author: SCHALLER, J.

text:
    CTB VENTURES 55, INC. v. CHARLES RUBENSTEIN ET AL.
    (14193)
    Landau, SchaUer and Hennessy, Js.

      Argued September 20
    decision released November 14, 1995

      Richard P. Weinstein, with whom, on the brief, was Peter B. Rustin, for the appellant (named defendant).

      Thomas A. Kaelin, with whom, on the brief, was John R. Jlorvack, for the appellee (plaintiff).
   SCHALLER, J.

The named defendant, Charles Rubenstein, appeals from a deficiency judgment rendered against him. The defendant claims that the trial court improperly (1) allowed the plaintiff to offer in the deficiency hearing an expert witness who had not been disclosed to the defendant pursuant to Practice Book § 220 (D), (2) denied the defendant a jury trial for the deficiency hearing, (3) found that the plaintiff presented sufficient evidence to justify a deficiency judgment, (4) awarded the plaintiff damages pursuant to a prepayment clause in the mortgage note, (5) permitted the plaintiff to present additional evidence after the close of its case, and (6) admitted microfiche copies of checks into evidence. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. In September, 1988, the defendant assumed a promissory note secured by a mortgage deed, a conditional assignment of leases and rentals, a security agreement, and a UCC-1 financing statement, all of which had been executed to Connecticut Savings Bank (CSB). In November, 1991, Centerbank acquired the right, title and interest of CSB in the note and security instruments. On May 6, 1992, Centerbank commenced a foreclosure action against the defendant alleging that the defendant had defaulted on his obligation to the bank. On June 5, 1992, Centerbank filed a request for disclosure of defense. On July 6,1992, the trial court entered a default for failure to disclose a defense against the defendant. By motion filed October 15,1992, CTB Ventures 55, Inc. (CTB), was substituted as the plaintiff in the foreclosure action.

On November 16, 1992, the trial court rendered a judgment of strict foreclosure against the defendant. The court found a debt of $911,948.01, which represented $773,073.89 of principal on the note, $100,220.43 of accrued interest, and a $38,653.69 prepayment fee. The court also awarded attorney’s fees of $3200, title search fees of $150 and appraiser’s fees of $2500. The defendant did not redeem on his law day, and title to the mortgaged property, condominium units 201, 203, 204 and 205 at 60 Washington Street, Hamden, vested in CTB on January 28, 1993.

On February 11, 1993, CTB moved for a deficiency judgment pursuant to General Statutes § 49-14. On February 18, 1993, the defendant filed a claim for a jury trial. On June 24, 1993, the trial court held a deficiency hearing and found the value of the property on the date that title vested in CTB to be $720,000. On November 7, 1994, the court took additional evidence and found the total debt as of the day title vested in CTB to be $1,005,524.10, including the principal, interest, attorney’s fees, and appraisal fees that had been awarded at the time of the judgment of strict foreclosure, plus additional interest, attorney’s fees, appraisal fees, and common charges and real estate taxes encumbering the property. This left a deficiency of $285,524.10. The court rendered a deficiency judgment against the defendant in that amount.

I

The defendant first claims that the trial court improperly allowed the plaintiff to offer, at the June 24, 1993 deficiency hearing, an expert witness who had not been disclosed to the defendant in accordance with Practice Book § 220 (D). The defendant argues that a deficiency hearing is a trial for purposes of § 220 (D). The defendant further argues that to hold otherwise allows parties to practice trial by ambush in deficiency hearings. We find no merit to this claim.

The following additional facts are necessary for the resolution of this issue. On June 22,1993, the defendant moved that the trial court preclude the appraisal testimony of Timothy J. Breda, a commercial real estate appraiser with the Jerry R. Adkins Company. The defendant claimed that the plaintiff failed to disclose Breda until June 14, 1993, despite the plaintiffs filing of a motion for deficiency judgment on February 17, 1993. At the June 24, 1993 deficiency hearing, the trial court denied the defendant’s motion and allowed Breda to testify.

Practice Book § 220 (D) provides in relevant part that “[a]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within 60 days from the date the case is claimed to a trial list. ... If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subsection, or if an expert witness who is expected to testify is retained or specially employed after that date, such expert shall not testify except in the discretion of the court for good cause shown.”

As we have recently stated, deficiency proceedings are statutory creations. See Federal Deposit Ins. Corp. v. Voll, 38 Conn. App. 198, 205, 660 A.2d 358 (1995). Connecticut enacted its first deficiency judgment statute in 1833. Id., citing Farmers & Mechanics Savings Bank v. Durham Realty, Inc., 34 Conn. App. 204, 207, 640 A.2d 1017 (1994). In 1979, however, “[t]he statute was declared unconstitutional on the ground that the failure to provide for an evidentiary hearing violated due process. The legislature accordingly amended the statute to provide that the court hears evidence on the value of the property from both parties and establishes a conclusive valuation of the property.” Federal Deposit Ins. Corp. v. Voll, supra, 209. General Statutes § 49-14 (a) now provides in relevant part that “[a]t any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. Such motion shall be placed on the short calendar for an evidentiary hearing. . . .”

“Statutes are to be applied as their words direct. . . . [I]f the statutory language is clear and unambiguous, there is no room for construction.” (Citation omitted; internal quotation marks omitted.) River Rock & Pile, Inc. v. O & G Industries, Inc., 219 Conn. 787, 805, 595 A.2d 839 (1991). The plain language of § 49-14 clearly authorizes an “evidentiary hearing” as “the only available means of satisfying a mortgage debt when the security was inadequate to make the plaintiff whole. New England Savings Bank v. Lopez, [227 Conn. 270, 278 n.10, 630 A.2d 1010 (1993)], citing D. Caron, Connecticut Foreclosures (2d Ed. 1989) § 9.05A, p. 158.” Federal Deposit Ins. Corp. v. Voll, supra, 38 Conn. App. 205-206. Practice Book § 220 (D), which applies only to trials, does not require the disclosure of expert witnesses who testify at deficiency hearings.

II

The defendant next argues that the trial court improperly refused to afford the defendant a jury trial for the deficiency proceeding. The record on appeal fails to disclose any ruling by the trial court on the defendant’s February 18, 1993 claim for a jury trial. In fact, at the June 24, 1993 deficiency hearing, defendant’s counsel indicated to the trial court that he was prepared to go forward with the hearing despite the lack of a ruling from the trial court.

“We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim.” Keating v. Glass Container Corp., 197 Conn. 428, 431, 497 A.2d 763 (1985); Biggs v. Warden, 26 Conn. App. 52, 57, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991). A party must “advance his argument of [this issue] at trial in compliance with our rules. ...” (Citations omitted; internal quotation marks omitted.) State v. Duntz, 223 Conn. 207, 237, 613 A.2d 224 (1992). Because the defendant did not request a ruling from the trial court, we decline to review this claim. See State v. Zollo, 36 Conn. App. 718, 726, 654 A.2d 359, cert. denied, 234 Conn. 906, 660 A.2d 859 (1995).

III

The defendant next claims that the trial court improperly rendered a deficiency judgment in favor of the plaintiff pursuant to General Statutes § 49-14, when the court adopted the value presented by the defendant’s expert witness to establish the value of the foreclosed property on the day that title vested in the plaintiff. The defendant argues that the plaintiff did not meet its burden of presenting sufficient evidence for the trial court to determine the value of the property, and that the court should have directed a verdict in the defendant’s favor. We disagree with the defendant’s characterization of the evidence and find the defendant’s claim lacking in merit.

The following additional facts are necessary for the resolution of this issue. At the June 24, 1993 deficiency hearing, the plaintiff called Breda as its only witness. Breda testified that on November 3, 1992, he prepared an appraisal of condominium units 201, 203, 204 and 205 at 60 Washington Street, Hamden. Breda further testified that he also prepared an update of that appraisal to establish the property’s value as of January 28, 1993, the day title vested in the plaintiff.

Breda testified that he used two methods to ascertain the value of the property as of January 28,1993. He used the sales comparison approach to value the property at $550,000, and the income approach to value the property at $250,000. Breda concluded that the value of the property was $450,000 as of January 28, 1993. On cross-examination, Breda testified that the 1991 assessed value of the property for tax purposes was $551,600, representing 70 percent of a purported fair market value of $788,000.

Following Breda’s testimony and after the plaintiff rested, the defendant moved for a dismissal, claiming that the plaintiff had not presented sufficient evidence to establish a prima facie case. The defendant specifically argued to the court that Breda had failed to justify his conclusions. The trial court, in an oral ruling from the bench, denied the defendant’s motion. The court ruled that the defendant’s argument went to the weight that the court should give Breda’s appraisal, not to the sufficiency of the evidence.

The defendant then presented the testimony of Robert J. Nocera, an appraiser. Nocera appraised the property as of January 28, 1993, at $720,000. Following the close of evidence, the court also took judicial notice of an appraisal prepared by Durocher Associates, Inc., which valued the property for purposes of the November 16, 1992 foreclosure judgment at $633,000. In rendering a deficiency judgment against the defendant, the court accepted Nocera’s fair market valuation of the property. In its decision, the court stated that it “sincerely questions the reliability of the conclusions reached by [Breda]. I do not accept [$450,000] as the fair market value as of January 28, 1993.”

