigarettes from a convenience store in Tolland and fled in his automobile. The police were informed of the theft and were furnished the description of the defendant and his vehicle. Shortly thereafter, Trooper Rafael Morales of the Connecticut state police spotted the defendant’s vehicle on Interstate 84 and attempted to catch up to it without using his emergency lights or siren. When the defendant saw the trooper’s vehicle, he exited the highway and turned onto Route 30 northbound. At that point, Morales turned on his lights and siren and followed the defendant. The defendant went through one red light at an intersection at a speed of approximately sixty miles per hour. Morales slowed to about forty miles per hour and turned off his lights and siren. The defendant continued northbound on Route 30 through traffic at nearly seventy miles per hour, cutting off cars and approaching the intersection with Parker Road. When he was about 300 feet from the intersection, the traffic light ahead of him turned red. The defendant, driving at a speed close to eighty miles per hour, neither slowed nor stopped but struck a vehicle in the intersection driven by one of the victims, Michael Mission, who had been southbound on Route 30 and was turning left across the northbound lane. Mission, who was sixty-nine years old, was seriously injured and was taken to Hartford Hospital for emergency treatment. After colliding with the Mission car, the defendant’s vehicle spun out of control and struck a second vehicle that was firming right from Parker Road onto Route 30.

Mission, who was admitted to the hospital’s intensive care unit, suffered multiple broken ribs, some of which punctured his lungs, a fractured sternum, a small subdural hematoma and a fracture of the fibula. He also was bleeding within the liver, and had some bruising or bleeding in the adrenal gland and some bruising to the kidneys. At the time of his admission, Mission’s injuries were serious and life threatening. An epidural catheter was inserted to administer medication, and he was placed on a ventilator. Mission also had an endotracheal tube inserted. While in intensive care he developed pancreatitis.

By October 31, 1994, Mission appeared to be recovering somewhat, but his condition worsened due to the pancreatitis. He died on November 6, 1994, as a result of injuries related directly to the collision between his and the defendant’s vehicles.

The defendant’s sole claim, which he concedes is unpreserved, is that the court improperly instructed the jury on proximate cause in connection with the charge of manslaughter in the first degree. He seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or the plain error doctrine. Practice Book § 60-5.

The defendant claims that the jury could have found that the accident was the result of Mission’s own negligence or that his death was not the direct result of injuries he suffered in the accident but of complications resulting from a heart attack or negligent treatment by the hospital, and that the court failed to articulate adequately the “niceties of the doctrine of intervening cause” and to instruct properly on the theoiy of defense. Because the right to a jury charge on any defense theoiy supported by the evidence is guaranteed by the fifth, sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution, the court, he alleges, committed constitutional error. We review the defendant’s claim because there is an adequate record and the claim is of constitutional dimension.

The court instructed the jury in relevant part as follows: “Now, the third and final element of the crime here is that the defendant’s conduct caused the death of another person. This means that the defendant’s conduct was the proximate cause of the victim’s death. An act or omission to act is the proximate cause of death when it substantially and materially contributes, in a natural and continuous sequence, unbroken by any intervening cause, to the resulting death.

“It ... is a cause without which the death would not have occurred. And it is a predominating cause, a substantial factor, from which the death followed as a natural consequence. It is not necessarily the last active cause or the act in point of time nearest to death.

“The . . . concept of proximate cause incorporates the notion that an accused may be charged with a criminal offense even though his acts were not the immediate cause of death. It is not necessary that the particular kind of harm that results from the defendant’s act be intended or contemplated by him. Where the death or injury caused by the defendant’s conduct is a foreseeable and natural result of that conduct, the law considers the chain of legal causation unbroken and holds the defendant criminally responsible.

“In this case, additionally, you must also consider the doctrine of intervening cause. The defendant claims that his conduct was not the proximate cause of the victim’s death because there was an intervening cause that was the proximate cause of the victim’s death.

“This requires that I explain to you the doctrine of intervening cause. . . . [T]his doctrine refers to a situation in which the defendant’s conduct is a cause and factor of the victim’s death. That is, the victim would not have died but for the defendant’s conduct.

