author: FREEDMAN, J.

text:
    JAMES CYR v. DOMINO’S PIZZA ET AL.
    (AC 15695)
    Dupont, C. J., and Heiman and Freedman, Js.
    Argued January 17
    officially released May 20, 1997

      Mark Shapera, with whom, on the brief, was Steven H. St. Clair, for the appellant (Steven H. St. Clair).

      Holly Abery-Wetstone, with whom, on the brief, was Doris B. D Ambrosio, for the appellee (Lawrence Brick).
   Opinion

FREEDMAN, J.

The plaintiffs attorney Steven H. St. Clair appeals from the decision of the compensation review board of the workers’ compensation commission dismissing his appeal to that board. On appeal to this court, St. Clair claims that the review board improperly determined that his appeal was jurisdiction-ally defective because it was not timely filed pursuant to General Statutes § 31-301 (a). He further asserts that the workers’ compensation commissioner was without jurisdiction to enter the orders that he entered.

The following facts, as found by the commissioner and adopted by the review board, are relevant to this appeal. Attorney Lawrence S. Brick represented the plaintiff, James Cyr, in a workers’ compensation claim that arose out of an injury that Cyr sustained on February 26, 1990, in the course of his employment. Through Brick’s efforts, Cyr received an award of $23,000 and the commissioner approved a legal fee for Brick in the amount of 20 percent of the award, to which Cyr agreed. On January 7,1994, the insurer sent a settlement check to Brick. Brick turned the entire check over to Cyr. Although Cyr had agreed to pay the legal fees once the settlement check cleared, he did not do so. Instead, Cyr hired St. Clair and placed the legal fees in an escrow account at the advice of St. Clair. St. Clair contacted Brick and asked him to explain the basis of his fees. Brick did so and informed St. Clair that the fee had been approved by a commissioner. Despite receiving detailed and comprehensive explanations, Cyr did not pay Brick, and Brick requested an informal hearing to resolve the issue. The day before the hearing, St. Clair informed the commissioner and Brick that he would not attend due to scheduling conflicts. St. Clair did not respond to the commissioner’s telephone calls on the day of the hearing and did not answer a letter written by the commissioner. A properly noticed hearing was held two weeks later, and, despite the notice to Cyr and St. Clair, no one appeared on Cyr’s behalf.

By decision dated August 15,1994, the commissioner concluded that the failure to pay the legal fees without an explanation amounted to an inexcusable and unreasonable delay. He ordered Cyr to pay $4600 to Brick within ten days of the order, together with interest at the rate of 12 percent from the date that the original settlement check was received by Brick. He further found that the conduct of St. Clair was unconscionable and unbecoming an officer of the court and a member of the Connecticut bar. On the basis of that finding, the commissioner ordered St. Clair to pay Brick $2500 in attorney’s fees together with interest at the rate of 12 percent from the date of the order if payment was not made within ten days of the order. The commissioner further recommended that Brick file a complaint against St. Clair with the Connecticut statewide grievance committee.

On October 5, 1994, St. Clair appealed the commissioner’s August 15 decision to the review board, claiming that (1) the commissioner had no statutory authority to enter the orders as to him, (2) he was not provided adequate notice of the subject matter of the hearing as it related to his behavior, (3) he had no appearance in the case on behalf of Cyr, and (4) there was insufficient evidence to sustain the commissioner’s findings regarding communications between Brick and St. Clair as to the fees. Brick filed an objection to the appeal on the ground that it was untimely. The review board determined that the appeal was untimely and found that its ruling on the timeliness issue divested the board of jurisdiction over the remaining claims of error. The review board dismissed the appeal. This appeal followed.

“Section 31-301 (a) provides that ‘[a]t anytime within ten days after entry of an award by the commissioner . . . either party may appeal therefrom to the Compensation Review Board,’ and General Statutes § 31-300 provides that ‘[i]f no appeal from [the commissioner’s] decision is taken by either party within ten days thereafter, such award is final and may be enforced in the same manner as a judgment in the superior court.’ ” Freeman v. Hull Dye & Print, Inc., 39 Conn. App. 717, 720, 667 A.2d 76 (1995). “Once the board determines that an appeal is untimely it no longer has jurisdiction to address any remaining substantive claim.” Id.

In Chieppo v. Robert E. McMichael, Inc., 169 Conn. 646, 363 A.2d 1085 (1975), the defendants erroneously appealed to the Superior Court from the decision of the compensation commissioner rather than to the Court of Common Pleas. The Superior Court thereafter granted the defendants’ motion to transfer the appeal to the Court of Common Pleas. The Court of Common Pleas, however, found that it was without jurisdiction to consider the appeal because the defendants had not complied with the provisions of § 31-301. In upholding the dismissal of the defendants’ appeal, the Supreme Court stated that “[t]he order of the Superior Court transferring the appeal to the Court of Common Pleas was without effect. Under § 164 of the Practice Book, the Superior Court may order the transfer of a pending cause to the Court of Common Pleas. As the appeal was taken to the wrong court, the Superior Court was without jurisdiction and was powerless to make any transfer. . . . That the plaintiff may have filed a general appearance in the Superior Court is of no moment. The defect is in the jurisdiction over the subject matter, not in the jurisdiction over either the person or the process, and, as such, it is a matter of law and can be neither waived nor conferred by consent.” (Citations omitted.) Id., 650-51.

Here, we conclude that the review board properly dismissed St. Clair’s appeal because of lack of subject matter jurisdiction. The commissioner’s finding and award was dated August 15, 1994. St. Clair’s petition for review was filed on October 5, 1994, more than ten days from the date of the commissioner’s decision. Because the petition for review was untimely, the review board was without jurisdiction to address any remaining substantive claim. See Freeman v. Hull Dye & Print, Inc., supra, 39 Conn. App. 720; see also Chieppo v. Robert E. McMichael, Inc., supra, 169 Conn. 650-51.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-301b provides: “Any party aggrieved by the decision of the Compensation Review Board upon any question or questions of law arising in the proceedings may appeal the decision of the Compensation Review Board to the Appellate Court.”

       General Statutes § 31-301 (a) provides in pertinent part: “At any time within ten days after entry of an award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b, either party may appeal therefrom to the Compensation Review Board . ... ”

       Specifically, St. Clair claimed in his appeal that there was insufficient evidence to sustain the findings set forth in paragraphs ten and eleven of the commissioner’s decision. These paragraphs provide:
      “10. Attorney Brick through correspondence and phone conversations adequately explained his basis for fees, and that Commissioner Spain had already approved the fee.
      “11. Despite comprehensive and detailed explanations from February until May, 1994, no legal fees were paid nor was any explanation offered by Attorney St. Clair or Mr. Cyr regarding failure to pay approved legal fees.”

       “General Statutes (Rev. to 1973) § 31-301 formerly provided that parties appeal commissioner’s awards to the Court of Common Pleas. Public Acts 1979, No. 79-540, § 3, amended § 31-301 to provide that appeals be taken to the compensation review division and Public Acts 1991, No. 91-339, § 20, amended § 31-301 to its current state which provides that appeals be taken to the compensation review board.” Freeman v. Hull Dye & Print, Inc., supra, 39 Conn. App. 721 n.3.

       In an affidavit filed by St. Clair, he states that he received notice of the August 15, 1994 decision on September 29, 1994. As we stated in Conaci v. Hartford Hospital, 36 Conn. App. 298, 303, 650 A.2d 613 (1994), however, “the proper interpretation of the limilation period contained in General Statutes § 31-301 (a) is that the ten day period begins to run on the day on which the party wanting to appeal is sent meaningful notice of the commissioner’s decision.” In Conaci, we further “decline[d] to adopt the plaintiffs position that the appeal period commences when notice of the appealable decision is received” because “[s]uch a holding would create undue delay and difficulties in proving receipt by the party wanting to appeal.” Id., 303. Rather, we stated in Conaci that “[i]mplementation and application of our holding relies ... on the records of the commission as to when notice is sent.” Id., 303-304.
      The review board noted in its decision that, according to the record, notice of the decision was attempted by certified mail to 816 N. Pleasant Street, Amherst, Massachusetts 01002 on August 16 and August 20, 1994. The certified letter containing the decision was returned to the office of the first district of the workers’ compensation commission unclaimed on August 31, 1994. The review board further stated that “[t]he testimony of Brick and the commissioner’s own statements demonstrate that St. Clair was well aware of the informal and formal hearings in May, 1994, even though he did not attend. He was therefore responsible for making sure that the commission knew where to send notice of its decision. The address on the envelope was the same one that St. Clair had provided the commission several months earlier, and there is no evidence in the record to suggest that it was incorrect at the time of the finding and award.”
      The review board therefore held that meaningful notice of the finding and award was sent on August 15, 1994, and that the notice met the requirements of General Statutes § § 31-301 (a) and 31-321.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MARGARET ROGERS v. LAIDLAW TRANSIT, INC., ET AL.
    (AC 16129)
    Dupont, C. J., and Landau and Schaller, Js.
    Submitted on briefs March 24
    officially released May 20, 1997

      Thomas F. Keyes, Jr., filed a brief for the appellant (plaintiff).