The defendant now claims that, as a matter of law, where the court had rejected the plaintiffs evidence and accepted, instead, the defendant’s evidence that this court should hold that the plaintiff did not meet its burden of proof. For support, the defendant cites our Supreme Court’s holding in Eichman v. J & J Build ing Co., 216 Conn. 443, 582 A.2d 182 (1990). In Eichman, the Supreme Court held that “implicit in General Statutes § 49-14 is the requirement that the party seeking a deficiency judgment satisfy [its] burden of proof regarding the fair market value of the property as of the date title vests in [that party].” Id., 445. Furthermore, “[i]mplicit in the purpose of the statute is the initial prerequisite that the plaintiff provide the court with sufficient evidence to demonstrate that she is entitled to a deficiency judgment. Indeed ... in a deficiency judgment proceeding . . . the trier may not decide an issue which is wholly unsupported by the evidence.” (Internal quotation marks omitted.) Id., 450.

It is also clear, however, that “[t]he determination of [a property’s] value by a court is the expression of the court’s opinion aided ordinarily by the opinions of expert witnesses, and reached by weighing those opinions in light of all the circumstances in evidence bearing upon value and its own general knowledge of the elements going to establish it. . . . [T]he determination of the credibility of expert witnesses and the weight to be accorded their testimony is within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible.” (Citations omitted; internal quotation marks omitted.) Id., 451-52.

In this case, the trial court considered the following four valuations of the property: (1) the 1991 valuation by the town of Hamden in the amount of $788,000; (2) the November 16, 1992 valuation by Durocher in the amount of $633,000; (3) the January 28, 1993 valuation by Breda in the amount of $450,000; and (4) the January 28, 1993 valuation by Nocera in the amount of $720,000. At the close of the plaintiffs evidence, the court had been presented with the 1991 valuation by the town of Hamden in the amount of $788,000 and the January 28, 1993 valuation by Breda in the amount of $450,000. The defendant then presented Nocera’s January 28, 1993 appraisal of $720,000, which the court accepted as the market value of the property on the day that title vested in the plaintiff.

While we note that the trial court questioned the reliability of the conclusions reached by Breda, “[t]his court cannot retry the facts or pass upon the credibility of witnesses.” Holy Trinity Church of God in Christ v. Aetna Casualty & Surety Co., 214 Conn. 216, 223, 571 A.2d 107 (1990). “As the finder of fact, the trial court had discretion to accept or reject any or all of the testimony of the opposing expert appraisers.” Union Trust Co. v. Fordham, 36 Conn. App. 630, 630-31, 651 A.2d 1350 (1995). The trial court properly exercised its discretion in finding that the value of the property was $720,000. Its decision to do so does not require a conclusion that the plaintiff failed to present a prima facie case.

IV

The defendant next claims that the trial court improperly awarded the plaintiff damages pursuant to a prepayment clause in the mortgage note. The defendant argues that the strict foreclosure of the defendant’s interest in the property does not trigger the note’s prepayment clause, and that, even if it did, the clause is an unenforceable penalty. We do not reach the defendant’s claim, however, because the defendant’s appeal on this issue is untimely.

A review of the procedural facts is necessary for disposition of this claim. On July 6,1992, the defendant was defaulted for failure to disclose a defense. The plaintiff, thereafter, offered into evidence, pursuant to Practice Book § 527, an affidavit of debt, which included a $38,653.69 prepayment fee. On November 16, 1992, the trial court rendered a judgment of strict foreclosure in favor of the plaintiff based on the affidavit of debt. On February 11, 1993, the plaintiff moved for a deficiency judgment against the defendant. On June 24, 1993 and November 7, 1994, a deficiency hearing was held, and on November 7, 1994, the trial court rendered a deficiency judgment of $285,524.10 against the defendant.

The defendant now attempts to appeal the awarding of the prepayment fee. The defendant argues that he reserved his right to appeal by filing a notice of intent to appeal on November 24, 1992, within twenty days of notice of the strict foreclosure judgment. The defendant specifically stated in his notice of intent to appeal that he intended to challenge the trial court’s awarding of the $38,653.69 prepayment fee. The appeal period of a final judgment may be extended either pursuant to Practice Book § 4009 by filing a motion “which, if granted, would render the judgment or decision ineffective,” or pursuant to Practice Book § 4040 by filing a motion for an extension of time. Wilton v. McGovern, 33 Conn. App. 517, 518-19, 636 A.2d 870, cert. denied, 228 Conn. 928, 640 A.2d 116 (1994). Because the defendant did not properly move to extend the appeal period or file an appeal within twenty days of the notice of final judgment, the prepayment fee was no longer appealable. Id.

The defendant claims that he is not challenging his liability on the mortgage debt, but, rather, that he is challenging the trial court’s awarding of the prepayment fee when the deficiency judgment was increased by the amount of the fee. This claim, however, is inconsistent with the defendant’s assertion that he reserved his right to appeal the prepayment fee by filing a notice of intent to appeal the strict foreclosure judgment. Moreover, while we have observed that “ ‘the procedure used to obtain a deficiency judgment [in a foreclosure action] is also part of the main action’ Bank of Stamford v. Alaimo, 31 Conn. App. 1, 8, 622 A.2d 1057 (1993), quoting People’s Bank v. Bilmor Building Corp., 28 Conn. App. 809, 822, 614 A.2d 456 (1992); “[t]he proceedings on a motion for a deficiency judgment ... do not implicate the integrity of the prior, final judgment of strict foreclosure." Federal Deposit Ins. Corp. v. Retirement Management Group, Inc., 31 Conn. App. 80, 86, 623 A.2d 517, cert. denied, 226 Conn. 908, 625 A.2d 1378 (1993).

“Our Supreme Court has held that ‘[i]n the hearing contemplated under § 49-14 to obtain a deficiency judgment, the court, after hearing the party’s appraisers, determines the value of the property and determines any deficiency. This deficiency judgment procedure presumes the amount of the debt as established by the foreclosure judgment and merely provides for a hearing on the value of the property.’ ” Vignot v. Bank of Mystic, 32 Conn. App. 309, 313, 628 A.2d 1339 (1993), quoting First Bank v. Simpson, 199 Conn. 369, 373, 507 A.2d 997 (1986). The defendant’s challenge to the prepayment fee amounts to a challenge of the debt and does not fall within the limited nature of the deficiency hearing. Vignot v. Bank of Mystic, supra, 313. The awarding of the prepayment fee, therefore, cannot be challenged in an appeal from the deficiency judgment.

The trial court entered a judgment of strict foreclosure, including the prepayment fee, on November 16, 1992. On November 21, 1994, the defendant filed this appeal. Practice Book § 4009 provides in pertinent part: “The party appealing shall, within twenty days . . . from the issuance of notice of the rendition of the judgment or decision from which the appeal is taken file an appeal . . . .” The appeal, filed two years after notice of the judgment issued, is untimely.

V

The defendant next claims that the trial court abused its discretion by permitting the plaintiff to return for a “second” deficiency hearing and introduce evidence of real estate taxes and condominium fees after the close of evidence in the “first” deficiency hearing. The defendant argues that the trial court’s admission of additional evidence was improper because the plaintiff did not show that its omission of the evidence at the first hearing was by inadvertence or mistake. We conclude that the trial court did not abuse its discretion.

This claim stems from the following additional facts. At the close of the June 24, 1993 deficiency hearing, the trial court found the fair market value of the subject property to be $720,000 as of the date title vested in the plaintiff. Before the court established a deficiency judgment, however, the plaintiffs counsel claimed that the plaintiff was entitled to taxes and condominium fees as outlined in an affidavit that the plaintiff had earlier submitted to the trial court. The defendant’s counsel objected, arguing that the plaintiff had failed to present evidence of these charges to the court properly. The court declined to make an evidentiary ruling on the affidavit and adjourned the proceedings. The court stated that it would be “available” at some later time to hear evidence on the taxes and fees if the parties could not reach an agreement.

On November 7, 1994, the parties appeared before the trial court to complete the deficiency hearing. The defendant renewed his objection to the presentation of further evidence by the plaintiff. The court, however, took notice of its own statement that it would allow additional evidence if the parties failed to reach an agreement and noted that the additional evidence concerned “collateral issues” to the hearing’s primary concern of establishing a fair market value of the subject property as of the date title vested. The plaintiff then presented evidence that the defendant owed $9743.16 in condominium fees and $22,430.65 in real estate taxes to the plaintiff.

“Whether or not a trial court will permit further evidence to be offered after the close of testimony in the case is a matter resting within its discretion. ... In the ordinary situation where a trial court feels that, by inadvertence or mistake, there has been a failure to introduce available evidence upon a material issue in the case of such a nature that in its absence there is a serious danger of a miscarriage of justice, it may properly permit that evidence to be introduced at any time before the case has been decided.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Suffield Bank v. Berman, 228 Conn. 766, 782-83, 639 A.2d 1033 (1994), quoting State v. Holmquist, 173 Conn. 140, 152, 376 A.2d 1111, cert. denied, 434 U.S. 906, 98 S. Ct. 306, 54 L. Ed. 2d 193 (1977).

