author: Lavery, J.

text:
    Patrick R. Gil v. Inland Wetlands and Watercourses Agency of the Town of Greenwich et al.
    (8418)
    Foti, Lavery and Cretella, Js.

      Argued May 11
    decision released September 25, 1990

      JohnH. Reilly, assistant town attorney, for the appellant (named defendant).

      Patrick R. Gil, pro se, the appellee (plaintiff).
   Lavery, J.

This is an appeal from the trial court’s finding that the denial by the defendant inland wetlands and watercourses agency of Greenwich of the plaintiff’s application for a permit to construct a residence with a driveway and septic system in a wetlands constituted a taking of the plaintiff’s property. The defendant claims that the trial court (1) should have given preclusive effect to earlier court rulings regarding the taking issue, (2) should not have relieved the plaintiff of the burden of showing the unavailability of alternate uses of the property, (3) in applying the balancing test in the taking context, failed to consider adequately the public benefit to be derived from the defendant’s denial of the plaintiff’s application, and (4) in its application of the balancing test, incorrectly measured the claimed diminution in value of the plaintiff’s property relative to its highest and best use, that of a residential building lot. We affirm the judgment of the trial court.

The following facts were found by the trial court, and are pertinent to the confiscation issue, which is the basis of all of the defendant’s claims on appeal.

The plaintiff purchased the 3.36 acre nonconforming lot in 1982. The lot is a legal nonconforming lot in a four acre zone. When the plaintiff purchased the property, and at all subsequent times, the defendant has been the inland wetlands and watercourses regulatory agency in the town of Greenwich and has promulgated regulations for that purpose. Although the property was not included on the town wetlands map at the time the plaintiff purchased it, 90 to 95 percent of the land in the 3.36 acre lot contains inland wetlands soils, and most of the nonwetlands portion of the property is inaccessible from the side of the property closest to Bed-ford Road, which provides access to the lot.

Shortly after purchasing the property, the plaintiff filed an application with the agency to build a single-family residence, driveway and septic system on the property. This application was denied and the denial was appealed to the Superior Court. On November 3, 1987, the appeal was dismissed. The trial court found that the agency’s decision was supported by substantial evidence in the record and concluded that the denial of one application did not amount to an unconstitutional taking of the property without compensation. An appeal of that decision to this court was unsuccessful. Gil v. Inland Wetlands & Watercourses Agency, 19 Conn. App. 801, 560 A.2d 992, cert. denied, 212 Conn. 818, 565 A.2d 535 (1989).

In 1984, the plaintiff filed a second application with the defendant for a permit to construct a single-family residence, driveway and septic system; the second application contained changes from the first application. The defendant denied the application as incomplete and made no decision on the merits. No appeal was taken from the denial of the second application. A third application was filed in August, 1985. Although there were no substantial changes in the plan from the first application, it was different in that it proposed a less extensive infringement upon the wetlands areas of the lot. The application proposed placing fill for a septic system on one corner of the property and surrounding the septic system with a curtain drain and proposed to replant some previously cleared land to create an improved wetlands area. The third application of the plaintiff was denied by the defendant and an appeal was taken to the Superior Court, which dismissed the appeal for reasons other than confiscation. A subsequent appeal to this court was withdrawn.

On December 24, 1987, the plaintiff filed his fourth application to the agency for a permit to construct a single-family residence, driveway and septic system on the lot. This plan differed from the previous applications in that it reduced the footprint of the house from 2100 square feet to 1800 square feet and relocated the house twenty-two feet to the east, away from a wetter portion of the property. The septic system location was also changed, moving it thirty feet away from the wetland portion of the property. By moving the house to the east, the length of the driveway was significantly shortened, reducing disturbance of wetland areas to less than three-fourths of an acre. The subject property is a “flag lot” and there is only one location where the driveway can enter the property. The new plan also proposed to create an open or pastureland area in previously disturbed areas adjacent to the residence on the south side of the lot. Whereas the third application had proposed that 1.5 acres of the 3.36 acre lot would remain as permanent open space; the fourth plan increased the area that would be permanently restricted from development. After a public hearing at which numerous expert witnesses testified, the application was denied by the agency on August 22, 1988, in a memorandum in which it made numerous findings.