      Jonathan F. Reik filed a brief for the appellees (defendants).
   Opinion

PER CURIAM.

The plaintiff appeals from the compensation review board’s reversal of a workers’ compensation commissioner’s finding and award in her favor.

The commissioner found that on September 16,1992, during the plaintiffs employment with Laidlaw Transit, Inc., she sustained a work related injuiy to her left knee. She was treated by Hubert Bradbum, who performed arthroscopic surgery on her knee in April, 1993. In February, 1994, Bradbum performed a knee replacement on the plaintiff.

The defendants deny that the knee replacement was causally related to the September 16, 1992 injury because the plaintiff had preexisting arthritis in both knees. Two other physicians, who examined the plaintiff at the request of the defendants, opined that the knee replacement surgery was not causally related to the September 16, 1992 injury. The commissioner concluded, however, relying on the opinion of Bradburn, that the surgery was causally connected to the September 16, 1992 injury.

The review board reversed the commissioner’s decision because it was unable to conclude that the medical evidence supported the factual findings.

The appropriate standard applicable to the review board when reviewing a decision of a commissioner is well established. “[T]he review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is obligated] to hear the appeal on the record and not retry the facts. . . . [T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . [T]he conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Citations omitted; internal quotation marks omitted.) Muldoon v. Homestead Insulation Co., 231 Conn. 469, 475-76, 650 A.2d 1240 (1994); Crochiere v. Board of Education, 227 Conn. 333, 347, 630 A.2d 1027 (1993). “The commissioner’s conclusions are accorded the same deference as that given to similar conclusions of a trial judge or jury on the issue of proximate cause.” (Internal quotation marks omitted.) Muldoon v. Homestead Insulation Co., supra, 477; Fair v. People’s Savings Bank, 207 Conn. 535, 541, 542 A.2d 1118 (1988).

The question of whether the knee replacement surgery was attributable to the plaintiffs work injury is a question of fact reserved for the commissioner. See Wright v. United Technologies Corp., 41 Conn. App. 231, 237, 674 A.2d 1387 (1996). The board’s hearing of an appeal from the commissioner is not a de novo hearing of the facts because the power and duty of determining the facts he with the commissioner. Muldoon v. Homestead Insulation Co., supra, 231 Conn. 475-76. We conclude that the board improperly substituted its finding of a fact for that of the commissioner.

The decision of the review board is reversed and the case is remanded with direction to affirm the decision of the commissioner.

       The defendants are Laidlaw Transit, Inc., and its workers’ compensation insurer, Crawford & Company.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. MICHAEL HILTON
    (AC 15845)
    Dupont, C. J., and Foti and Freedman, Js.
    Argued March 5
    officially released May 20, 1997

      Robert P. Pickering, with whom, on the brief, was F. Mac Buckley, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John M. Massameno, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a, possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), and possession of narcotics in violation of General Statutes § 21a-279. On appeal, the defendant asserts that the trial court improperly (1) refused to grant his motion to sever, (2) admitted an assault rifle into evidence, and (3) denied his motion to suppress a statement given during extradition. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On October 7, 1989, at approximately 4:20 a.m., Officer Christopher Hopkins of the Hartford police was dispatched to 241 Westland Street in Hartford, where he found the body of the victim, Thomas Byrd, near the curb. The cause of death was a .25 caliber bullet that had entered his chest, lungs and heart.

At the time of the shooting, the victim’s girlfriend, Stephanie Jones, was living with her children and her mother in one of two apartments on the third floor of 241 Westland Street, a three story building with two apartments on each floor. The victim visited the apartment every evening after work. Jones’ grandmother and her grandmother’s husband lived in an apartment on the second floor. Yolanda Moody and Sonia Moody lived on the first floor. The defendant was Yolanda’s boyfriend and was frequently present in the Moodys’ apartment.

Drug trafficking occurred in the Moodys’ apartment. People often knocked on Jones’ grandmother’s door at night looking for the Moody sisters and narcotics. Relations were tense between Jones and her relatives and the Moody sisters because Jones’ grandmother had informed the landlord that the Moodys were selling drugs out of their apartment.

In the early morning of October 7, 1989, Jones was present in her apartment with the victim, her mother and her friend Stephanie White. Between 2:30 and 3 a.m., an argument broke out between Jones and Sonia Moody after a male and a female, who were looking for drugs, knocked first on Jones’ door and then on her grandmother’s door. Soon thereafter, Jones, her mother and White went downstairs, where they quarreled and fought with the Moody sisters in the inner hallway on the first floor. Three men emerged from the Moodys’ apartment and watched the fight from the doorway. The defendant also observed the fight from the doorway of the Moodys’ apartment. After approximately five minutes, the defendant ran into the Moodys’ apartment and returned with a gun. He pointed the gun at the participants in the fight, waved it around, and then pointed it directly at the victim, who was holding Jones’ grandmother on the staircase. The Moody sisters ran back into their apartment. White, the three men and the victim ran outside. The defendant followed directly behind the victim. When the victim was between the inner hallway and an outer hallway, the defendant shot and killed him.

The police investigation of the homicide and search of 241 Westland Street resulted in the discovery of evidence concerning not only the homicide, but also drug trafficking. In the inner hallway of that building, there was apool of blood, blood drops, and aspent .25 caliber cartridge casing. In a hallway leading to the rear bedroom of the Moodys’ apartment, the police found a blood stained lactose bottle discarded in a waste basket. In Yolanda’s bedroom, the police discovered a set of car keys, a double beam scale, a roll of plastic sandwich bags, a note pad, a pager, a tote bag containing approximately one and one-half pounds of unpackaged raw rice, a photograph in the frame of a dresser mirror of the defendant posing with a rifle, an album of photographs of the defendant and Yolanda Moody and their love letters. In the front bedroom of 241 Westland Street, the police found papers and an address book belonging to Sonia Moody.

The police also searched two cars near the scene of the shooting, a Toyota Corolla and a Plymouth Grand Fury. The Plymouth was owned by Sonia Moody, and its keys were found by the police in the rear bedroom of 241 Westland Street. In the Plymouth’s trunk the police found a Heckler and Koch MP5 assault rifle and two loaded clips of ammunition. The Toyota was owned by Yolanda Moody, but was driven by the defendant more frequently than by Yolanda. Inside the Toyota’s trunk, the police found a blue cosmetic bag holding $24,057 in thousand dollar bundles, a triple beam scale, and a box holding a spoon and a plastic bag that was embedded in rice and contained approximately 44 grams or 1.36 ounces of a white powder that was 84 percent cocaine in salt form.

Following the homicide, the state attempted but failed to locate the defendant. An arrest warrant was issued for him in February, 1990. The police learned in the summer of 1992 that he was incarcerated in a county correctional center in New Jersey. He was brought by automobile back to Connecticut, and, during this trip, he related to the police that he had waited at the scene of the shooting until the arrival of the police but then departed by bus for New York City because there was an outstanding warrant for his arrest in Washington, D.C. The defendant also said that neither the Toyota nor the Plymouth or their contents belonged to him and that the rifle in the Plymouth had been left there by someone he did not know. He commented that he had used the rifle in the Plymouth to pose for the picture that the police found in the rear bedroom of the Moodys’ apartment. He also stated that he had been in the hallway of 241 Westland Street during a fight between the Moody sisters and other individuals and that he had heard a shot, but he did not know who had fired it. The defendant specifically claimed that he did not shoot the victim.

I

The defendant first asserts that the trial court improperly denied his motion to sever the murder and narcotics charges. He claims that he was substantially prejudiced and denied his constitutional right to a fair trial.

On December 31, 1992, the defendant filed a motion for severance of offenses, which the trial court, Freed, J., denied on February 22, 1995, following the renewal of this motion. The court allowed joinder of the murder and drug charges primarily because the state had proffered some evidence that the motive for the killing was connected with the defendant’s drug sale. The court also determined that the crimes were not particularly shocking or brutal, and that the trial was not expected to be lengthy or complex. The court concluded that the joinder of the drug charge to the murder charge would not substantially prejudice the defendant because the drug charge was a less severe offense and would not inflame the juiy.

The defendant argues that the trial court abused its discretion in allowing the joinder because evidence of drug dealing adduced at trial is not relevant to the charge of murder. He claims that the state introduced the drug charges not to prove an element of the crime of murder, but rather, to bolster its murder case with collateral evidence.