Our review of the record reveals that the plaintiff claimed to have filed an affidavit with the court that set forth the fees and taxes, but that the defendant objected to the court’s taking notice of the affidavit as evidence. “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. DiPalma v. Wiesen, 163 Conn. 293, 298,303 A.2d 709 [1972]. Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. State v. Brown, 169 Conn. 692, 702, 364 A.2d 186 [1975].” (Internal quotation marks omitted.) Suffield Bank v. Berman, supra, 228 Conn. 783, quoting State v. Holmquist, supra, 173 Conn. 152-53. The court did not rule on the admissibility of the offered affidavit at the June 24,1993 hearing. It is reasonable to conclude that the trial court believed, in light of the available evidence, that the parties could reach an agreement among themselves, and that if the parties did not reach an agreement no injustice would be done by continuing the hearing on a future date. We conclude, therefore, that the trial court did not abuse its discretion.

VI

The defendant’s final claim is that the trial court improperly admitted into evidence microfiche copies of checks offered by the plaintiff. The defendant argues that the copies did not satisfy the best evidence rule or qualify as business records pursuant to General Statutes § 52-180. We find no merit to the defendant’s claim.

“Section 52-180 should be liberally construed, and review is limited to determining whether the trial court abused its discretion in admitting a document under that section.” State v. Lawler, 30 Conn. App. 827, 832, 622 A.2d 1040 (1993). “Pursuant to General Statutes § 52-180 (c), reproductions of business records are admissible as originals if the conditions set forth in General Statutes § 52-180 (a) are satisfied. Burkert v. Petrol Plus of Naugatuck, Inc., 5 Conn. App. 296, 299, 497 A.2d 1027 (1985); C. Tait & J. LaPlante, Connecticut Evidence § 10.10. ‘A copy of a business record is admissible under the statute if (1) the copy was made in the ordinary course of business and (2) the copy accurately reproduced the original on a durable medium.’ State v. Crumble, 24 Conn. App. 57, 69, 585 A.2d 1245, cert. denied, 218 Conn. 902, 588 A.2d 1077 (1991).” State v. Pearl, 28 Conn. App. 521, 534, 613 A.2d 304 (1992).

The evidence claimed by the defendant to have been erroneously admitted consisted of microfiche copies of checks showing the real estate taxes and condominium fees that the plaintiff paid on the foreclosed property. Christopher Ursini, a commercial loan officer for the plaintiff, testified that he was the officer responsible for handling the loan on the property involved in this case, and that he arranged to have the checks processed. The checks would have been dated at the time that they were prepared by an employee of the plaintiff. Ursini further testified that after the checks are cashed they are returned to the bank and microfilmed, and the originals are placed in storage. We conclude that the trial court properly allowed the microfiche copies of the checks in evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       Other defendants in the action include the original mortgagors and subsequent lienholders. We will refer in this opinion to Charles Rubenstein as the defendant

       We initially note that, although the trial court questioned the reliability and rejected the conclusion as to fair market value of this expert witness, the trial court did not reject all of this expert witness’ testimony. The expert witness’ testimony covered preliminary matters that the trial court considered. We conclude, therefore, that the defendant was aggrieved by the trial court’s decision to allow an expert witness who had not been disclosed in accordance with Practice Book § 220 (D) to testily. Windham Taxpayers Assn. v. Board of Selectmen, 234 Conn. 513, 523, 662 A.2d 1281 (1995) (“first, the party claiming aggrievement must demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest shared by the community as a whole; second, the party claiming aggrievement must establish that this specific personal and legal interest has been specially and injuriously affected by the decision”).

       The defendant also argues that Practice Book § 528 requires the disclosure of an expert witness who may testify at a deficiency hearing. Practice Book § 528 provides in relevant part that “[wjhenever a deficiency judgment is claimed in a foreclosure action, the party claiming such judgment shall file with the clerk of the court within the time limited by statute a written motion setting forth the facts relied on as the basis for the judgment . . . .” The plaintiff contends, however, that the defendant failed to raise this claim at the deficiency hearing. We examine the record to determine whether the defendant raised the issue in question at the deficiency hearing. State v. Zollo, 36 Conn. App. 718, 726, 654 A.2d A.2d 359, cert. denied, 234 Conn. 906, 660 A.2d 859 (1995). We decline to address the defendant’s claim because Practice Book § 528 was not the basis for the defendant’s motion to exclude testimony and was not raised in the trial court. See Heritage Village Master Assn., Inc. v. Heritage Village Water Co., 30 Conn. App. 693, 703, 622 A.2d 578 (1993).

       Compare Connecticut Bank & Trust Co., N.A. v. Reckert, 33 Conn. App. 702, 638 A.2d 44 (1994), in which this court applied Practice Book § 220 (D) to the trial of a foreclosure action.

       We also note that we recently decided that article first, § 19, of the Connecticut constitution does not mandate a right to a jury trial in a deficiency proceeding. Federal Deposit Ins. Corp. v. Voll, supra, 38 Conn. App. 198. If this claim were reviewable, we would be guided by that decision.

       While there is no formally established procedure to move for the dismissal of a motion for a deficiency judgment, our Supreme Court recognized in Eichman v. J &J Building Co., 216 Conn. 443, 582 A.2d 182 (1990), that the trial court may dismiss such a motion if the plaintiff fails to establish a prima facie case. Although a deficiency proceeding is not a trial, the motion to dismiss a deficiency judgment for a failure to state a prima facie case is akin to, and has the same effect as, a Practice Book § 302 motion for a directed verdict.

       The appraisal and the update were both admitted as exhibits.

       The plaintiff had submitted this appraisal in support of its motion for judgment for judgment of strict foreclosure. In Eichman v. J & J Building Co., 216 Conn. 443, 457, 582 A.2d 182 (1990), our Supreme Court held it to be error, albeit harmless error, for the trial court to draw inferences from the value placed on the property for the purposes of rendering judgment of strict foreclosure in order to determine the value of the property for the purposes of rendering a deficiency judgment. In this case, however, neither party objected to the trial court’s taking judicial notice of the appraisal prepared by Durocher Associates, Inc. Any such error, therefore, is not before this court. Keating v. Glass Container Corp., supra, 197 Conn. 428, 431; Biggs v. Warden, supra, 26 Conn. App. 57.

       Practice Book § 236 provides: “In any action to foreclose or discharge any mortgage or lien or to quiet title, or in any action upon any written contract, in which there is an appearance by an attorney for any defendant, the plaintiff may at any time file and serve in accordance with Sec. 120 a written demand that such attorney present to the court, to become a part of the file in such case, a writing signed by him stating whether he has reason to believe and does believe that there exists a bona fide defense to the plaintiffs action and whether such defense will be made, together with a general statement of the nature or substance of such defense. If the defendant fails to disclose a defense within five days of the filing of such demand, the plaintiff may file a written motion that a default be entered against the defendant by reason of the failure of the defendant to disclose a defense. If no disclosure of defense has been filed, the court may order judgment upon default to be entered for the plaintiff at the time the motion is heard or thereafter, provided that in either event a separate motion for such judgment has been filed. The motions for default and for judgment upon default may be served and filed simultaneously but shall be separate motions.”

       Practice Book § 527 provides: “In any action to foreclose a mortgage where no defense as to the amount of the mortgage debt is interposed, such debt may be proved by presenting to the court the original note and mortgage, together with the affidavit of the plaintiff or other person familiar with the indebtedness, stating what amount, including interest to the date of the hearing, is due, and that there is no setoff or counterclaim thereto.”

       The plaintiffs complaint requested, inter alia, “[pjayment of all sums due and owing.” The defendant argues that he could not be expected to disclose his defense to the prepayment penalty fee prior to the plaintiffs filing of an affidavit of debt because the complaint did not provide notice of such a claim. We have stated, however, that “[i]n the absence of a request for a more specific statement the complaint need not detail the elements constituting the mortgage debt. ” Burritt Mutual Savings Bank of New Britain v. Tucker, 183 Conn. 369, 375, 439 A.2d 396 (1981).

       Practice Book § 4002 (a) provides that parties may reserve their right to appeal judgments pursuant to subsections (b) and (c) of this rule. Practice Book § 4002 (b) refers to complaints, counterclaims, cross complaints and counts therein that are stricken pursuant to Practice Book § 157; § 4002 (c) refers to complaints, counterclaims, cross complaints and counts therein that are dismissed pursuant to Practice Book § 142 or a summary judgment pursuant to Practice Book § 378. The November 16,1992 judgment of strict foreclosure does not fall within § 4002 (b) or (c). The defendant, therefore, could not reserve his right to appeal the judgment of strict foreclosure. As we have stated, “due to the nature of foreclosure actions, the spirit of the rules is to expedite matters.” Suffield Bank v. Berman, 25 Conn. App. 369, 373, 594 A.2d 493, cert denied, 220 Conn. 913, 914, 597 A.2d 339, 340 (1991).

       The defendant has also not furnished this court with either a signed transcript or a memorandum of decision concerning the judgment of strict foreclosure pursuant to Practice Book § 4061, which provides in pertinent part: “It is the responsibility of the appellant to provide an adequate record for review.”

       While it is unclear from the trial court file when notice of the strict foreclosure judgment actually issued, it is reasonable to conclude that notice issued by November 24, 1992, the date on which the defendant filed his notice of intent to appeal.

       The defendant claims that the plaintiff, in fact, received a second hearing to establish the deficiency in contravention of Practice Book § 528, which provides for “an evidentiary hearing.” The trial court, however, never closed the deficiency hearing held on June 24, 1993. Moreover, the trial court did not actually render a deficiency judgment in the case until the conclusion of the second day of evidence, November 7, 1994.