The plaintiff appealed the denial to the Superior Court, where the issue of confiscation was tried de novo to the trial court. The trial court gave the parties the opportunity to present additional evidence on the taking issue. The parties did not do so but, rather, relied on documents already present in the record, including the appraisals, which the trial court found “dealt with the related issue of alternate uses available to the property owner.” The trial court, in a scholarly and detailed decision, rendered judgment sustaining the appeal, finding an unlawful taking of property without just compensation. We affirm that judgment.

I

The defendant’s first claim is that the trial court failed to give preclusive effect to earlier court rulings regarding the taking issue. The defendant claims that the trial court, in finding that the application was the fourth alternative development proposal submitted by the applicant, ignored both Superior and Appellate Court decisions regarding earlier applications submitted by the plaintiff as well as a specific finding of the defendant regarding the identity of this application with earlier applications. We reject this claim.

The issue of whether there has been a taking or a practical confiscation is a fact bound determination that must be made on a case by case basis. Dooley v. Town Plan & Zoning Commission, 151 Conn. 304, 308-309, 197 A.2d 770 (1964). Where there has been a material change in circumstances, an administrative board is not precluded from reversing a previous decision. Bright v. Zoning Board of Appeals, 149 Conn. 698, 705, 183 A.2d 603 (1962). Because the taking decision depends heavily on the specifics of the applicant’s proposed use of the land, differences between a prior and present application should be viewed as significant if they would have any bearing on the issue. Here, the plaintiff’s fourth application presented a changed factual situation for the defendant’s consideration, and presented an issue of fact to the trial court that had not been present in the previous litigation. The trial court was therefore not precluded from reaching it. See Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392, 546 A.2d 284 (1988), aff'd, 211 Conn. 67, 557 A.2d 540 (1989).

II

The defendant next claims that the trial court failed to hold the plaintiff to his burden of showing the unavailability of alternate uses of the property. The defendant argues that the plaintiff had the burden of proving the allegation made in the complaint that the defendant’s decision effectively left the plaintiff with no reasonable alternate uses.

We agree that the plaintiff had this burden. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 553 n.18, 525 A.2d 940 (1987). We conclude, however, that the plaintiff successfully met this burden.

The defendant’s claim essentially challenges the sufficiency of the evidence underlying the trial court’s findings on the unavailability of reasonable alternate uses. Those findings will be upheld unless we find that they are unsupported by the evidence or are clearly erroneous. Sink v. Meadow Wood Country Estates, Inc., 18 Conn. App. 569, 574, 559 A.2d 725 (1989); Harris Calorific Sales Co. v. Manifold Systems, Inc., 18 Conn. App. 559, 563, 559 A.2d 241 (1989).

Michael Gold, an appraiser employed by and appearing on behalf of the defendant, testified at the hearing that two alternative uses for the property existed; first, that the land be sold to an abutting property owner, and, second, that the property would be usable if it could be augmented through the purchase of adjoining property and the redrawing of the internal lot lines. A member of the defendant agency also suggested that the plaintiff could give the property to a conservation group and take a tax deduction.

At the hearing, the plaintiff presented the testimony of Peter Trefney, a real estate appraiser. Trefney testified that the lot had no economic value if it could not be developed, and that the suggestion that adjacent property be purchased and the lots reconfigured was not feasible. He also testified that, because of the physical characteristics of the property and the minimum lot size required under the zoning regulations, the sale of the plaintiff’s lot to any adjoining owner would not create another building lot, and thus the only value of the property to adjoining owners would be as open space. The trial court, reviewing the testimony taken at the hearing, found, within its discretion, that the plaintiffs witness was more credible than the defendant’s witness.

The trial court is the sole arbiter of the credibility of witnesses. Rodziewicz v. Giguere, 5 Conn. App. 293, 295, 497 A.2d 1025 (1985). Where, as here, the record before the court presented conflicting testimony on the existence of alternative reasonable uses for the property, its finding, based on the credibility of witnesses, cannot be disturbed. Zapolsky v. Sacks, 191 Conn. 194, 201, 464 A.2d 30 (1983).

The trial court’s finding is reasonably supported by the evidence.