“The test for whether cases should be consolidated for tiial is multifaceted. The factors to be considered are (1) whether the charges involve discrete, easily distinguished factual scenarios, (2) how long and complex the trial was, and (3) whether one or more of the counts alleges brutal or shocking conduct by the accused. State v. Chance, 236 Conn. 31, 42, 671 A.2d 323 (1996). . . .” (Citations omitted.) State v. Stevenson, 43 Conn. App. 680, 686, 686 A.2d 500 (1996). “[W]e . . . note that joinder of cases is favored . . . and that a trial court is authorized by statute and rule to order a defendant to be tried in one trial on charges arising from separate cases. General Statutes § 54-57; Practice Book § 829.” (Citation omitted.) Id., 686-87. “The decision of whether to sever cases is within the discretion of the trial court. . . and will be overturned only if its discretion has been manifestly abused.” (Citations omitted.) Id., 687. “The defendant bears a heavy burden of showing that the denial of severance resulted in substantial injustice and that any resulting prejudice was beyond the curative power of the court’s instructions.” (Internal quotation marks omitted.) Id.

In disputing the first factor of the standard set out in State v. Chance, supra, 236 Conn. 31, the defendant concedes that the facts underlying the murder and the drug charges are distinguishable, but he claims that “this distinction has been blurred by the state because it consistently asserted that these offenses were inextricably webbed together.” We conclude that the first Chance factor is met because the factual scenarios are clearly distinct, discrete and easily distinguishable. Our review of the record discloses that the evidence was presented in an orderly manner and was not confusing. The jury was capable of considering the evidence on the offense of murder separately and distinctly from the evidence concerning the drug charges. There was no danger that the jury used evidence of the one crime to convict the defendant of the other crime. See State v. Crosby, 36 Conn. App. 805, 809, 654 A.2d 371, cert. denied, 232 Conn. 921, 656 A.2d 669 (1995).

In considering the second factor, we must determine whether the duration of the trial and the complexity of the evidence was such as to make it likely that the jury weighed the evidence against the defendant cumulatively. The trial took sixteen days, with twenty-five witnesses presented and ninety-nine exhibits introduced. The defendant argues “that a strong inference can be drawn that the jury was confused and that the trial was so long and complex that it enhanced the likelihood that the jury would weigh the evidence cumulatively.” We do not agree.

There existed a clear line separating the narcotics cases from the case involving the allegation of murder in that witnesses and exhibits in each case fell into readily and easily distinguishable factual scenarios. The case against the defendant on the charge of murder was based substantially on the eyewitness testimony of the bystanders, whereas the two narcotics charges were presented by way of evidence from police officers’ testimony concerning the seizures from the Moodys’ apartment and the trunks of two automobiles. The bulk of the exhibits consisted of photographs of either the murder site, the hallways and sidewalk in front of 241 Westland Street, or the sites dealing with the drug charges, the garage with the two cars, the contents of the car trunks, Moody’s apartment and its contents. We cannot conclude that the jury might easily have been confused by these photographs because the exhibits and evidence clearly fell into two easily identifiable and separate groups according to the charge and the distinctive factual scenario. We are also not persuaded that, under the circumstances of this case, a sixteen day trial was of such a duration as to itself enhance the likelihood of a cumulative weighing of the evidence.

The last factor of Chance concerns the brutality or shocking nature of the crimes. As we have previously stated, “any murder involves violent and upsetting circumstances”; State v. Stevenson, supra, 43 Conn. App. 690; but a murder is not necessarily so brutal and shocking that a jury could not treat, with proper instruction, that crime and any other crime separately. See State v. Herring, 210 Conn. 78, 97, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d. 579 (1989). The test is whether the facts of one crime are so brutal or shocking as to amount to prejudice if tried together with another crime. State v. Jennings, 216 Conn. 647, 659, 583 A.2d 915 (1990). Our review of the record discloses that the charges are not so brutal or shocking as to preclude joinder. We do not discern a high risk of one offense being tainted by anything unusually shocking or brutal in the nature of the other, “especially if the evidence as to each would have been cross admissible had the cases been tried separately.” State v. Stevenson, supra, 43 Conn. App. 691. There was some evidence presented as to the motive for the murder, which the jury was free to accept in part, in total, or not at all. “Where evidence of one incident can be admitted at the trial of [another incident], separate trials would provide the defendant no significant benefit. It is clear that, under such circumstances, the defendant would not ordinarily be substantially prejudiced by joinder of the offenses for a single trial.” State v. Pollitt, 205 Conn. 61, 68, 530 A.2d 155 (1987).

The trial court amply and properly instructed the jury, both at the beginning of trial and during final instructions, that each count alleged a separate crime and that the jury was required to consider each charge separately. The jury, therefore, had specific direction to keep the charges separate. We conclude that the trial court did not abuse its discretion in denying the defendant’s motion for severance.

II

The defendant next contends that the trial court improperly admitted as evidence the assault rifle seized from the trunk of the Plymouth owned by Sonia Moody. He asserts that the introduction of that evidence was improper because it had no relevance whatsoever to the specific elements of the crimes charged. The defendant also argues that its prejudicial impact far outweighed its probative value in that its purpose was to influence the jurors and convince them that the defendant was a bad person.

The trial court, in admitting the evidence, concluded that the weapon was sufficiently linked to the defendant by the photograph in Yolanda Moody’s bedroom of him posing with a weapon similar in appearance, and by the defendant’s statement to Detective Stephen Kumnick that he had posed for that picture with the rifle that the police found in the Plymouth. In support of his objection, the defendant specifically stated at trial that the weapon was not sufficiently connected to him in that the Plymouth was never linked to him, and that the assault rifle was not probative of the state’s theory of motive, i.e., the shooting was a result of a drug operation conducted by the defendant. Following the overruling of his objection to the admission of the weapon into evidence, the defendant, without waiving his claim of prejudice, objected to the use of the photograph of the weapon after an initial display to the jury, and prevailed. The weapon itself, however, was used throughout the trial instead of the photograph.

The determination of relevance is left to the broad discretion of the trial court. State v. Sauris, 227 Conn. 389, 407, 631 A.2d 238 (1993). Evidence is relevant if it may reasonably be construed to establish a fact at issue or to corroborate other direct evidence in the case. State v. Greene, 209 Conn. 458, 477, 551 A.2d 1231 (1988). We defer to a trial court’s finding unless there has been a clear abuse of discretion. State v. Sauris, supra, 407. We give every reasonable presumption in favor of the court’s ruling; reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. State v. Coleman, 35 Conn. App. 279, 285, 646 A.2d 213, cert. denied, 231 Conn. 928, 648 A.2d 879 (1994). Our Supreme Court has held that a gun may be relevant to the issue of intent to sell narcotics. State v. Delossantos, 211 Conn. 258, 280-81, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989); State v. Avila, 166 Conn. 569, 580, 353 A.2d 776 (1974).

Normally, evidence of other crimes or bad acts is treated as inadmissable character evidence, unless such evidence is offered to prove the existence of a larger plan, scheme or conspiracy of which the crime charged is a part, or such evidence tends to establish a fact in issue or to corroborate other evidence in the case. State v. Mozell, 36 Conn. App. 672, 675, 652 A.2d 1060 (1995).

Our Supreme Court has repeatedly noted that there is a well established correlation between drug dealing and firearms. State v. Cooper, 227 Conn. 417, 426 n.5, 630 A.2d 1043 (1993). Weapons are tools of the narcotics trade, used to protect the dealer’s goods. See State v. Delossantos, supra, 211 Conn. 281. We have indicated that evidence of firearms at a defendant’s residence is relevant to the issue of drug distribution. State v. Lee, 30 Conn. App. 470, 489, 620 A.2d 1303 (1993), aff'd, 229 Conn. 60, 640 A.2d 553 (1994).

It was the state’s theory that the defendant was a drug dealer, that drug dealers often employ assault rifles to secure their operations through intimidation and fear, that the defendant possessed this weapon, or had ready access to it, and that drugs supplied the motive for the killing. The defendant’s link to the assault rifle was established through the photograph, the defendant’s own statements, his close relationship with Yolanda Moody, his frequent presence in her apartment and the presence in her bedroom of the keys to the trunk of the Plymouth where the rifle was stored. We distinguish the present matter from our decision in State v. Mozell, supra, 36 Conn. App. 672, where we concluded that no evidence was presented to show the defendant to be in possession of the gun. Here, the state presented evidence tending to show each step of its theory. Whether that evidence was credible and what weight it should be given, if accepted, is a function of the jury. “The jury’s sole province as the trier of fact is to draw all reasonable and logical inferences from the facts as it finds them to exist. . . . The jury also has the sole and absolute responsibility to weigh conflicting evidence and to determine the credibility of witnesses.” (Citations omitted.) State v. Rivera, 32 Conn. App. 193, 201, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993).