       General Statutes § 52-180 provides in pertinent part: “Admissibility of business entries and photographic copies, (a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to malm the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.....
      “(c) Except as provided in chapter 3, if any person in the regular course of business has kept or recorded any memorandum, writing, entry, print, representation or combination thereof, of any act, transaction, occurrence or event, and in the regular course of business has caused any or all of them to be recorded, copied or reproduced by any photographic, photostatic, microfilm, microcard, miniature photographic or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless its preservation is otherwise required by statute. The reproduction, when satisfactorily identified, shall be as admissible in evidence as the original in any judicial or administrative proceeding, whether the original is in existence or not, and an enlargement or facsimile of the reproduction shall be likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of court. The introduction of a reproduced record, enlargement or facsimile shall not preclude admission of the original.”


source: Caselaw Access Project

author: O’CONNELL, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ROGER D. ELLS
    (13284)
    O’Connell, Landau and Hennessy, Js.
    Argued October 2
    decision released November 14, 1995

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Denise B. Smoker, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Herbert E. Carlson, Jr., supervisory assistant state’s attorney, for the appellee (state).
   O’CONNELL, J.

The defendant appeals from the judgment of conviction, rendered after a trial to the court, of three counts of risk of injuiy to a child in violation of General Statutes § 53-21. The defendant claims that (1) the trial court improperly allowed a child to testily outside the defendant’s presence, (2) the trial court failed to recuse itself, sua sponte, and (3) the defendant’s waiver of a jury trial was not exercised knowingly, intelligently, and voluntarily. We affirm the judgment of the trial court.

The defendant was charged with sexual assault and risk of injury involving a six year old child. The defendant originally pleaded not guilty to one count of sexual assault in the first degree and one count of risk of injury to a child and elected a jury trial. The defendant subsequently withdrew his not guilty plea and pleaded guilty under the Alford doctrine to one count of risk of injury to a child. The trial court later allowed the defendant to withdraw his Alford plea, thereby reinstating his case to the jury list. Following the withdrawal of the defendant’s plea, the state filed one additional count of sexual assault in the first degree and two additional counts of risk of injury to a child. The defendant subsequently pleaded not guilty to all additional charges and elected to have his case tried to the court. The court found the defendant not guilty of the counts of sexual assault and guilty of the risk of injury charges.

I

Pursuant to General Statutes § 54-86g, the court granted the state’s motion to allow a six year old child to testify outside the defendant’s presence. The defendant claims that the trial court failed to apply the proper standard in granting this motion. We do not agree.

Section 54-86g permits a court, under limited circumstances, to order that the testimony of a child alleged to be a victim of sexual abuse be taken outside the defendant’s presence. State v. Jarzbek, 204 Conn. 683, 704-705, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988). To take advantage of this statute, the state must establish by clear and convincing evidence that a compelling need exists to exclude the defendant in order to preserve the accuracy and reliability of the minor’s testimony. Id. In order to satisfy its burden, the state must show that the “minor victim would be so intimidated . . . by the physical presence of the defendant that the trustworthiness of the victim’s testimony would be seriously called into question.” (Internal quotation marks omitted.) State v. Bonello, 210 Conn. 51, 59, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S. Ct. 3268, 106 L. Ed. 2d 612 (1989); State v. Spigarolo, 210 Conn. 359, 368, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989).

In order to fulfill the compelling need requirement of § 54-86g and Jarzbek, the state must present evidence that the reliability of the minor victim’s testimony will be impaired if the child is forced to testify in the defendant’s presence. “Although the trial court may consider the well-being of the [child] as a significant factor in its analysis, the state cannot prove [compelling] need simply by demonstrating that the victim would suffer some harm if forced to testify in the presence of the accused.” State v. Jarzbek, supra, 204 Conn. 705. Because the defendant’s constitutional right of confrontation is implicated in such a determination, the trial court must focus primarily on the reliability of the minor victim’s testimony.

The defendant does not challenge the sufficiency of the evidence to support a finding of compelling need and concedes that the state presented ample evidence to meet its burden in this case. Instead, the defendant contends only that the trial court did not make the specific finding of compelling need mandated by § 54-86g and Jarzbek when making its determination. In ascertaining whether a trial court has made the necessary findings to invoke the provisions of § 54-86g, this court reviews the record in its entirety. State v. Darby, 19 Conn. App. 445, 455-56, 563 A.2d 710, cert. denied, 213 Conn. 801, 567 A.2d 833 (1989).

We agree with the defendant that the trial court did not use the talismanic words “compelling need” when enunciating its determination, but it is clear from the record that the trial court engaged in the proper inquiry before making the necessary finding. The court recognized that it could exclude the defendant from the courtroom only if the state had demonstrated by clear and convincing evidence that the reliability of the minor victim’s testimony would be adversely affected by the defendant’s presence and properly focused its inquiry on that question.

Despite the trial court’s failure to use the phrase “compelling need” when making its determination, a thorough review of the record convinces us that the trial court complied with the requirements of § 54-86g before allowing the minor victim to testify outside of the defendant’s presence.

II

The defendant next claims that the due process clause of the Connecticut constitution requires a trial judge to disqualify himself sua sponte when that judge learns of a defendant’s withdrawn Alford plea. In order to present a state constitutional claim, a party must specifically brief it as such to this court, including an analysis of the following to the extent that they are applicable: (1) the text of the constitutional provision; (2) related Connecticut precedents; (3) persuasive federal precedent; (4) persuasive precedents of other states; (5) historical insight into the intent of the drafters; and (6) economical and sociological considerations. State v. Geisler, 222 Conn. 672, 684-85, 610 A.2d 1225 (1992). In presenting his claim to this court, the defendant has not advanced a separate analysis of any of the six Geisler factors, thereby failing to comply with the briefing requirements for raising such an issue. We therefore decline to review the defendant’s state constitutional claim. See, e.g., State v. Joyce, 229 Conn. 10, 16-17, 639 A.2d 1007 (1994); State v. Birch, 219 Conn. 743, 746 n.4, 594 A.2d 972 (1991).

Ill

The gravamen of the defendant’s final claim is that his waiver of a jury trial was constitutionally deficient because the trial court did not specifically inform him that the judge to whom the case would be tried would likely know of the defendant’s previously withdrawn Alford plea.

To waive his right to a jury trial effectively, the defendant, pursuant to General Statutes § 54-82b (b) and Practice Book § 839, must first be advised of that right at the time he enters his plea. Neither the statute nor the rule, however, specifies the precise content of the advice to be given to a defendant who seeks a nonjury trial. State v. Marino, 190 Conn. 639, 646-47, 462 A.2d 1021 (1983).

Further, the defendant’s waiver must be “knowing and intelligent” as well as voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 237, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); State v. Williams, 205 Conn. 456, 460-61, 534 A.2d 230 (1987). Connecticut courts have incorporated the knowing, intelligent and voluntary standard into a similar definition of waiver; in order to validly waive a constitutional right, a defendant must intentionally relinquish or abandon it. Paulsen v. Manson, 203 Conn. 484, 489, 525 A.2d 1315 (1987). In determining whether this strict standard has been satisfied, this court must examine the totality of the circumstances surrounding the waiver. State v. Williams, supra, 461.

Applying these principles to this case, we note that the record discloses an extensive canvass by the trial court before it allowed the defendant to waive his right to a jury trial. Generally, the trial court informed the defendant of the differences between a court trial and a jury trial and the advantages a jury trial may offer a criminal defendant. Specifically, the trial court apprised the defendant that a judge, as a trier of fact and law, is frequently called on to determine the admissibility of evidence and is then expected to disregard the evidence that he finds to be inadmissible when determining a defendant’s guilt or innocence. Before relinquishing his right, however, the defendant was told to consider the possibility that inadmissible as well as admissible evidence may come before the trier of fact in a bench trial. The court did not accept the defendant’s waiver until it had elicited the information that he had completed one year of college and had fully discussed the election of a court trial with his attorney.

After examining the totality of the circumstances surrounding the defendant’s waiver, we conclude that the defendant knowingly, intelligently, and intentionally relinquished his right to a jury trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53-21 provides: “Anypersonwho wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). A defendant pleading under the Alford doctrine neither admits his guilt nor protests his innocence. Instead, a defendant merely acknowledges that the state has evidence sufficient to obtain a conviction and therefore chooses to plead guilty in order to avoid the imposition of a possibly more serious punishment after trial.

       General Statutes § 54-86g (a) provides: “In any criminal prosecution of an offense involving assault, sexual assault or abuse of a child twelve years of age or younger, the court may, upon motion of the attorney for any party, order that the testimony of the child be taken in a room other than the courtroom in the presence and under the supervision of the trial judge hearing the matter and be televised by closed circuit equipment in the courtroom or recorded for later showing before the court. Only the judge, the defendant, the attorneys for the defendant and for the state, persons necessary to operate the equipment and any person who would contribute to the welfare and well-being of the child may be present in the room with the child during his testimony, except that the court may order the defendant excluded from the room or screened from the sight and hearing of the child only if the state proves, by clear and convincing evidence, that the child would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that a compelling need exists to take the testimony of the child outside the physical presence of the defendant in order to insure the reliability of such testimony. If the defendant is excluded from the room or screened from the sight and hearing of the child, the court shall ensure that the defendant is able to observe and hear the testimony of the child, but that the child cannot see or hear the defendant. The defendant shall be able to consult privately with his attorney at all times during the taking of the testimony. The attorneys and the judge may question the child. If the court orders the testimony of a child to be taken under this subsection, the child shall not be required to testify in court or at the proceeding for which the testimony was taken.”