Ill

The defendant next claims that the trial court failed to consider adequately the public benefit to be derived from the defendant’s denial of the plaintiff’s application. We disagree.

In determining whether a taking has occurred on the basis of the particular facts of a case, the trial court weighs the degree to which the public benefits from enforcement of an inland wetlands regulation against the financial burden imposed upon the applicant by the enforcement of the regulation. It also considers the availability of realistic alternative uses of the property. This balancing test was promulgated by our Supreme Court in Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 151, 365 A.2d 387 (1976). The trial court, employing this test, concluded that a taking had occurred. We agree.

We note at the outset that, as discussed in part II, supra, the trial court found that the defendant’s enforcement of the regulation left the plaintiff with no reasonable alternate uses for the property. With regard to the financial impact on the plaintiff of the enforcement of the regulation, the plaintiffs appraiser, Trefney, testified that the enforcement of the regulation effectively destroyed the economic value of the plaintiff’s property. Trefney estimated the value of the property with a permit at approximately $280,000. He also believed that without the permit the land had virtually no market value, because it would lack the two qualities that create value for real estate, namely, utility and desirability. The defendant’s appraiser, Gold, estimated the value of the property without the permit at approximately $60,000. This estimate, however, was contingent upon the feasibility of his suggested alternate uses. Since the trial court rejected his proposed alternate uses, his estimate of the market value for the property was also implicitly rejected.

With regard to the public benefit to be gained from the enforcement of the regulation, the trial court reviewed the testimony of the numerous expert witnesses who testified in support of the plaintiff’s application at the defendant agency’s public hearing. John Risoli and John Giancola, civil engineers, testified that the approval of the application would not cause any problem due to sedimentation, erosion, water filtration, or water quality. Richard Benoit, an environmental scientist, testified that the installation of the septic system would have no adverse effect on the adjoining ecosystem. Donald Ferlow, another environmental scientist, testified that the plan minimized any potential adverse effect on the wetlands and that there were no superior alternatives to the plaintiff’s proposal. William Mackail, the chief sanitarian for the town of Greenwich, testified that the proposal would have no adverse effect on the wetlands. There was also testimony to the effect that the Greenwich health department had issued a septic permit to the plaintiff, and that the area proposed to be built upon was not on the original wetlands map.

The defendant produced the testimony of Gold, the appraiser, and Michael Aurelia, a geologist. Aurelia expressed concern that (1) the proposed development would eliminate 4 percent of an isolated forty-three acre wetlands, (2) the installation of a septic system would be difficult, (3) the plaintiffs application did not address the loss of the wetlands pollution filtration function that was important for a watershed to a drinking water supply, and (4) the application did not address the related concern that the swamp was claimed to lead to a tributary of a drinking water supply. Aurelia did not claim, however, that the development plan and septic system would pollute the wetlands.

The trial court concluded that “based on the evidence presented . . . the court does not find any significant public injury if a three bedroom one-family residence septic system and driveway are built on 0.75 acres of a 3.36 acre lot according to the plan .... When the public interest is balanced against the private interest, consisting of the virtual total loss of value to the plaintiff . . . the [defendant’s] action in denying the application was a taking under the balancing test . . . .”

The fact bound determination involved in a taking issue is one particularly within the province of the trial court as finder of fact. See Dooley v. Town Plan & Zoning Commission, supra, 308-309. Where, as here, there is ample evidence supporting the trial court’s careful and considered weighing of the issues, the trial court’s decision must stand. Chevron Oil Co. v. Zoning Board of Appeals, supra; see also Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 551, 552 A.2d 796 (1989).

IV

Even if we were to disagree with the trial court’s conclusion that, under the balancing test, the enforcement of the regulation constituted a taking, the trial court’s judgment would nevertheless have to be upheld because the court also determined that the enforcement amounted to a practical confiscation of the property, and the defendant has not challenged this conclusion on appeal. The issue not raised is thus deemed to be abandoned. Martin v. Board of Education, 2 Conn. App. 7,11, 475 A.2d 333 (1984). Nevertheless, because of the importance of this issue, we will briefly review the trial court’s decision.