The defendant argues that even if the weapon is relevant, the introduction of that type of weapon in itself caused prejudice that outweighed its probative value. “Resolution of these determinations is left to the sound discretion of the trial court judge.” State v. Pickering, 38 Conn. App. 536, 545-46, 662 A.2d 804, cert. denied, 235 Conn. 907, 665 A.2d 905 (1995). The trial court, in balancing the prejudicial effect of this evidence, concluded that it would be very unlikely for the jury to infer, in any manner, that because the defendant had ready access to this assault rifle, that he was likely to have fired a .25 calibre handgun, the gun involved in the murder. The trial court did not view this evidence as being so inflammatory as to arouse unduly the jurors’ hostility or enmity towards the defendant. The trial court cautioned the jurors, during final instructions, that they could not use evidence as presented to infer that the defendant was a bad person.

We conclude, under the facts and circumstances of this case, that the trial court did not abuse its discretion in admitting the assault rifle into evidence.

Ill

The defendant also claims that the trial court improperly denied his motion to suppress as evidence the statement he made to Kumnick while being extradited from New Jersey. He alleges that he was denied his right to counsel pursuant to the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution.

The facts relevant to this claim are as follows. At the hearing on the motion, Kumnick testified that he had been contacted by Attorney Steven Meo on September 22, 1992, and that Meo had asked him not to question the defendant during the car trip to Connecticut. He had asked Meo if he was representing the defendant, and Meo had replied that he was not, but that he might file an appearance if the defendant was arrested. Kumnick responded that he would advise the defendant of his rights, and it would be the defendant’s decision whether to be questioned. Kumnick had no further contact with Meo before traveling to New Jersey on September 26, 1992.

At the New Jersey prison, the defendant was presented with a warrant for his arrest, told he was going back to Connecticut, shackled and belly chained, and placed in the back of a police automobile. He was read his rights from a standard police card, including his right to remain silent and his right to an attorney. During the three and one-half hour trip, Kumnick asked the defendant his name, when he first entered the United States and his birth date. The defendant responded that the name he used was Jerome Thorpe and his birth date was August 11, 1964. The defendant asked why he was charged with murder, given that he was being attacked in a hallway by three other men. Kumnick responded by asking whether he was going to claim self-defense. The defendant did not respond. The defendant went on to inform Kumnick that he had remained at the scene of the shooting until the arrival of the police and had left due to an outstanding warrant for his arrest in the District of Columbia. When the defendant asked about the narcotics charges, Kumnick informed him that cocaine had been found in the Toyota and an assault rifle in another car. The defendant replied that the Toyota did not belong to him and that the rifle had been left by an unknown person. Kumnick informed the defendant that the police had found, in Yolanda Moody’s bedroom, a photograph of him posing with a rifle. The defendant admitted to posing with the rifle that had been found in a car trunk. Upon reaching the Hartford police station, Kumnick asked the defendant if he had an attorney and if he wanted to be interviewed, and the defendant replied that he did not know. The defendant told Kumnick that there was a fight involving a dozen people, that an individual whom he declined to name pulled Yolanda Moody from the crowd, and that he heard a shot, but did not know who did the shooting. When asked by Kumnick whether he wanted to reduce his statement to writing, whether he had an attorney and whether he wanted Meo to represent him, the defendant repeated that he did not know. When asked again if he wanted to speak with Meo, the defendant said, “Yes.”

The trial court found that the defendant was interrogated during the trip to Connecticut, but that the defendant had been advised of his rights and he had knowingly and intelligently waived his rights. The court also concluded that Meo was not empowered to invoke the bar against self-incrimination on behalf of the defendant.

The state argues that the defendant failed distinctly to raise in the trial court the constitutional basis that he raises on appeal. The state claims that because he did not properly preserve his claim at trial, he can prevail on appeal only if he can satisfy the guidelines as set forth in State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We do not agree that the claim is not properly preserved.

We are not bound to consider claims of law not properly raised at trial. State v. Carter, 34 Conn. App. 58, 73, 640 A.2d 610, (1994), rev’d on other grounds, 232 Conn. 537, 656 A.2d 657 (1995). The defendant’s motion to suppress presented the trial court with only his waiver of fifth amendment rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). It is apparent from the record, however, that the defendant orally incorporated a “right to counsel” claim as part of his claim and that the trial court ruled on this additional claim without any apparent objection by the state.

We note initially that the defendant challenges the trial court’s finding that he validly waived his Miranda, rights. He does not claim that he was denied reasonable access to an attorney; State v. Stoddard, 206 Conn. 157, 167, 537 A.2d 446 (1988); or denied such access at “a meaningful time and in a meaningful manner.” Washington v. Meachum, 238 Conn. 692, 740, 680 A.2d 262 (1996) (Berdon, J., dissenting). The defendant claims that he was deprived of “knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning those rights,” specifically because he had not been apprised of Meo’s admonitions to the police. He claims that the police used an “egregious psychological coercion” to obtain an ineffective waiver of his sixth amendment right to counsel.

The defendant alone may invoke his right to counsel. State v. Stoddard, supra, 206 Conn. 167. Our Supreme Court, however, has stated that “a suspect must be informed promptly of timely efforts by counsel to render pertinent legal assistance. Armed with that information, the suspect must be permitted to choose whether he wishes to speak with counsel ... or whether he will [forgo] assistance of counsel .... The police, because they are responsible for the suspect’s isolation, have a duty to act reasonably, diligently and promptly to provide counsel with accurate information and to apprise the suspect of the efforts by counsel.” Id., 166-67.

The defendant was incarcerated in New Jersey prior to his return to Connecticut. Four days prior to that return, Meo requested of the police that they not question the defendant. Meo’s request was, in effect, refused. Meo was told that the defendant would be advised of his rights, and it would be the defendant’s decision whether to be questioned. Meo did not contact the defendant in New Jersey, nor did he attempt to contact the defendant’s attorney in New Jersey. Meo was on notice that it was necessary for him to contact the defendant himself if he wanted to advise him, and he had four days to do so. He was not effectively prevented from contacting the defendant on his own and could not expect that the police would be obliged to act on his behalf. They had no constitutional obligation, under these circumstances, to advise the defendant further than those warnings required under Miranda, nor were they required not to interrogate him following that advisement. While police may have a duty to apprise a suspect of the efforts by counsel, even absent the attorney-client relationship, to render pertinent legal assistance; State v. Stoddard, 206 Conn. 167-72; the circumstances present here do not create the same duty required in Stoddard.

We conclude that the defendant’s federal and state constitutional rights to counsel, essential to his ability to understand the nature of his rights and the consequences of abandoning those rights, were not violated and that under the totality of the circumstances, as the trial court found, he knowingly and intelligently waived his Miranda rights.

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.

       While the original information charged a violation of General Statutes § 53a-54a, the state’s substitute information and bill of particulars charged a violation of General Statutes § 53a-54b, the statutory provision for capitol felony. The judgment file also shows a conviction under § 53a-54b. The state’s brief cites § 53a-54b, but the defendant’s brief cites § 53a-54a. The case, however, was tried pursuant to § 53a-54a and the trial court instructed pursuant to § 53a-54a. We conclude that this inconsistency is a result of a scrivener’s error.
      General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, 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, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, 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

       General Statutes § 21a-279 (a) provides in relevant part: “Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned . . .

       Expert testimony established that many of the items found during the investigation are related to drug trafficking. Lactose is used to dilute the cocaine for purposes of sale. The plastic sandwich bags seized from the rear bedroom are typical packaging for the sale of cocaine. Beepers are commonly used in drug trafficking. The writing on the note pad seized from the rear bedroom constituted a record of narcotics sales to street level dealers. Double and triple beam scales are typically used by high level dealers handling larger amounts of narcotics. Raw rice is used to conceal and transport cocaine in order to keep it fresh. Guns are commonly used in the drug trade. Narcotics were found in the trunk of the Toyota. If narcotics sales are not underway, the practice of the dealer is to keep drugs in a safe but accessible location, such as a vehicle, basement, or an apartment not connected to the dealer. The money seized from the trunk would pay for a kilogram of cocaine. An assault rifle with considerable fire power, such as the Heckler and Koch MP5, is employed by high level dealers in the narcotics trade.

       It was agreed by the parties and ordered by the court that this motion, together with a motion to suppress also filed in December, 1992, would be heard at the time of trial or just prior to jury selection.