       The record shows that the trial judge in this case offered to recuse himself on the ground that he had previously learned of the defendant’s withdrawn Alford plea. The defendant, however, expressed no objection to the judge’s presiding over his trial. Because this issue was not properly preserved, we need not determine whether this claim, articulated for the first time on appeal, would result in an ambuscade of the trial court. See State v. Robinson, 227 Conn. 711, 741, 631 A.2d 288 (1993).

       General Statutes § 54-82b (b) provides in pertinent part: “In criminal proceedings the judge shall advise the accused of his right to trial by jury at the time he is put to plea and, if the accused does not then claim a jury, his right thereto shall be deemed waived . . .

       Practice Book § 839 provides in pertinent part: “The defendant in a criminal action may demand a trial by jury of issues which are triable of right by jury. If at the time he is put to plea, he elects a trial by the court, the judicial authority shall advise the defendant of his right to a trial by jury. If the defendant does not then elect a jury trial, his right thereto may be deemed to have been waived.”

       The judge who took the defendant’s waiver of the right to a trial by jury did not preside over the defendant’s court trial.


author: DALY, J.

text:
    STATE OF CONNECTICUT v. CHARLES B. ANGELO
    (13734)
    Landau, Hetman and Daly, Js.
    Argued September 26
    decision released November 21, 1995

      Roger J. Frechette, with whom was Matthew E. Fre-chette, for the appellant (defendant).

      Edward F. Reynolds, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Mary Borden McKeman, assistant attorney general, for the appellee (plaintiff).
   DALY, J.

The plaintiff, state of Connecticut, brought this action in conversion against the defendant, Charles B. Angelo. On cross motions for summary judgment, the trial court found in favor of the state. The defendant appealed. We affirm the judgment of the trial court.

The essential facts from which this controversy arose are not in dispute. The defendant is an attorney authorized to practice law in Connecticut. The defendant was retained by Joseph Fraenza to represent him in a claim for damages resulting from a fall that occurred on or about January 24,1990. Fraenza’s son was a beneficiary of public assistance from the state pursuant to the program to aid families with dependent children administered by the department of social services.

On or about February 26, 1992, the defendant was given written notice of the state’s lien, pursuant to General Statutes (Rev. to 1991) §§ 17-83e and 17-83f (now §§ 17b-93 and 17b-94), against the proceeds of Fraenza’s cause of action. The plaintiffs hen derived from the moneys paid by the state to or on behalf of Fraenza’s son under the aid to dependent children program. See General Statutes (Rev. to 1991) §§ 17-83C and 17-83f. On or about May 6,1992, the defendant received further written notice from the state that the interim amount of the state’s lien was $1011 for the period March 3, 1992, to March 31, 1992. The notice also informed the defendant that he should notify the state upon conclusion of the matter to obtain a final accounting and to satisfy the lien. Fraenza never executed an assignment to the state of any of the proceeds of the personal injury action.

On or about December 16,1992, the defendant settled Fraenza’s negligence action for $18,000. The defendant did not contact the state to determine the current amount due it pursuant to §§ 17-83e and 17-83Í. Instead, on or about December 30, 1992, the defendant forwarded to the plaintiff a check in the amount of $1011, which was the interim figure provided to the defendant in May, 1992. That amount included only the public assistance provided to the defendant’s son during the month of March, 1992. During the period March 3,1992, to August 31, 1992, the state had provided public assistance for the benefit of Fraenza’s son in the total amount of $11,601.75. On the basis of that figure and §§ 17-83e and 17-83f, the state alleged that $4795.81 was then due to the state out of the defendant’s settlement. The state did not cash the defendant’s check because the check did not include the total amount the state claimed was due pursuant to the statute.

In order to recover the full amount it believed to be due and payable, the state commenced this action in conversion against the defendant. The defendant claims, as he did in the trial court, that he is not liable to the state for any amount because §§ 17-83e and 17-83f (now §§ 17b-93 and 17b-94) do not establish any lien on the proceeds, and because Fraenza never executed an assignment of the proceeds to the state. The defendant claims that §§ 17-83e and 17-83f are, therefore, not binding on him as an attorney.

Section 17-83e (a) specifically provides that “[t]he state of Connecticut shall have a lien against property of any kind or interest in any property, estate or claim of any kind of the parents of an aid to dependent children beneficiary . . . .” Section 17-83f (a) provides: “In the case of causes of action ... of a parent of a beneficiary of the aid to families with dependent children program, the claim of the state shall be a lien against the proceeds therefrom in the amount of the assistance paid or fifty per cent of the proceeds received by such beneficiary or such parent afterpayment of all expenses connected with the cause of action, whichever is less .... The proceeds of such causes of action shall be assignable to the state for payment of the amount due under said section 17-83e, irrespective of any other provision of law. ...”

In State v. Blawie, 31 Conn. Sup. 552, 555, 334 A.2d 484 (1974), cert. denied, 167 Conn. 693, 333 A.2d 70 (1975), where the defendant raised similar defenses to those raised by the defendant in this action, the court found: “The language of § 17-83f broadened the rights of the state to causes of action of all beneficiaries and contained the added provision that the state’s claim for reimbursement shall be a lien against the proceeds of the cause of action.” The court in Blawie, in support of its decision, cited McDougald v. Norton, 361 F. Sup. 1325 (D. Conn. 1973), for the proposition that “even in the absence of an assignment as provided for in § 17-83f, this section gives the state a lien against all causes of action belonging to a public assistance beneficiary” or his parent. State v. Blawie, supra, 557. Hence, “[w]ith or without the assignment provision of the statute, the attorney becomes, not a collection agency for the state, but a stakeholder of funds against which conflicting claims are outstanding.” Id., 558.

We agree with the court in Blawie that § 17-83f grants to the department of social services a valid lien on the proceeds of the cause of action in the hands of the defendant and that the action of the defendant in disbursing the funds in disregard of the state’s lien constituted a conversion for which the state is entitled to damages.

Summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book § 384. In this matter, the material facts were not in dispute, and the state is entitled to judgment as a matter of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1991) § 17-83e (a) provides: “If a beneficiary of aid under this chapter has or acquires property of any kind or interest in any property, estate or claim of any land, the state of Connecticut shall have a claim subject to subsections (b) and (c) of this section, which shall have priority over all other unsecured claims and unrecorded encumbrances, against such beneficiary for the full amount paid, subject to the provisions of section 17-83f, to him or in his behalf under said chapter; and, in addition thereto, the parents of an aid to dependent children beneficiary shall be liable to repay, subject to the provisions of section 17-83f, to the state the full amount of any such aid paid to or in behalf of either parent, his spouse, and his child or children. The state of Connecticut shall have a lien against property of any land or interest in any property, estate or claim of any land of the parents of an aid to dependent children beneficiary, in addition and not in substitution of its claim, for amounts owing under any order for support of any court or any family support magistrate, including any arrearage under any such order, provided household goods and other personal property identified in section 52-352b and real property pursuant to section 17-82c, as long as such property is used as a home for the beneficiary, shall be exempt from such lien.”

       General Statutes (Rev. to 1991) § 17-83f (a) provides: “In the case of causes of action of beneficiaries of aid under this chapter, subject to subsections (b) and (c) of section 17-83e, or of a parent of a beneficiary of the aid to families with dependent children program, the claim of the state shall be a lien against the proceeds therefrom in the amount of the assistance paid or fifty per cent of the proceeds received by such beneficiary or such parent after payment of all expenses connected with the cause of action, whichever is less, for repayment under section 17-83e, and shall have priority over all other claims except attorney’s fees for said causes, expenses of suit, costs of hospitalization connected with the cause of action by whomever paid over and above hospital insurance or other such benefits, and, for such period of hospitalization as was not paid for by the state, physicians’ fees for services during any such period as are connected with the cause of action over and above medical insurance or other such benefits; and such claim shall consist of the total assistance repayment for which claim may be made under the provisions of this chapter. The proceeds of such causes of action shall be assignable to the state for payment of the amount due under said section 17-83e, irrespective of any other provision of law. Upon presentation to the attorney for the beneficiary of an assignment of such proceeds executed by the beneficiary or his conservator or guardian, such assignment shall constitute an irrevocable direction to the attorney to pay the commissioner of administrative services in accordance with its terms, except if, after settlement of the cause of action or judgment thereon, the commissioner of administrative services does not inform the attorney for the beneficiary of the amount of lien which is to be paid to the commissioner of administrative services within thirty days of receipt of the written request of such attorney for such information, such attorney may distribute such proceeds to such beneficiary and shall not be liable for any loss the state may sustain thereby.”


author: PER CURIAM.

text:
    WILLIAM J. LOIKA ET AL., COADMINISTRATORS (ESTATE OF CHEYENNE I. LOIKA) v. AETNA CASUALTY AND SURETY COMPANY ET AL.
    (13777)
    (13779)
    Lavery, Heiman and Schaller, Js.
    Argued September 28
    decision released November 21, 1995

      Rodd J. Mantell, with whom, on the brief, was Eugene A. Cooney, for the appellant (named defendant).

      Terence A. Zemetis, with whom, on the brief, was Thomas Flanagan, for the appellant (defendant Allstate Insurance Company).

      Robert P. Dutcher, for the appellees (plaintiffs).
   PER CURIAM.