“But, nonetheless, some other circumstance has occurred. And that other circumstance does more than supply a concurring or contributing cause of death, but is, itself, unforeseeable and sufficiently powerful, in its effect, that it serves to relieve the defendant of criminal responsibility for his conduct. In such a case, the defendant’s conduct is not the proximate cause of the victim’s death.

“Thus, the doctrine of intervening cause serves as a dividing line between two closely related factual situations.

“Number one. Where two or more acts or forces, one of which was set in motion by the defendant, combine to cause the victim’s death, in which case, the doctrine of intervening cause will not relieve the defendant of criminal responsibility.

“And, number two. Where an unforeseeable act and force intervenes in such a powerful way as to become the proximate cause of the victim’s death, in which case the doctrine of intervening cause will relieve a defendant whose conduct contributed, in fact, to the victim’s death, from criminal responsibility.

“In other words, when more than one factor contributes, in a chain of events, to cause a victim’s injury, in order to be the proximate cause of that injury, the defendant’s conduct must have been a cause that necessarily set in operation the factors that accomplished that injuiy. Where the other circumstance . . . constitutes a concurring or contributing cause of the victim’s death, in which case . . . the defendant will be held responsible. Or, whether the other circumstance constitutes an intervening cause of the victim’s death, in which case the defendant will not be held responsible, is a question of fact for you, as jurors, to determine.

“Keep in mind, however, the defendant does not have any burden to prove an intervening cause. The burden rests on the state to prove that the defendant’s conduct was the proximate cause of the victim’s death, as I’ve explained the entire doctrine of proximate cause to you.”

Thereafter, the court gave a supplemental instruction at the request of defense counsel. Although he did not object, counsel for the defendant asked the court to clarify that proximate cause issues applied to all four counts of the information relative to the victims’ injuries. The instruction was as follows:

“You’ve heard me in terms of proximate cause. Discussions about proximate cause refer to . . . the doctrine of intervening cause. And just so that you . . . understand what the claim is with respect to intervening cause, there’s two circumstances, during the course of the evidence, where the defense is claiming intervening cause.
“Number one, in terms of the . . . offenses that allege that death was caused, the claim is intervening cause, in that . . . it’s alleged by the defense that the victim was getting better. And then, there was some medical situation that developed. And you heard evidence about a heart attack, and so on. That’s . . . the claim with respect to intervening cause in that respect. . . .
“In the assault charges, where . . . the state is alleging that the defendant’s conduct resulted in either physical injury or serious physical injury to the various victims, the defense’s claim of intervening cause relates to the following: The circumstance where you heard evidence about Mr. Mission going into the intersection and perhaps contributing in some fashion to the cause of the injuries. That’s where intervening cause comes in. That’s where you consider it anyway during the course of your . . . deliberations. In those two respects.
“One, in terms of the proximate cause of death. And number two, in terms of the proximate cause of injuries.”

The defendant’s counsel did not object. Thereafter, the jury delivered a note to the court, asking: “What is the legal definition of the words proximate cause?” Following a brief colloquy with jurors and with counsel, the court gave the following supplemental instruction in answer to the note:

“All right. What I’ve done is prepared a supplemental instruction with respect to proximate cause. And you’ll get a copy of this. I’m also going to read it to you now in open court. . . .
“So, you’ve already been instructed in detail with respect to the element of proximate cause. This supplemental instruction is by no means intended to be a substitute for those detailed instructions but rather, [is] intended to assist you in understanding those instructions.
“Though this instruction applies [to all charges], I will discuss proximate cause in terms of the proximate cause of [the] death of Michael Mission.
“You’ve heard . . . the testimony and arguments of the state to the effect that the defendant’s conduct, in operating his vehicle at high speed and/or going through a red light, was the predominating cause or factor resulting in the death of Michael Mission.
“You’ve heard the testimony and arguments of the defense, to the effect that there were intervening causes constituting substantial factors with respect to the resulting death and injuries. Specifically, the conduct of Michael Mission in . . . the operation of his vehicle and/or Mr. Mission’s heart attack or heart failure, independent of his injuries.
“Thus, you were confronted with a number of factors alleged to be substantial, predominating causes or circumstances resulting in death. WTiere there is credible evidence of a number of factors concurring and contributing to the death, the question is whether you were satisfied beyond a reasonable doubt that the defendant’s conduct itself was a substantial factor and necessarily set in operation the factors that accomplished the death, even where the defendant’s conduct was not the last active cause or the act nearest to death or the immediate cause of death.
“Was the defendant’s conduct a substantial factor? And did the defendant’s conduct set in motion the forces or acts that combined to cause the victim’s death? If your answer is yes to both inquiries, beyond a reasonable doubt, then the . . . state has satisfied its burden. If you’re not satisfied beyond a reasonable doubt as to both, then the state has not satisfied its burden.
“Where, given the same evidence of a number of factors concurring and contributing to the death, you find that an unforeseeable act or force intervened to such an extent as to become the predominating cause of death, then the state has not satisfied its burden or proof with respect to this element, even though the defendant’s conduct was a contributing factor resulting in death.
“Was there an unforeseeable act or force intervening? And was it sufficient to become a predominating cause of death? If there was such an act or force or you have a reasonable doubt as to whether there was an act or force, then the state has not satisfied its burden.
“Bear in mind that the defendant has no burden to prove an intervening cause. The burden remains on the state to prove beyond a reasonable doubt that the defendant’s conduct was the proximate cause.”