       The court conditioned its rulings on the state’s ability, at trial, to support with admissible evidence its theory that the defendant’s involvement in dealing drugs motivated the murder. The state proffered a witness, Michael Rondeau, who was incarcerated with the defendant at the community correctional center at Hartford, to testify that the defendant had killed the victim in a dispute arising out of a drug deal. The defendant did not object to Rondeau’s testimony, germane to the defendant’s motive for the killing. Because there was no objection to this evidence, we need not determine whether it was relevant and material as to the issue of motive.

       General Statutes § 54-57 provides: “Joinder of offenses of the same character. Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.'’

       Practice Book § 829 provides: “The judicial authority may, upon its own motion or the motion of any party, order that two or more informations, whether against the same defendant or different defendants, be tried together.”

       Compare State v. Boscarino, 204 Conn. 714, 529 A.2d 1260 (1987) (concluding that joinder of charges relating to four factually similar incidents improper because trial lasted ten weeks and fifty-five witnesses testified).

       See footnote 7.

       The defendant’s motion to suppress these statements was denied except as to his silence in response to questions related to self-defense. The trial court did not issue a written decision as to its ruling. The defendant did not file a notice with this court pursuant to Practice Book § 4059 (b).

       The court charged: “You may not consider evidence of misconduct by the defendant other than that charged to conclude that the defendant is a bad person and, therefore, more likely to commit the crimes charged. This is not permissible and you may not do that.”

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to . . . have the assistance of counsel for his defense.”
      Article first, § 8, of the Connecticut constitution provides in relevant part: “In all criminal prosecutions, the accused shall have the right to be heard by himself and by counsel . . . .”

       The defendant’s motion to suppress set forth the following allegations:
      “(1) The defendant, Michael Hilton, was taken into custody by Detectives Kumnick and [Greg] Merrick on [Sept. 26, 1992], for the purpose of transporting the defendant from the Monmouth County Correctional Institution in Freehold, New Jersey to the Hartford Police Department.
      “(2) While transporting the defendant to Hartford, Detectives Kumnick and Merrick advised defendant of his constitutional rights and then began to make statements to defendant which were reasonably likely to elicit an incriminating response.
      “(3) The defendant did not waive his Miranda rights at any time during the interrogation by the detectives, yet the interrogation continued throughout the ride to Hartford.
      “(4) Any statements made by the defendant to Detectives Kumnick and Merrick during the trip to the Hartford Police Department were the result of an illegal custodial interrogation, and should be suppressed.”

       The trial court found that the defendant was unaware of any role on his behalf by Meo. Meo acknowledged that no attorney-client relationship existed between him and the defendant during the transfer from New Jersey.


author: LANDAU, J.

text:
    DENNIS REDDEN v. MICHAEL W. KOZLOWSKI, COMMISSIONER OF MOTOR VEHICLES
    (AC 16124)
    Landau, Schaller and Spear, Js.
    Submitted on briefs March 6
    officially released May 20, 1997

      Richard Blumenthal, attorney general, and Robert T. Morrin, assistant attorney general, filed a brief for the appellant (defendant).

      Richard S. Crammer filed a brief for the appellee (plaintiff).
   Opinion

LANDAU, J.

The defendant, Michael W. Kozlowski, commissioner of motor vehicles (commissioner), appeals from the judgment of the trial court sustaining the plaintiffs appeal from the commissioner’s decision to suspend the plaintiffs operator’s license for six months pursuant to General Statutes § 14-227b. The sole issue on appeal is whether the trial court improperly concluded that there was insufficient evidence to support the hearing officer’s determination that the plaintiff had been operating the motor vehicle at the time of his arrest in the town of East Hampton in violation of General Statutes § 14-227a. We reverse the judgment of the trial court.

The following facts are pertinent to our resolution of this appeal. On October 31, 1995, at approximately 12:50 a.m., the plaintiff was observed by East Hampton police officers in the driver’s seat of his automobile with the engine running in a parking lot with a capacity of more than ten vehicles. After failing numerous field sobriety tests, the plaintiff was arrested and charged with operating a motor vehicle while intoxicated in violation of § 14-227a. At the police station, the plaintiff refused to submit to a chemical alcohol test. Following a hearing, held pursuant to § 14-227b, the commissioner found that (1) the police officer had probable cause to arrest the plaintiff for a violation specified in subsection (b) of § 14-227a, (2) the plaintiff was placed under arrest, (3) the plaintiff refused to submit to a chemical alcohol test or analysis, and (4) the plaintiff was operating the motor vehicle. On the basis of these findings, the commissioner suspended the plaintiffs operator’s license for six months.

The plaintiff appealed the suspension to the trial court, pursuant to General Statutes § 4-183, claiming that (1) there was insufficient evidence to support the hearing officer’s finding that the plaintiff was operating the vehicle, and (2) the parking lot in which he was parked at the time of his arrest was not a “parking area” within the scope of § 14-227a (a). The trial court sustained the plaintiffs appeal, finding that the evidence was insufficient to support the hearing officer’s determination that the plaintiff had operated the motor vehicle. This appeal followed.

The defendant claims on appeal that the trial court improperly concluded that there was insufficient evidence in the record to determine that the plaintiff was operating the vehicle. We agree.

“Proof of operation is a factual determination. See, e.g., State v. Hanusiak, 4 Conn. Cir. Ct. 34, 46, 225 A.2d 208 (1966) (§ 14-227b contemplates that the trier of facts shall make the finding of operation). [A]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts. Lieberman v. State Board of Labor Relations, 216 Conn. 253, 262, 579 A.2d 505 (1990). The factual findings of the commissioner of motor vehicles must be affirmed by the trial court unless they are clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. General Statutes § 4-183 (j) (5).” (Internal quotation marks omitted.) O'Rourke v. Commissioner of Motor Vehicles, 33 Conn. App. 501, 505, 636 A.2d 409, cert. denied, 229 Conn. 909, 642 A.2d 1205 (1994).

“We note at the outset that [j]udicial review of the commissioner’s action is governed by the Uniform Administrative Procedure Act (General Statutes . . . §§ 4-166 through 4-189), and the scope of that review is very restricted. . . . Buckley v. Muzio, 200 Conn. 1, 3, 509 A.2d 489 (1986), quoting Lawrence v. Kozlowski, 171 Conn. 705, 707-708, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977). In cases involving administrative appeals it is not the function of this court, nor was it the function of the trial court, to retry the case or to substitute its judgment for that of the administrative agency. Madow v. Muzio, 176 Conn. 374, 376, 407 A.2d 997 (1978); C & H Enterprises, Inc. v. Commissioner of Motor Vehicles, 176 Conn. 11, 12, 404 A.2d 864 (1978); DiBenedetto v. Commissioner of Motor Vehicles, 168 Conn. 587, 589, 362 A.2d 840 (1975); see General Statutes § 4-183 G)-” (Internal quotation marks omitted.) O’Rourke v. Commissioner of Motor Vehicles, supra, 33 Conn. App. 506.

Our review requires us to. determine whether there is substantial evidence in the administrative record to support the commissioner’s findings of basic fact and whether the conclusion drawn from those facts is reasonable. Schallenkamp v. DelPonte, 29 Conn. App. 576, 580-81, 616 A.2d 1157 (1992), aff'd, 229 Conn. 31, 639 A.2d 1018 (1993); see also Connecticut Light & Power Co. v. Dept. of Public Utility Control, 216 Conn. 627, 639, 583 A.2d 906 (1990). “Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Internal quotation marks omitted.) O’Rourke v. Commissioner of Motor Vehicles, supra, 33 Conn. App. 507. If the commissioner’s determination to suspend the plaintiffs license is supported by substantial evidence in the record, that determination must be sustained. Id.

The plaintiff claims that there was not sufficient, evidence in the record for the commissioner to determine that he was operating the vehicle. In support of his claim, the plaintiff attempts to distinguish the facts of this case from those in O’Rourke v. Commissioner of Motor Vehicles, supra, 33 Conn. App. 501. In ORourke, we affirmed the judgment of the trial court dismissing the plaintiffs appeal from the commissioner’s decision to suspend his operator’s license for a period of one year. The plaintiff in O’Rourke claimed, inter alia, that there was insufficient evidence presented to support the hearing officer’s finding that he had been operating his motor vehicle when he was arrested. The plaintiff in this case focuses on facts found significant by the O’Rourke court, i.e., that the plaintiff in that case was sitting in the operator’s seat with his seat belt fastened, and that the vehicle was involved in an accident and the vehicle was in need of a tow. The plaintiff argues that no such evidence exists in this case.

Here, the East Hampton police found the plaintiff in a parking lot, at approximately 12:40 a.m., in the operator’s seat of his motor vehicle with the engine running and the headlights on. The commissioner could reasonably have inferred from these facts that the plaintiff had been operating the vehicle.