The defendants, Aetna Casualty and Surety Company (Aetna) and Allstate Insurance Company (Allstate), appeal from the judgment of the trial court awarding the plaintiffs damages under the under-insured motorist provisions of two automobile insurance policies. The defendants appeal claiming that the trial court improperly (1) allowed the plaintiffs to recover underinsured motorist benefits under the Allstate policy in addition to the liability coverage they had received from Allstate, (2) determined the credits and offsets to be applied against such underinsured motorist coverage, and (3) found that Aetna could not claim a credit for sums paid to the plaintiffs on behalf of the tortfeasor.

The trial court found the following facts. On April 6, 1990, Cheyenne I. Loika, the plaintiffs’ fourteen year old daughter, was fatally injured in a motor vehicle accident in the town of Chester. Loika was a passenger in a pickup truck owned by Rose Benedetto and operated by Joel Cote. The accident occurred when Cote veered off the right side of the road, striking two trees and a utility pole. The impact caused Loika to be thrown from the vehicle, and she died as a result of her injuries.

The plaintiffs initially recovered $20,000 under a liability insurance policy issued to Benedetto by the Hartford Casualty and Indemnity Company. Additionally, the plaintiffs received $100,000 from Allstate under the liability provisions of Cote’s policy. Both of those sums were the maximum per person limits under the terms of the respective policies. Allstate also paid a total of $162,992 to four other claimants involved in the accident.

The plaintiffs brought this action to recover additional benefits under the underinsured motorist provisions of their own automobile policy with Aetna, as well as under similar provisions in the Cote policy with Allstate. Both the Aetna policy and the Allstate policy include underinsured motorist coverage totaling $200,000 when stacked. Allstate and Aetna agree that Allstate’s underinsured motorist coverage, if applicable, is primary, and Aetna’s is excess. The parties stipulated that the plaintiffs’ damages were at least $400,000.

The trial court held that Loika was within the class of individuals entitled to underinsured motorist coverage pursuant to § 38a-334-6 (a) of the Regulations of Connecticut State Agencies, and that the applicability of § 38a-334-6 (a) was not displaced by either the express language of the insurance policy or § 38a-334-4 of the Regulations of Connecticut State Agencies. The court found that the amount of the credit due under § 38a-334-6 (d) of the regulations does not include the $162,992 of bodily injury liability benefits paid by Allstate to other individuals involved in the accident. Finally, the trial court held that Allstate should receive a credit of $120,000 against the $200,000 limits on its underinsured coverage, and that Aetna is not entitled to any credit with respect to the $120,000 paid to the plaintiffs.

An examination of the record, briefs and oral arguments persuades us that the judgment of the trial court should be affirmed. The issues raised on appeal were correctly decided in the trial court’s exhaustive memorandum of decision. Loika v. Aetna Casualty & Surety Co., 44 Conn. Sup. 59, 667 A.2d 1308 (1994). We adopt the trial court’s memorandum of decision because it fully resolves all issues on appeal and it would serve no useful purpose to repeat the discussion contained therein. See AFSCME, Council 4, Local 681, AFL-CIO v. West Haven, 234 Conn. 217, 661 A.2d 587 (1995).

The judgment is affirmed.

       Stacking refers to the ability of the insured, when covered by more than one insurance policy, to obtain benefits from a second policy on the same claim when recovery from the first policy alone would be inadequate. Nationwide Ins. Co. v. Gode, 187 Conn. 386, 388 n.2, 446 A.2d 1059 (1982).

       Section 38a-334-6 (a) of the Regulations of Connecticut State Agencies provides: “The insurer shall undertake to pay on behalf of the insured all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily ipjury sustained by the insured caused by an accident involving the uninsured motor vehicle. This coverage shall insure the occupants of every motor vehicle to which the bodily injury liability coverage applies. ‘Uninsured motor vehicle’ includes a motor vehicle insured against liability by an insurer that is or becomes insolvent.”

       Section 38a-334-4 of the Regulations of Connecticut State Agencies provides: “These regulations do not apply to the insurance afforded under any policy: (1) to the extent that the insurance afforded exceeds the limits specified in subsection (a) of § 14-112 of the general statutes and, where applicable, § 38a-365 of the general statutes or (2) if the policy contains an underlying insurance requirement or provides for a retained limit of self-insurance equal to or greater than the limits specified in said subsection (a) of § 14-112 and, where applicable, § 38a-365.”

       Section 38a-334-6 (d) of the Regulations of Connecticut State Agencies provides: “The limit of the insurer’s liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of section 14-112 of the general statutes, except that the policy may provide for the reduction of limits to the extent that damages have been
      “(1) paid by or on behalf of any person responsible for the injury,
      “(2) paid or are payable under any workers’ compensation or disability benefits law, or
      “(3) paid under the policy in settlement of a liability claim. The policy may also provide that any direct indemnity for medical expense paid or payable under the policy or any amount of any basic reparations benefits paid or payable under the policy will reduce the damages which the insured may recover under this coverage and any payment under these coverages shall reduce the company’s obligation under the bodily injury liability coverage to the extent of the payment.”

       The trial court found that Allstate should receive a credit of $100,000, which it paid under the terms of its bodily injury liability coverage, and an additional credit of $20,000 for liability benefits otherwise received by the plaintiffs. By fashioning this result, the court treated Aetna as an excess carrier, which is exactly what it bargained for.


author: HENNESSY, J.

text:
    MARY FREEMAN v. HULL DYE AND PRINT, INC., ET AL.
    (13736)
    Spear, Hennessy and Cretella, Js.
    Argued September 25
    decision released November 21, 1995

      Lindalea P. Ludwick, with whom, on the brief, was David A. Shaw, for the appellant (plaintiff).

      JohnJ. Sheedy, for the appellee (defendant Michigan Mutual Insurance Company).

      Robert C. Pinciaro, with whom, on the brief, was Kevin J. Maher, for the appellee (defendant Chubb Group of Insurance Companies).

      Robert F. Carter and Joram Hirsch filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.
   HENNESSY, J.

This appeal comes before this court on essentially two issues: (1) whether the compensation review board (board) properly dismissed the plaintiffs appeal because she had failed to assert a claim for dependent’s benefits pursuant to General Statutes (Rev. to 1991) § 31-294, and (2) whether the board properly dismissed the plaintiffs appeal because she failed to file a timely appeal to the board pursuant to General Statutes § 31-301 (a). Because the board did not make the necessary factual determinations to resolve the timeliness issue, we remand the case without considering the substantive issue.

The following facts are relevant to this appeal. Mary Freeman (Freeman), widow of Edward Freeman, claimed dependent benefits as a result of her husband’s work related death from cancer. Edward Freeman (decedent) was diagnosed with cancer on November 16,1986, and filed atimely claim for workers’ compensation benefits. He died on April 4, 1989.

Freeman asserts that she is due dependent benefits as a result of the decedent’s death. On September 14, 1992, the workers’ compensation commissioner dismissed Freeman’s claim for dependent’s benefits, finding that Freeman had neither asserted a claim nor requested a hearing on her own behalf within the time parameters set forth in § 31-294 (a). Freeman filed an appeal with the board on September 25,1992. The board dismissed her appeal on two grounds: (1) that a spouse cannot rely on a claim filed by a decedent to satisfy the notice requirements of § 31-294 (a); and (2) that Freeman did not timely file her appeal with the board pursuant to § 31-301 (a).

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 shall be final and may be enforced in the same manner as a judgment in the superior court. ” This court recently held that the ten day appeal period set forth in § 31-301 (a) “begins to run on the day on which the party wanting to appeal is sent meaningful notice of the commissioner’s decision.” Conaci v. Hartford Hospital, 36 Conn. App. 298, 303, 650 A.2d 613 (1994). In Conaci, the appellants challenged the board’s finding that their appeal was jurisdictionally defective because the appellants had allegedly failed to file their appeal with the board within the time prescribed by § 31-301 (a). We remanded Conaci for a determination of the date on which notice of the commissioner’s decision was sent to the parties and, based on that finding, a proper assessment of whether the appeal was timely.

Once the board determines that an appeal is untimely it no longer has jurisdiction to address any remaining substantive claim. Chieppo v. Robert E. McMichael, Inc., 169 Conn. 646, 648, 363 A.2d 1085 (1975); Chzris-lonk v. New York, N. H. & H. R. Co., 101 Conn. 356, 358, 125 A. 874 (1924) (action dismissing untimely workers’ compensation appeal); Wheeler v. New York, N. H. & H. R. Co., 71 Conn. 270, 282, 41 A. 808 (1898) (cited in Chzrislonk'). In Chieppo, the appellant erroneously brought its appeal from a commissioner’s award to the Superior Court rather than the Court of Common Pleas resulting in a late filing of the appeal. Chieppo v. Robert E. McMichael, Inc., supra, 648. As a result of the error, the Court of Common Pleas dismissed the appeal for lack of jurisdiction. Id. Our Supreme Court affirmed that decision. Id., 654.

The present case is analogous to Conaci because in both cases the board dismissed the appeal on the basis of an improper determination of the timeliness issue. While the board considered the substantive issues in this case, it is improper for us to review those issues because the dismissal on timeliness grounds stripped the board of the authority to address the substantive issue ab initio. Id., 648; Chzrislonk v. New York, N. H. & H. R. Co., supra, 101 Conn. 358. We hold, therefore, that the board must determine the date on which notice of the commissioner’s decision was sent to the parties to assess properly whether the plaintiffs appeal was timely. See Conaci v. Hartford Hospital, supra, 36 Conn. App. 304.