“[A]n ordinance which permanently restricts the use of property for any reasonable purpose goes beyond permissible regulation and amounts to . . . ‘practical confiscation’ . . . .” (Emphasis added.) Brecciaroli v. Commissioner of Environmental Protection, 168 Conn. 349, 355, 362 A.2d 948 (1975); Dooley v. Town Plan & Zoning Commission, supra, 311-12. The trial court found that the only reasonable use that the plaintiff could make of his land was to build a residence. See part II, supra. The court further found that the wetlands regulations precluded the construction of the proposed 1800 square foot house even on the portion of the property farthest from the wetlands. The trial court reasonably concluded, therefore, that the regulation, as applied to this lot, restricted its use for any reasonable purpose, and thus constituted a practical confiscation.

V

The defendant’s last claim is that the trial court incorrectly measured the claimed diminution in value of the plaintiff’s property relative to its highest and best use, namely that of a residential building lot. The defendant, citing Just v. Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761 (1972), argues that the injury to or loss of value of the property must be measured as the loss resulting from the application of the law to the property in its natural state, not as applied to the property as the applicant might want to change it. The trial court, in this view, should have measured the value of the plaintiffs lot as it has been affected by the regulation against the value of the lot in its natural state.

We reject the defendant’s.claim. The value of this property is linked to its utility as a buildable lot — that is, as a lot that may be put to reasonable use. The plaintiff purchased the property possessing that value. That value has been destroyed by the application of the regulation in question. We refuse to follow Just v. Marinette County, supra, because that case dictates that the plaintiff’s loss of that value is irrelevant to the court’s determination of the taking issue.

While it is true that in regulating land use under the police power, the maximum possible enrichment of a particular landowner is not a controlling purpose. Goldblatt v. Hempstead, 369 U.S. 590, 592-93, 82 S. Ct. 987, 8 L. Ed. 2d 130 (1962); Figarsky v. Historic District Commission, 171 Conn. 198, 211, 368 A.2d 163.(1976). Nonetheless, where the landowner proposes to put his property to a reasonable use, such as the construction of a single-family home in an area zoned for such use, the relevant comparison is between the property in such a buildable state and the property as regulated. See Chevron Oil Co. v. Zoning Board of Appeals, supra, 152.

The judgment is affirmed.

In this opinion the other judges concurred.

       The commissioner of environmental protection was a party at the trial level but failed to file a timely appeal and is not a party to this appeal. We will therefore refer to the inland wetlands and watercourses agency of Greenwich as the defendant.

       The memorandum of the defendant stated the following:
      “(1) The purpose of the proposed activities is to construct a single family residence.
      “(2) An ecological evaluation of the affected inland wetlands and watercourse area is contained in the Agency staff report, field investigations and data sheets.
      “(3) The Agency took note of its earlier findings associated with the decisions on Applications # 83-114, 83-204 and 85-118. The Agency adopted the statement of reasons by member William E. Hegarty, dated July 22, 1988.
      “(4) The Agency adopted the staff comments in a supplemental staff report, dated July 8, 1988.
      “(5) There are no significant changes associated with the proposed regulated activities in this application when compared to earlier applications.
      “(6) After reviewing all of the documents submitted by Mr. Gil on July 25, in response to the supplemental staff report of July 8, 1988, and evaluating feasible and prudential alternatives, it was concluded that the applicant has not evaluated all feasible and prudential alternatives that would further minimize impacts on wetland areas.
      “(7) In evaluating this application, the Agency was concerned about the potential cumulative impact of residential development on Raccoon Swamp. The proposed application would eliminate 4% of Raccoon Swamp, wetland complex. Loss of this wetland area and future anticipated losses would have a significant and adverse effect on the quality of the water in Carpenter’s Brook and result in a significant reduction in wildlife habitat value.
      “(8) Adverse environmental impacts associated with the proposed activities include the following:
      “(a) potential sedimentation and erosion into adjacent inland wetland and watercourse areas.
      “(b) the loss of viable inland wetland and watercourse wildlife habitats.
      “(c) an uncontrolled increase in runoff due to site development and discharge from storm drains.
      “(d) the degradation of surface water quality in Carpenter’s Brook a tributary to a drinking water reservoir.
      “(9) The Gil lot would have significant value to an abutter for speculation as to future use as documented by Michael B. Gold in a report dated June 6,1988.
      “(10) The proposed single family residence would reduce the adjacent inland wetland and watercourse areas capacity to support desirable biological life, prevent flooding, control sedimentation and erosion, assimilate waste, facilitate drainage, supply water and provide open space.
      “(11) The construction activities associated with the single residence are regulated activities that would have a significant impact and major adverse effect on inland wetland and watercourse areas as defined in Section 2.0 of the Greenwich Inland Wetland and Watercourse Regulations.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    State of Connecticut v. Gaetano Marino
    (7591)
    Dupont, C. J., Borden and Daly, Js.
    Argued March 14
    decision released August 13, 1990