We conclude that the record contains substantial evidence supporting the commissioner’s finding that the plaintiff had operated the vehicle. Thus, the trial court improperly sustained the plaintiffs appeal in view of the reliable, probative and substantial evidence on the whole record.

The plaintiff argues, in the alternative, that even if we conclude, as we have, that the commissioner’s decision was supported by substantial evidence, we can, nevertheless, affirm the trial court’s decision on an alternate ground. See Practice Book § 4013 (a) (l). The plaintiff asserts that the parking lot in which he was parked at the time of his arrest was not a parking area within the scope of § 14-227a (a) and as defined in § 14-212 (6). The commissioner found that the plaintiff was parked in a parking lot with a capacity of more than ten vehicles within the meaning of § 14-227a (a). The plaintiff raised this issue on appeal to the trial court, but the court, having concluded that insufficient evidence existed to support the hearing officer’s finding that the plaintiff had operated the vehicle, did not review this claim. Thus, this case must be remanded to the trial court to consider the merits of the plaintiffs claim.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       General Statutes § 14-227a provides in pertinent part: “(a) Operation while under the influence. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight. . . .”

       See footnote 1.

       Practice Book § 4013 (a) (1) as it applied to the filing of the appellant’s preliminary statement of the issues provides in pertinent part: “If any appellee wishes to (A) present for review alternate grounds upon which the judgment may be affirmed . . . that appellee shall file a preliminary statement of issues within fourteen days from the filing of the appellant’s preliminary statement of the issues.


author: DUPONT, C. J.

text:
    CYNTHIA FERRARO v. VINCENZO FERRARO
    (AC 16328)
    Dupont, C. X, Landau, and Schaller, Js.
    Submitted on briefs March 24
    officially released May 20, 1997

      Carl J. Amento filed a brief for the appellant (defendant).

      David P. Ball filed a brief for the appellee (plaintiff).
   Opinion

DUPONT, C. J.

This appeal arises out of a dissolution action and primarily concerns the application of child support guidelines. The plaintiff and the defendant were married in 1988. There is one child from the marriage. The marriage was dissolved by the trial court, Stodolink, J., on the ground of irretrievable breakdown on April 25, 1996.

The defendant appeals from the judgment in so far as it relates to certain child support and visitation issues. He also appeals from the denial of a motion for reargument by the trial court, Stodolink, J., on August 12, 1996, and the denial, in part, of a motion to modify by the trial court, Mihalakos, J., also on August 12,1996. He claims that the trial court improperly (1) applied the deviation criteria of the Connecticut child support guidelines in determining the amount of child support he is ordered to pay, (2) ordered distribution of a savings bank account containing $10,000 from the defendant to the plaintiff, (3) gave primary custody of the child to the plaintiff and did not order the defendant’s visitation time to begin on Wednesdays, (4) ordered the defendant to pay his own attorney’s fees and one half of the child’s attorney’s fees, and (5) ordered distribution of certain personal property to the plaintiff. We discuss only the plaintiffs first claim concerning the child support guidelines, and affirm the judgments of April 25 and August 12, 1996.

The relevant facts are those that follow. In the April 25,1996judgment, the trial court, Stodolink, J., awarded joint custody of the child to both parents, with the plaintiff having primary custody and with the defendant having visitation rights. The court ordered an alternating visitation schedule with a “long week” where the plaintiff would leave the child with the defendant on Thursday mornings and the defendant would return her to the plaintiff on Sunday evenings, and a “short week,” where the plaintiff would leave the child on Thursday mornings and pick her up again on Friday evenings. The trial court ordered the defendant to pay $94.05 per week as child support. This amount was based on a “shared custody arrangement” deviation from the child support guidelines.

On May 14, 1996, the defendant filed a motion for reargument. In that motion, he claimed that several of the trial court’s orders in the April 25, 1996 memorandum of decision were improper or incomplete. Specifically, the defendant sought reargument on the child support order of $94.05 per week, the distribution of the savings bank account, a tax refund and personal property to the plaintiff, the requirement that only the defendant must seek permission to take the child out of the country, attorney’s fees, and the court’s failure to rule on a motion for contempt and the distribution of the child’s dependency allowance for tax purposes. Judge Stodolink denied the motion on August 12, 1996.

The defendant also filed a motion on June 13, 1996, to modify the child support order as set forth in the April 25, 1996 judgment. This motion concerned a claimed improper deviation from the child support guidelines. The trial court, Mihalakos, J., on August 12, 1996, reduced child support to $80 per week. At the time of the healing on the motion to modify, the plaintiff had a higher income ($505.52 instead of $488.31) and the defendant a lower income ($479.34 instead of $594.99) than at the time of dissolution. The defendant argues that, because the defendant’s net weekly income, after making his child support payment, is $399.94, whereas the plaintiffs net weekly income, after receiving the child support payment of $80, is $585.52, and the amount of time the child spends with each parent is nearly equal, the court abused its discretion in ordering a child support payment of $80. The defendant also claims that the reduction due to the shared custody arrangement is inequitable because on an average basis the child is with him only one-half day less per week than with the plaintiff.

The judge who rendered the dissolution orders and the judge who rendered the modification order both found that application of the amount of support as determined by the guidelines would be inequitable because of the shared custody arrangement. It is the amount of the deviation that is at issue in this case, not whether a deviation from the guidelines was necessary. See Favrow v. Vargas, 231 Conn. 1, 29, 647 A.2d 731 (1994).

The judgment of child support rendered at the time of the dissolution need not be disturbed. It was rendered as part of an entire financial settlement, the guidelines were considered, the defendant had more disposable income than the plaintiff, and the plaintiff had the care of their child for a greater period of time during any two week period. We conclude that there was no abuse of discretion.

We also conclude that the subsequent modification of the child support award was not an abuse of discretion. The purpose of a child support order is to provide for the care of the child, rather than to equalize the net income of the parents. Battersby v. Battersby, 218 Conn. 467, 473, 590 A.2d 427 (1991). Although the income of each parent is one factor in the determination of the proper amount of child support, the difference in the amount of the plaintiffs and the defendant’s incomes at the time of the modification hearing is not significant enough to support a conclusion that the court abused its discretion in failing to modify child support below $80 per week. The court took into account all of the factors involved in child support, including the shared custody arrangements of the parties, deviated from the child support guidelines, and determined an amount to be paid by the defendant. The exercise of discretion in cases like this involves more than counting the number of meals a child eats in the home of each parent, and more than computation of the hours spent under the roof of each parent.

The judgments are affirmed.

In this opinion the other judges concurred.

       The other claims of the defendant are all matters within the discretion of the trial court. We see no reason to disturb any of those orders because we conclude there was no abuse of discretion.

       The June 13, 1996 motion to modify was the last of several filed by the parties during the course of the action. On February 7, 1995, the plaintiff moved to modify the visitation schedule pending the dissolution. The motion was denied by the trial court, Dennis, J., on March 23, 1995. The plaintiff filed another motion to modify visitation on August 24, 1995, which was partially granted by the trial court, Dennis, J., in accordance with a stipulation of the parties dated November 17, 1995. Three motions followed that apparently were not ruled on by the trial court, as there is no disposition of them in the trial court file. These were a motion by the plaintiff to modify the visitation schedule as it related to transporting the child, filed on February 23, 1996, a motion by the defendant to modify moving for sole custody filed on April 3, 1996, and another motion by the defendant for either sole custody or an alteration in his visitation schedule, filed May 30, 1996. These motions may not have been ruled on because two later motions, which were ruled on by the trial court, Mihalakos, J., in the August 12,1996 order, covered some of the same issues. These were a motion to modify filed by the plaintiff on May 31, 1996, again regarding transportation of the child, and the defendant’s motion to modify filed June 13, 1996, regarding the child support payments as reduced by the child support guidelines.
      The judgment of August 12,1996, followed this last motion to modify and is one of the subjects of this appeal. At least five different judges have been asked to rule on the various motions filed.

       Prior to the judgment of dissolution, pendente lite orders were rendered on January 30, 1995, ordering shared custody of the child, which provided that the child live with the defendant during one week from Wednesday morning to Saturday noon, and with the plaintiff from Saturday noon to Wednesday morning, and during the alternate weeks, with the defendant from Wednesday morning to Sunday noon, and with the plaintiff from Sunday noon to Wednesday morning. Because of this order, the court, Moraghan, J., found the application of the child support guidelines to be inequitable and ordered no child support to or from either party.


text:
    BARBARA CONTE v. DAVID A. CONTE
    (AC 16027)
    Dupont, C. J., and Foti and Spear, Js.
    Argued March 21
    officially released May 20, 1997

      Martin M. Rutchik, with whom, on the brief, was Sharon Lee Gibbs, for the appellant (plaintiff).