The decision of the compensation review board is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1991) § 31-294 provides in pertinent part: “(a) .... No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year of the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury, provided, if death has resulted within two years from the date of the accident or the first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation within such two-year period or within one year from the date of death, whichever is later. . . .
      “(b) If there has been a hearing or a written request for a hearing or an assignment for a hearing within said one-year period from the date of the accident or within said three-year period from the first manifestation of a symptom of the occupational disease, as defined herein as the case may be, or if a voluntary agreement has been submitted within the applicable period, or if within the applicable period an employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care as hereafter provided in this section, no want of such notice of claim shall be a bar to the maintenance of proceedings and in no case shall any defect or inaccuracy of such notice of claim be a bar to the maintenance of proceedings unless the employer shows that he was ignorant of the facts concerning such personal injury and was prejudiced by the defect or inaccuracy of such notice.”

       General Statutes § 31-301 (a) provides: “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 by filing in the office of the commissioner from which the award or the decision on a motion originated an appeal petition and live copies thereof. The commissioner within three days thereafter shall mail the petition and three copies thereof to the chief of the Compensation Review Board and a copy thereof to the adverse party or parties.”

       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.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. MARK STRICKLAND
    (13962)
    Dupont, C. J., and Foti and Freedman, Js.
    Argued September 18
    decision released November 28, 1995

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

      Lawrence J. Tytla, assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (state).
   FOTI, J.

The defendant appeals from the judgment of the trial court revoking his probation, pursuant to General Statutes § 53a-32, after the trial court concluded that the defendant had violated the terms of his probation. The defendant claims that the trial court improperly (1) denied his pro se motion to dismiss the violation of probation charges, (2) found the defendant in violation of probation, and (3) permitted him to exercise his right to waive counsel and to represent himself with standby counsel. We affirm the judgment of the trial court.

In August, 1985, the defendant pleaded guilty to a count of sexual assault in the first degree on each of two pending cases. On September 23, 1985, the court, Hendel, J., sentenced the defendant to a term of twenty years incarceration with execution suspended after eight years, followed by five years of probation. On July 27, 1990, due to credits earned, the commissioner of correction (commissioner) released the defendant from custody. The defendant’s five year probationary period commenced on that date. On August 7,1990, the defendant reviewed the conditions of his probation, including the requirement that he refrain from violating the criminal laws of this state, and signed a form outlining those conditions. General Statutes § 53a-30 (a) (7).

On February 28, 1992, the defendant was arrested and charged on two separate informations with one count of burglary in the third degree and one count of possession of narcotics. The defendant was incarcerated pending disposition of those charges. On July 27, 1992, the defendant pleaded guilty to both charges and admitted that he violated his 1985 imposed probation, pursuant to General Statutes § 53a-32. The court, Stanley, J., sentenced the defendant to consecutive imprisonment terms of three years for the burglary and two years for possession of narcotics, a total effective sentence of five years. The court did not impose additional punishment for the defendant’s violation of his probation. Instead, the court determined that the defendant was in his second year of the five year probationary period imposed in 1985, set to expire in 1995, and stated that “[h]e is to remain on probation once he is released under the original terms and conditions.”

On March 2, 1993, after serving approximately thirteen months of the five year sentence ordered on July 27, 1992, the defendant was released to the Fellowship House in Groton under the provisions of the supervised home release program. As a matter of law, a prisoner who is released from incarceration to the supervised home release program remains subject to the supervision of the department of correction and remains in its legal custody as if he were incarcerated. Asherman v. Meachum, 213 Conn. 38, 48, 566 A.2d 663 (1989).

At some time during the month of October, 1993, the defendant was arrested and charged with burglary in the third degree, possession of burglary tools and larceny in the sixth degree. This event caused the defendant to be removed from the supervised home release program and returned to incarceration. On October 25,1993, the defendant was brought before the court in New London to be arraigned on the new charges. At some point during or after the arraignment, as the sheriff escorted the defendant from the courtroom toward the lockup area, the defendant broke from the custody of the sheriffs and attempted to escape. The sheriffs apprehended the defendant before he reached the backdoor. Subsequent to his presentment on October 25, 1993, the defendant was held at the Radgowski Correctional Cen-terinMontville. On November 17,1993, the correctional facility conducted a formal count of inmates and determined that the defendant had escaped. On November 24,1993, uniformed police officers captured the defendant in Sprague, after he resisted their efforts to take him into custody. The officers conducted a search, incident to the arrest, and found in the defendant’s possession a set of car keys that belonged to an automobile found in the vicinity of the defendant’s capture. The defendant acknowledged stealing the automobile from a driveway in New London shortly after his escape from prison. The defendant also admitted to altering the license plate on the automobile.

As a result of these incidents, the defendant was arrested on a warrant charging him with violating the probation imposed in 1985, which had commenced on July 27, 1990. On August 1, 1994, prior to the start of a violation of probation hearing, the defendant made a motion to dismiss the violation of probation charge. The court, Parker, J., denied the defendant’s motion. The revocation hearing proceeded on August 1 and 3, 1994, and, on the latter date, the court found the defendant to be in violation of his probation. On August 8, 1994, the court sentenced the defendant to twelve years, the suspended portion of the defendant’s original sentence ordered in September, 1985.

I

The defendant first claims that the trial court improperly denied his pro se motion to dismiss the violation of probation charges. The defendant predicated his motion on the argument that, as a matter of law, an individual cannot be simultaneously in the custody of the commissioner of correction and on probation. In presenting his motion, the defendant argued that at the time of the alleged underlying offenses set forth in the long form information, i.e., during the months of October and November, 1993, he remained in the custody of the commissioner by virtue of his retention in the supervised home release program, which he entered in March of that year. The defendant maintained that the commissioner’s custodial authority over him during that time period precluded the defendant from simultaneously completing the five year probationary period ordered in September, 1985. The defendant argued, therefore, that because he was not on probation, the court could not find him to be in violation of probation. As authority for his claim, the defendant relied on State v. Deptula, 34 Conn. App. 1, 639 A.2d 1049 (1994).

In denying the defendant’s motion to dismiss, the court concluded that “[t]he probation ordered in 1985, which began on July 27, 1990, was not interrupted by his being sentenced and placed in custody on July 27, 1992. The defendant’s contention that he could not be, at the same time, in custody on one sentence (that imposed on July 27, 1992) and also be on probation on another (that imposed in 1985) is unfounded. Deptula, does not hold otherwise.” We agree. In Deptula, we held that a violation of probation may not be predicated on an act that took place during the custodial portion of a sentence, and prior to the commencement of the probationary period. In the present case, the probationary period clearly commenced on July 27, 1990. The sole issue for our determination, unlike the issue presented in Deptula, is whether the defendant’s probationary period was interrupted. The defendant’s argument that he could not be concurrently in custody and on probation is unavailing under the particular circumstances in this case.

On appeal, the defendant claims that the trial court improperly denied his motion to dismiss because on July 27,1992, the court, Stanley, J., modified the original term of probation by suspending the defendant’s probation while he served his sentence on the other two dockets. In attempting to substantiate that the trial court suspended his probation, the defendant recites the court’s order that the defendant “is to remain on probation once he is released under the original terms and conditions.” The defendant argues that the court’s order is unambiguous and a literal reading of the court’s sentencing reveals that the court did not state that the defendant would continue on probation under the original terms and conditions. The defendant maintains that an examination of the exact wording used by the court in sentencing the defendant leads to the singular, logical conclusion that the commencement of his probation could be triggered only by his release from incarceration. Because the defendant remained within the jurisdiction of the commissioner during the months of October and November, 1993, the defendant concludes that his probation was never reactivated.

We decline to adopt the defendant’s forced, literal interpretation of the court’s order on July 27, 1992. The court’s omission of the word “continued,” stressed as determinative by the defendant, loses significance when we consider the court’s omission of the words “suspended” and “tolled.” Moreover, a thorough review of the entire July, 1992 sentencing proceeding before Judge Stanley reveals that all of the parties concerned clearly articulated and comprehended that the defendant’s probation would be continued during his five year incarceration period. The transcript of the sentencing proceedings discloses that the state’s attorney specifically recommended that the defendant be continued on probation during his incarceration, and the defendant’s attorney explicitly agreed to that recommendation. The court, seeking to ascertain whether the defendant fully understood the agreed upon recommendation, asked the defendant whether he comprehended that his sentence was “[f]ive years to do, and being continued on probation, same terms and conditions?” (Emphasis added.) The defendant responded affirmatively. It is clear from the transcript that the defendant’s emphasis on the literal meaning of Judge Stanley’s order, taken out of context from the entire proceeding, is misplaced. The record demonstrates the clear intent and the understanding of the parties involved, including the defendant, that his probation be continued.