      Anthony C. Polvino, with whom was Edward J. Peters, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, was John T. Redway, state’s attorney, and Timothy J. Liston, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals from the judgment of conviction, after a jury trial, of the sale of cocaine by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). The defendant claims that the trial court improperly (1) denied his pretrial motion for a continuance, (2) instructed the jury on the issue of entrapment, (3) sustained a state witness’s claim of attorney-client privilege, and (4) permitted the state’s attorney to cross-examine a defense witness about his prior guilty plea.

The following facts are relevant to the disposition of the defendant’s appeal. In July, 1987, Laurel Morey was driven to the defendant’s house at 10 Riverside Drive, Portland, by her cousin, Robin Solis. The two women entered the defendant’s house and proceeded to the living room where they met the defendant. After some limited conversation, the defendant produced a plate with cocaine on it, and cut the cocaine into three lines with a razor. The defendant passed the plate and a metal tube around the room, and Morey, Solis and the defendant each inhaled the cocaine on the plate. At some time within the next hour, the defendant again cut three lines of cocaine and the three again inhaled the narcotic substance.

On August 12,1987, a Guilford police detective, acting as an undercover agent for the statewide narcotics task force, met with Rosario Aresco and bought one-eighth ounce of cocaine from him. After the sale, Aresco asked the detective to drive him to 10 Riverside Drive, and she complied. They stopped in front of the house for a few seconds and then, at Aresco’s direction, they drove to a restaurant about one block away. Aresco went into the restaurant and made a telephone call. He returned to the detective’s car and asked her to bring him back to the Riverside Drive house. The pair returned to, and entered, the house. Once inside, Aresco introduced the detective to the defendant. After a short time, the defendant placed some cocaine in a bowl and passed the bowl to Aresco. Aresco asked the detective to put the one-eighth ounce she had just purchased from him into the bowl. The detective obliged. Aresco consumed some of the cocaine, but the detective declined and left the premises, explaining that she had to go to work.

On September 19, 1987, the detective and other members of the task force were directed to attempt to purchase more cocaine from Aresco. When the detective discovered that Aresco was not home, the defendant became the target of the task force’s investigation. She went to 10 Riverside Drive at about 6:30 p.m. and explained that she could not find Aresco, but wanted to buy some cocaine. The defendant invited her in and produced four packets of cocaine that he sold to her for $200. He told her that he did not like taking Aresco’s customers away from him, but that if she needed anything more she could return to his home.

On November 24,1987, the defendant was arrested. When the defendant was told that he was under arrest, he asked: “For the stuff I sold this morning?”

I

On September 23,1988, the defendant filed a motion for a continuance requesting that the trial be postponed until such time as the state made full disclosure of any and all information concerning his case that was gathered from wiretaps in an ongoing, broader, narcotics investigation. The defendant now claims that the trial court improperly denied this pretrial motion.

The defendant claims that the testimony that was given by a police officer at the hearing on his motion for continuance was false and its admission violated the principles set forth in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194,10 L. Ed. 2d 215 (1963), and denied him due process. This claim relates to the defendant’s assertion of a defense of entrapment.

The defendant’s argument is based upon the premise that if the state’s decision to attempt to buy drugs from him on September 19,1987, arose out of the content of an interception by wiretap of a September 17, 1987 conversation he had with another person, that fact would have tended to establish his .defense of entrapment. If that were the case, he argues, he was improperly denied the opportunity, because of the officer’s incorrect testimony regarding the date of the translation of the conversation, of establishing that the buy from him on September 19 was prompted, not by his conduct in August and by his reputation with the police as a narcotics trafficker, as the state claimed, but by the overheard telephone conversation on September 17. If the conversation prompted the controlled buy, he claims that would be entrapment.