      Nathan Nasser, with whom, on the brief, was Gary Traystman, for the appellee (defendant).
   Opinion

PER CURIAM.

In this appeal, the plaintiff claims that the trial court improperly (1) failed to modify the judgment of dissolution of marriage by ordering the defendant to subordinate his mortgage on property of the plaintiff so that the plaintiff could refinance the property, (2) denied the plaintiffs motion for advice with respect to an arbitrator’s division of personal property and (3) levied a fine of $100 against the attorney for the plaintiff.

In reviewing the modification issue, the question before us is whether the trial court abused its discretion. See Borkowski v. Borkowski, 228 Conn. 729, 740, 638 A.2d 1060 (1994); Evans v. Evans, 35 Conn. App. 246, 251, 644 A.2d 1317 (1994). Our examination of the record shows that the trial court did not abuse its discretion in denying the motion to modify the judgment. The parties agreed to be bound by the arbitrator’s decision with respect to the division of their personal property. The plaintiffs dissatisfaction with that division does not warrant judicial intervention in light of the agreement.

The appeal with respect to the last issue is dismissed because the attorney is not a party to this action and, “where a nonparty is aggrieved by a ruling made in the context of an ongoing action, that person’s remedy is by writ of error rather than by appeal.” Kennedy v. QVC Network, Inc., 43 Conn. App. 851, 854, 686 A.2d 997 (1996).

The appeal from the imposition of a fine against the plaintiffs attorney is dismissed; in all other respects, the judgment is affirmed.

       General Statutes § 52-272 provides that writs of error may be “brought to the Supreme Court.”


text:
    PERKINS AND MARIO, P.C. v. ALBERT R. ANNUNZIATA
    (AC 15878)
    Landau, Schaller and Shea, Js.
    Argued January 21
    officially released May 20, 1997

      Jonathan Perkins, with whom, on the brief, was Robert Luysterborghs, for the appellant (plaintiff).

      John T. Grillo, for the appellee (defendant).
   Opinion

LANDAU, J.

The plaintiff, Perkins & Mario, P.C., appeals from the judgment of the trial court dismissing its application to modify, correct or vacate an arbitration award in favor of the defendant, Albert R. Annunziata. On appeal, the plaintiff claims that the trial court improperly dismissed its application because (1) the award of fees to a discharged attorney who handled a personal injury matter on a contingency fee basis and had no written fee agreement is against public policy, (2) the arbitrators exceeded their power and acted contrary to law, and (3) one of the arbitrators had a personal, pecuniary interest in the legal issue to be decided. We reverse the judgment of the trial court.

The facts are not in dispute. In October, 1992, Kim German retained the defendant to represent her concerning her claims for damages arising out of an automobile accident. German did not enter into a written fee agreement with the defendant. The defendant represented German for approximately thirteen months. In a letter dated November 4, 1993, German discharged the defendant and retained the plaintiff to represent her. The plaintiff agreed that, upon the settlement of German’s claim, it would hold attorney’s fees in the amount of $1333.33 in escrow, pending the resolution by arbitration of the defendant’s claim for services rendered. The defendant then forwarded the file to the plaintiff. Subsequently, the case settled and generated attorney’s fees of $8300.

After the settlement, the parties could not agree on the amount of the attorney’s fees owed to the defendant. The parties agreed to arbitrate the apportionment of the fee and the submission to the arbitrators asked them to determine the legal fee allocation. Following an unrecorded hearing, in which the defendant’s claim sounded in quantum meruit, the arbitrators divided the $8300 fee and awarded the defendant $2500 and the plaintiff $5800. The plaintiff filed an application in the trial court to modify, correct or vacate the arbitrators’ award, arguing that the claim was against public policy because the defendant had no written agreement with German, that the award was obtained by corruption, fraud or undue means, and that the arbitrators disregarded certain evidence. Following a hearing and the submission of briefs by the parties, the trial court held that the award was not reviewable for errors of law or fact and dismissed the plaintiffs application. This appeal followed.

The plaintiff first argues that the trial court improperly dismissed its application because the award of fees to a discharged attorney who handled a personal injury matter on a contingency fee basis and had no written fee agreement is against public policy. We agree.

After the briefs were filed in this appeal, this court decided Alan E. Silver, P.C. v. Jacobs, 43 Conn. App. 184, 682 A.2d 551, cert. denied, 239 Conn. 938, 684 A.2d 708 (1996). Silver held that an attorney who worked on a personal injury case could not collect his fee from a successor attorney after settlement in the absence of a written fee agreement between the attorney and the client. The trial court’s decision in Silver was subject to plenary review by this court. Because this appeal is from the confirmation of an arbitration award, however, our standard of review is narrow.

“When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties’ agreement. . . . When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission. . . . Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution.” (Citations omitted.) Garrity v. McCaskey, 223 Conn. 1, 4-5, 612 A.2d 742 (1992).

In determining whether a submission is unrestricted, we look at the authority of the arbitrator. “ ‘The authority of an arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review. In the absence of any such qualifications, an agreement is unrestricted. [Garrity v. McCaskey, supra, 223 Conn. 5]; Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 20, 453 A.2d 1158 (1983).’ ” International Assn. of Fire Fighters, Local 1339, AFL-CIO v. Waterbury, 35 Conn. App. 775, 778, 647 A.2d 361 (1994). Here, the submission asked the arbitrators to determine the legal fee allocation. We agree with the trial court that the award in this case arose out of an unrestricted submission.

“Even in the case of an unrestricted submission, we have, however, recognized three grounds for vacating an award: (1) the award rules on the constitutionality of a statute; Caldor, Inc. v. Thornton, 191 Conn. 336, 344, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985); (2) the award violates clear public policy; Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 339, 555 A.2d 406 (1989); or (3) the award contravenes one or more of the statutory proscriptions of [General Statutes] § 52-418. Carroll v. Aetna Casualty & Surety Co., supra, [189 Conn.] 22-23.” Garrity v. McCaskey, supra, 223 Conn. 6. Here, the plaintiff claims that the arbitrators’ decision was in contravention of public policy.

An arbitration award that violates public policy may be vacated but “only when the award is clearly illegal or clearly violative of a strong public policy.” Garrity v. McCaskey, supra, 223 Conn. 7. When a challenge to the arbitrators’ authority is made on public policy grounds, the court is not concerned with the correctness of the arbitrators’ decision, but with the lawfulness of enforcing the award. See Watertown Police Union Local 541 v. Watertown, supra, 210 Conn. 340. “Parties cannot expect an intervening arbitral award approving conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them.” (Internal quotation marks omitted.) Haynes Construction Co. v. Cascella & Son Construction, Inc., 36 Conn. App. 29, 39, 647 A.2d 1015, cert. denied, 231 Conn. 916, 648 A.2d 152 (1994), quoting Stamford v. Stamford Police Assn., 14 Conn. App. 257, 259, 540 A.2d 400 (1988).

The defendant claims, as did the plaintiff in Silver, that he is entitled to recover his fee for services rendered under the equitable theory of quantum meruit. As we stated in Silver, General Statutes § 52-251c “protects injured persons from excessive legal fees. Berry v. Loiseau, [223 Conn. 786, 830 n.22, 614 A.2d 414 (1992)]. The [defendant], nevertheless, continues to argue that the public does not require protection when the file has been transferred to another attorney and the [defendant] seeks only to recover from the successor attorney. We disagree. It would be unjust to permit an attorney to avoid this public policy by splitting a fee with a successor attorney. Moreover, by enacting § 52-251c without qualification, the legislature has imposed its view that it is more urgent to protect clients from attorneys than to protect attorneys from successor attorneys.'’' (Emphasis added.) Alan E. Silver, P.C. v. Jacobs, supra, 43 Conn. App. 192. In addition, Rule 1.5 (c) of the Rules of Professional Conduct provides in pertinent part: “A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages of the recovery that shall accrue to the lawyer as a fee in the event of settlement, trial or appeal, whether and to what extent the client will be responsible for any court costs and expenses of litigation, and whether such expenses are to be deducted before or after the contingent fee is calculated. ...” The defendant and German executed no such written contingent fee agreement.

Although we recognize that it is the exceptional case that is vacated on appeal because our courts have faithfully given great deference to arbitrators’ decisions, we believe that this is such a case. See State v. Connecticut Council 4, CEU, AFSCME, 7 Conn. App. 286, 290-91, 508 A.2d 806 (1986). The arbitration award violates clear public policy and, as such, the award should have been vacated by the trial court. See Garrity v. McCaskey, supra, 223 Conn. 6.