A review of the pertinent statutes serves to further refute the defendant’s contention that the trial court acted to suspend his probation. “Probation is the product of statute. See General Statutes § 53a-28 et seq.” State v. Smith, 207 Conn. 152, 167, 540 A.2d 679 (1988). General Statutes § 53a-31 (a) provides that a period of probation commences on the day it is imposed, except that, where it is preceded by a sentence of imprisonment with execution suspended after a period of imprisonment set by the court, it commences on the day the defendant is released from such imprisonment. The statute is devoid of any mention of a court’s power to suspend or toll a period of probation once the probationary period has begun. General Statutes § 53a-32 (b) allows the court, following the determination of a violation of probation, to continue or revoke the sentence of probation or to modify or enlarge the conditions. This statute clearly delineates the list of permissible adjustments that a trial court is authorized to impose when amending a defendant’s probation. Upon a finding of a violation, the statute affords a trial court only two choices: either to continue or to revoke the probation. Conspicuously absent from this legislative list is the power to suspend or toll a probationary period. The statute’s use of the words “modify” and “enlarge” speaks exclusively to the conditions of the probation. No statutory authority exists to extend a period of probation. State v. Guckian, 27 Conn. App. 225, 246-47, 605 A.2d 874 (1992), aff'd, 226 Conn. 191, 627 A.2d 407 (1993). We also find no statutory authority to suspend probation once a violation of probation has been determined.

On July 27, 1992, the defendant admitted to being in violation of his probation. Pursuant to § 53a-32 (b) and the plea agreement, Judge Stanley chose to continue rather than to revoke the defendant’s probation. The defendant’s probationary period commenced on July 27, 1990, by operation of law, and would continue for five year’s, terminating in 1995. The trial court, Parker, J., properly determined that the court, Stanley, J., on July 27, 1992, “could not mean that the 1985 probation was to be suspended during the custodial portion of the five year sentence just imposed .... There is no statute which permits suspension of probation for a period of time with it to recommence after a period of suspension.”

Given the lack of statutory authority to suspend or toll a probationary period, it is difficult, if not impossible, to surmise, as the defendant does, that Judge Stanley unilaterally took the unprecedented action of suspending the defendant’s probation. Under the circumstances of this case, as well as the record in the trial court, there is no evidence before this court to support the notion that Judge Stanley ignored the law, or blatantly disregarded it.

The defendant argues that in July, 1992, pursuant to General Statutes § 53a-30 (c), the court acted within its supervisory powers in suspending the defendant’s probationary term until he was released from serving the five year term imposed. We find the defendant’s inteipretation of § 53a-30 (c) to be distorted and contrived. The language of the statute is straightforward and does not confer supervisory powers on the court to suspend a term of probation. General Statutes § 53a-30 pertains to the authority of the court to set the conditions and requirements of probation and conditional discharge. Section 53a-30 (c) specifically addresses the court’s power, after a hearing and for good cause shown, to modify or enlarge the conditions of probation, or to extend a probationary period. This section of the statute is inapplicable to the facts of this case. At the July, 1992 sentencing hearing, the defendant pleaded guilty to the violation of probation charge. The issue posed by the defendant centers on what action the court took as a result of this violation, and not on the conditions of his probation. The defendant has raised no issues concerning the conditions of his probation. General Statutes § 53a-32, entitled: “Violation of probation or conditional discharge: Arrest; procedure,” is the relevant statute for a proper resolution of this case. The defendant’s reliance on § 53a-30 (c) for the proposition that the trial court suspended his probation is without merit.

The defendant refers to General Statutes § 53a-31 (b) as further support for his assertion that the court suspended his probation. The defendant argues that § 53a-31 (b) allows for an interruption of the probationary term until the court imposes its sentence. The defendant claims that the court did not enlarge the original sentence, but rather suspended the uncompleted portion of the defendant’s remaining probationary period until after his release.

A violation brought pursuant to § 53a-32 interrupts the period of the sentence as of the date of the issuance of the warrant or notice to appear only until a final determination as to the violation has been made by the court. Once the trial court determined a violation of probation on July 27,1992, there was no statutory authorization for interruption of the probationary period.

On the basis of our review of the July 27,1992 sentencing proceeding and the pertinent statutes, we conclude that the trial court properly denied the defendant’s motion to dismiss.

II

The defendant next claims that the evidence was insufficient for the trial court to find the defendant in violation of his probation. We need not, at this time, discuss our standard of review or the standard of proof applicable to a finding of a violation of probation. The parties agree, as do we from our review of the record, that the only true contested issue before us is whether the trial court properly determined that the defendant was actually on probation during the months of October and November, 1993, when he committed the crimes on which the alleged violation was based. The record, as discussed in part I, leads us to conclude that the evidence presented was sufficient to establish that the defendant was on probation during that period of time, and that he violated that probation.

III

The defendant claims that the trial court improperly allowed him to waive his right to counsel and to represent himself with standby counsel. Certain additional facts are necessary for a proper resolution of this issue.

The defendant was represented by a public defender. On June 17, 1994, the defendant renewed his motion to dismiss the public defender and to allow the defendant to represent himself pro se. The court denied the motion.

On August 1, 1994, prior to the start of the hearings on the motion to dismiss the information and the violation of probation charge, the defendant requested that he be allowed to represent himself. The defendant based this request, as he based his previous two requests to represent himself, on his disagreement with the public defender regarding whether he was on probation during the months of October and November, 1993, and, hence, subject to charges of violation of probation. Judge Parker read to the defendant § 961 of the rules of practice concerning waiver of the right to counsel and proceeded to conduct the four-pronged examination required by that rule. After a comprehensive canvassing of the defendant, the trial court concluded that each of the four conditions required by § 961 were satisfied and, therefore, granted the defendant’s motion to represent himself. The court directed that the public defender stay in attendance and be available for consultation if the court deemed his assistance necessary. The court then heard the defendant’s arguments in favor of his motion to dismiss the violation of probation charges. Following the denial of the defendant’s pro se motion, the court conducted an evidentiary hearing and found the defendant to be in violation of his probation. The court then granted the defendant’s request to allow the public defender to resume his duties as counsel for purposes of the sentencing proceeding.

A criminal defendant has the right to appear pro se in a state criminal trial when he voluntarily and intelligently elects to do so, and has a constitutional right to represent himself at a violation of probation hearing upon an effective waiver of the right to the assistance of counsel. State v. Smith, 18 Conn. App. 368, 373, 558 A.2d 257 (1989). “When a defendant is deciding whether to appear pro se or with a lawyer, it is vital for the trial court to satisfy itself that the defendant, if he or she chooses to appear pro se, is fully aware of the risks involved and makes the choice knowingly.” Id.; see also State v. Gethers, 197 Conn. 369, 376, 497 A.2d 408 (1985); State v. Varricchio, 10 Conn. App. 265, 268, 522 A.2d 843 (1987). “Our role as a reviewing court is to determine whether at any point in the proceedings the defendant effectively waived his right to counsel.” State v. Varricchio, supra, 269.

The defendant argues that the second and third inquiries required by § 961 did not yield responses from him that satisfied the requirements for a proper waiver of counsel. With respect to § 961 (2), the defendant asserts that he was not trained in the law, had received his general equivalency diploma while incarcerated, and lacked the intelligence and the capacity to make an informed choice. Regarding § 961 (3), the defendant claims that while he may have had some understanding of the nature of the motion to dismiss proceedings, he lacked comprehension of what a violation of probation proceeding entailed. Moreover, the defendant states that the court failed entirely to present to him the fourth query required by § 961. He claims that the trial court relied on the public defender’s statement that he had informed the defendant of the dangers of self-representation, rather than the court’s being assured through its own direct inquiry of the defendant that he had been so advised.

Our review of the record leads us to conclude that the trial court substantially complied with the provisions of § 961. The record also amply demonstrates that the court properly determined that each of the four requirements of § 961 was met, including that the defendant possessed the intelligence and capacity to appreciate the consequences of the decision to represent himself, and that he comprehended the nature of the charges and proceedings and the dangers and disadvantages associated with self-representation. Moreover, the trial court insisted that standby counsel be present during all proceedings and be prepared to assist and take over if necessary. The defendant was aware that he could avail himself of the assistance of counsel, and the record discloses that he in fact did freely discuss with, and receive assistance from, standby counsel.

The judgment is affirmed.

In this opinion the other judges concurred.

       Subsequently, a long form information was filed setting forth the following events: the defendant’s attempted escape from the courtroom, the defendant’s escape from prison, the defendant’s wrongful appropriation of an automobile and the defendant’s resistance of arrest. The information alleged each of these incidents to be a violation of the standard condition of probation that the defendant, while on probation, refrain from violating the criminal laws of this state. General Statutes § 53a-30 (a) (7).

       The defendant’s first pro se motion to dismiss the violation of probation charge was denied after a hearing by Purt,ill, J., on June 17, 1994. Subsequently, Judge Purtill recused himself because he had signed the violation of probation arrest warrant. Judge Parker indicated that he would disregard Purtill’s denial and rehear the motion.

       General Statutes § 53a-32 (b) provides: “If such violation is established, the court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation should be ordered, except upon consideration of the whole record and unless such violation is established by rehable and probative evidence.”

       General Statutes § 53a-31 (b) provides: “Issuance of a warrant or notice to appear for violation pursuant to section 53a-32, shall interrupt the period of the sentence as of the date of such issuance until a final determination as to the violation has been made by the court.”

       See footnote 2.

       Practice Book § 961 provides: “A defendant shall be permitted to waive his right to counsel and shall be permitted to represent himself at any stage of the proceedings, either prior to or following the appointment of counsel. A waiver will be accepted only after the judicial authority makes a thorough inquiry and is satisfied that the defendant:
      “(1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;
      “(2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent himself;
      “(3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and
      “(4) Has been made aware of the dangers and disadvantages of self-representation.”