Again there was no objection by defense counsel. The jury deliberated and reached its verdict.

“The primary purpose of a charge is to assist the jury in applying the law correctly to the facts that it has found proven and to call the attention of the members of the jury, unfamiliar with legal distinctions, to whatever is necessary and proper to guide them to a correct decision in the case. State v. Sanchez, 50 Conn. App. 145, 153-54, 718 A.2d 52, cert. denied, 247 Conn. 922, 722 A.2d 811 (1998).” State v. Abrahante, 56 Conn. App. 65, 81, 741 A.2d 976 (1999). Our review of the entire instruction leads us to conclude that the charge achieved that purpose. We conclude that the charge was legally correct, containing at least the following elements: To find the defendant guilty the jury had to find that (1) the defendant’s conduct contributed substantially, materially and in a direct manner to the injuries that resulted in the victim’s death, and (2) the defendant’s conduct was not superseded by an efficient, intervening cause that produced the injuries resulting in death. See State v. Munoz, 233 Conn. 106, 121, 659 A.2d 683 (1995). The instructions given allowed the jury to acquit the defendant if it found that Mission’s negligence in the operation of his car contributed to the accident that resulted in his death or, that Mission’s death resulted from a heart attack or by negligent treatment at the hospital.

We conclude that it was not reasonably possible that the jury was misled. No injustice to the defendant resulted by reason of the court’s instruction.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when . . . (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       The defendant also was convicted of assault in the first degree in violation of General Statutes § 53a-59 (a) (3), assault in the third degree in violation of General Statutes § 53a-61 (a) (3), as a lesser included offense of assault in the second degree, reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a) and, in a separate file, engaging police in pursuit in violation of General Statutes § 14-223 (b).
      Although the defendant listed on his appeal form the docket number of the judgment of conviction of engaging in pursuit, he raised no claim in this court as to that conviction, and we therefore dismiss that portion of his appeal.

       It was later determined that the vehicle being operated by the defendant was owned by his sister and had on it a stolen license plate.

       Also injured in the collisions were Mission’s wife, Janina Mission, who was a passenger in his car, and Denise Naumec, the driver of the second vehicle, along with her twelve year old daughter, Heidi Naumec, who was a passenger in that vehicle.

       Mission’s treating physician and the state’s chief medical examiner testified that Mission’s death was most likely caused by a pulmonary embolism; both agreed that Mission died as a result of complications from the injuries received in the accident with the defendant.

       “ [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 tire 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.) State v. Golding, supra, 213 Conn. 239-40.

       If anything, the court’s instructions were too favorable to the defendant in that the court did not specifically instruct the jury that a victim’s contributory negligence is not a defense to manslaughter. See State v. Alterio, 154 Conn. 23, 29-30, 220 A.2d 451 (1966). The court also did not instruct the jury that negligent medical care is not an intervening cause sufficient to break the chain of causation of death in a manslaughter case. See State v. Jacobs, 194 Conn. 119, 125-26, 479 A.2d 226 (1984), cert. denied, 469 U.S. 1190, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985).