The judgment is reversed and the case is remanded with direction to vacate the arbitration award.

In this opinion the other judges concurred.

       The arbitrators voted two to one in favor of the award.

       Annunziata is limited to this theory of recovery because he does not have a contractual relationship with German.

       General Statutes § B2-251c (a) provides in relevant part: “In any claim or civil action to recover damages resulting from personal injury . . . the attorney and the claimant may provide by contract, which contract shall comply with all applicable provisions of the rules of professional conduct governing attorneys adopted by the judges of the Superior Court, that the fee for the attorney shall be paid contingent upon, and as a percentage of: (1) Damages awarded and received by the claimant; or (2) settlement amount pursuant to a settlement agreement.”

       Because of our disposition of the plaintiffs first claim, we do not reach the remaining issues.


text:
    SCOTT ANDREWS v. COMMISSIONER OF CORRECTION
    (AC 15526)
    Foti, Lavery and Landau, Js.

      Argued February 20
    officially released May 20, 1997

      Deborah DelPrete Sullivan, assistant public defender, for the appellant (petitioner).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were Patricia A. Swords, state’s attorney, and John Dropick, assistant state’s attorney, for the appellee (respondent).
   Opinion

LANDAU, J.

The petitioner appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly (1) denied his motion for articulation and (2) dismissed his claim of ineffective assistance of counsel. We affirm the judgment of the trial court.

The facts pertinent to this appeal are fully set forth in State v. Andrews, 29 Conn. App. 533, 535-36, 616 A.2d 1148 (1992), cert. denied, 224 Conn. 924, 618 A.2d 531 (1993). “On October 23, 1989, the victim, Wendell Pickney, together with three other youths left Weaver High School in Hartford in a red Jeep driven by Antwane Williams-Bey. They drove to Bloomfield High School to visit with some female students. A second car, a blue Oldsmobile, driven by a youth called Tiger, with Trevor Cumberbatch as a passenger, accompanied them to Bloomfield.

“When they returned to Hartford on Blue Hills Avenue, one of the passengers in the red Jeep, Kevin Waite, observed a green Datsun with three people inside make a right turn off Harold Street. Waite observed that Kendall Crowe was driving the Datsun, Uracca Lindsay was in the front passenger seat and the [petitioner], Scott Tyrone Andrews, occupied the rear seat. These three individuals lived in a neighborhood different from that of the victim and his friends. The residents of these two neighborhoods had previously exhibited ill will toward each other.

“Waite observed Lindsay point a gun out of the front passenger window of the Datsun, but Lindsay did not fire a shot at that time. The Datsun continued to follow the Jeep until it reached Mt. Sinai Hospital. It turned abruptly into the hospital and then exited onto Manchester Street. The Jeep and the blue Oldsmobile both made U-tums on Blue Hills Avenue. When the Datsun emerged from Manchester Street onto Blue Hills Avenue, it was travelling in the opposite direction from the Jeep and the Oldsmobile.

“As the Datsun passed the Jeep, Waite observed the [petitioner], seated in the back seat of the Datsun, point a gun with a black barrel and a brown stock out of the car window and fire at the Jeep. Other witnesses also identified the [petitioner] as the person who shot at the Jeep from the window of the Datsun. Waite ducked when he heard the shot, felt blood drip onto his head and then saw that blood was pouring down heavily from the victim’s neck. The operator of the Jeep immediately pulled into the emergency entrance of Mt. Sinai Hospital seeking medical attention for the victim.

“Emergency medical personnel responded and observed the victim slumped over in the back seat of the vehicle, bleeding profusely from a wound behind his left ear. The victim appeared not to be breathing, although a nurse from the emergency department of Mt. Sinai Hospital was able to detect a carotid pulse. Hospital personnel removed the victim from the Jeep and brought him into the emergency room where they attempted unsuccessfully to resuscitate him. The victim died from a gunshot wound to the left side of his neck.”

After a jury trial, the petitioner was convicted of manslaughter in the first degree. This court affirmed the judgment of conviction on appeal, and the Supreme Court denied certification. The petitioner sought habeas corpus relief, and, following an evidentiary hearing, the habeas court dismissed the petition and subsequently granted the petitioner permission to appeal.

I

The petitioner first claims that the habeas court improperly denied his motion for articulation. He argues that the habeas court failed to comply with the mandates of Practice Book § 4059 by failing to address, in its memorandum of decision, his claim of ineffective assistance of counsel. He filed a motion for articulation on January 29,1996. On March 13,1996, after the habeas court denied the petitioner’s motion for articulation, he filed a motion for review in this court. We granted the petitioner’s motion for review but denied the relief requested therein.

While it might be reasonably argued that in State v. Holloway, 22 Conn. App. 265, 577 A.2d 1064, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990), we merely discouraged an attempt by a litigant to brief a matter on the merits when he was disappointed with a ruling on a motion to review; see W. Horton & S. Cormier, Rules of Appellate Procedure (1997 Ed.) § 4053, comment 9; in Santoro v. Santoro, 33 Conn. App. 839, 842, 639 A.2d 1044 (1994), we closed the door on this practice. In Santoro, we concluded that if we permitted the petitioner to raise this issue again in his appeal, we would “ ‘be providing two appellate reviews of the same issue.’ ” Id. Thus, we will not review this claim.

II

The petitioner next claims that the habeas court improperly dismissed his claim of ineffective assistance of counsel. The petitioner claimed before the habeas court that he was rendered ineffective assistance of counsel due to his trial counsel’s failure to interview or to attempt to interview the codefendants and witnesses to the incident and another witness, Andre Crowe, and his failure to investigate the firearms examination report. We address these claims in turn.

The standard to be applied by habeas courts in determining whether an attorney effectively represented a criminal defendant is set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “In order for a criminal defendant to prevail on a constitutional claim of ineffective assistance of counsel, he must establish both (1) deficient performance, and (2) actual prejudice.” Bunkley v. Commissioner of Correction, 222 Conn. 444, 445, 610 A.2d 598 (1992). “Thus, he must establish not only that his counsel’s performance was deficient, but that as a result thereof he suffered actual prejudice, namely, ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Id., quoting Strickland v. Washington, supra, 694. “In this context, a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different, does not require the petitioner to show that counsel’s deficient conduct more likely than not altered the outcome in the case. . . . Rather, it merely requires the prisoner to establish a probability sufficient to undermine confidence in the outcome.” (Citations omitted; internal quotation marks omitted.) Bunkley v. Commissioner of Correction, supra, 445-46.

The petitioner contends that the habeas court improperly denied his petition solely on the basis that he had not satisfied the prejudice requirement of the Strickland test. A court, however, need not determine the deficiency of counsel’s performance if consideration of the prejudice requirement will be dispositive of the ineffectiveness claim. See Harris v. Commissioner of Correction, 40 Conn. App. 250, 256, 671 A.2d 359 (1996); Pelletier v. Warden, 32 Conn. App. 38, 46, 627 A.2d 1363, cert. denied, 227 Conn. 920, 632 A.2d 694 (1993).

With regard to trial counsel’s failure to procure the testimony of the codefendants, Lindsay and Kendall Crowe, the habeas court correctly reasoned that the petitioner presented insufficient proof of prejudice. The petitioner did not call the codefendants at the habeas hearing or otherwise present evidence to establish that their testimony at trial would be favorable to him.

With regard to trial counsel’s failure to call Andre Crowe, Kendall Crowe’s brother, as a witness, the habeas court correctly concluded, after reviewing Andre Crowe’s statements given to the police after the shooting and the petitioner’s failure to call Andre Crowe at the habeas hearing, that the petitioner failed to prove prejudice. The habeas court further concluded that the beneficial impact of his prospective testimony remains unproven.

Finally, trial counsel’s failure to call Robert Hathaway, a former state police officer who had conducted a firearms examination of the caliber of the bullet that killed the victim, or otherwise to present the findings of the firearms examination report did not prejudice the petitioner. The habeas court properly concluded that, because the victim’s companions in the Jeep and the Oldsmobile testified at trial that they could not identify the particular type of firearm used by the petitioner, the caliber of the bullet played no significant part in the case.

The petitioner has failed to establish “ ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Bunkley v. Commissioner of Correction, supra, 222 Conn. 445, quoting Strickland v. Washington, supra, 466 U.S. 694. Thus, we conclude that the habeas court properly found that the petitioner was not deprived of his constitutionally mandated right to effective assistance of counsel.

The judgment is affirmed.

In this opinion the other judges concurred.

       We decline the petitioner’s invitation to order the habeas court to articulate its decision pursuant to our supervisory powers. See Practice Book § 4183.

       No evidence was adduced at the habeas hearing regarding the availability or willingness of these persons to be interviewed.