The officer in question testified that the police had a wiretap of a telephone conversation between the defendant and another, dated September 17,1987, and that the conversation had been translated from Italian to English on September 28, 1987, when, in fact, this conversation had been translated on September 18,1987. The trial court denied the continuance sought by the defendant because the translation had not occurred until after the September 19 buy from the defendant.

The correct date of the translation does not aid the defendant in his defense of entrapment. General Statutes § 53a-15 provides that “[i]n any prosecution for an offense, it shall be a defense that the defendant engaged in the proscribed conduct because he was induced to do so by a public servant . . . for the purpose of institution of criminal prosecution against the defendant, and that the defendant did not contemplate and would not otherwise have engaged in such conduct.” See also State v. Grant, 8 Conn. App 158,164, 511 A.2d 369 (1986). “ ‘ “[I]f the criminal intent or the willing disposition to commit the crime originates in the mind of the accused and the criminal offense is completed, the fact that the opportunity is furnished or the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him for it constitutes no defense. On the other hand, if the evil intent and criminal design originate in the mind of the government agent and the accused is lured into the commission of the offense charged in order to prosecute him for it, when he would not have committed an offense of that general character except for the urging of the agent, no conviction may be had.” ’ ” State v. McNally, 173 Conn. 197, 201, 377 A.2d 286 (1977).

It is difficult to conclude that any misstatement of the date of the translation resulted in a denial of the defendant’s ability to mount a defense, or that there was any reasonable probability that the result of the trial would have been different had the correct date of the translation been known. See State v. Pollitt, 205 Conn. 132, 141, 531 A.2d 125 (1987).

The trial in this case began on October 13, 1988, at which time the defendant was aware of the translation, regardless of whether it was made on September 18, 1987, or on September 28, 1987. He, thus, could have specifically requested a copy of the translation. The state also offered to allow the defendant to listen to the tape. In addition, by the time of trial and as of the date of the hearing on the motion that occurred just prior to the trial, the defendant knew the date and substance of the intercepted conversation. Where, as here, the defendant had access to the conversation in question, or could have discovered its contents through reasonably diligent efforts, the state cannot be said to have suppressed that information. State v. Simms, 201 Conn. 395, 407, 518 A.2d 35 (1986).

In Brady v. Maryland, supra, 87, the United States Supreme Court stated that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” “The heart of the holding in Brady is the prosecution’s suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence.” (Emphasis added.) Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 33 L. Ed. 2d 706, reh. denied, 409 U.S. 897, 93 S. Ct. 87, 34 L. Ed. 2d 155 (1972). The evidence in question is only material if it is reasonably probable that, had it been disclosed to the defendant, the outcome of the proceeding would have been different. State v. Pollitt, supra, 205 Conn., 142-43.

When we apply the relevant principles of law to the case at hand, we conclude that there was no Brady violation in the present case. “ ‘ “[T]he materiality determination is not to be made in a vacuum; rather it must be made in the context of all the evidence introduced at trial.” ’ ” State v. Pollitt, supra, 205 Conn. 143. The evidence in this case clearly indicates that the controlled buy resulted from the undercover agent’s investigation, and the suspicion of the Middletown police, as stated in their affidavit for the arrest warrant of the defendant, that the defendant was a “heavy narcotics trafficker.”

The translation of the September 17, 1987 conversation, made, on September 18, 1987, rather than on September 28, 1987, forms the basis for the defendant’s claim that the state did not make a full and fair disclosure of all of the information it possessed from the wiretaps concerning the defendant. The evidence, however, was not material to his defense of entrapment. The only translation available to the state and the defendant until after the conclusion of the trial was the incriminating translation of the September 17,1987 conversation made by a Federal Bureau of Investigation agent on September 18,1987, and represented by the testifying police officer to have been made on September 28,1987. That translation, in fact, tends to disprove the defense of entrapment because it indicates the defendant’s predisposition to commit the crime he was charged with and does not support his claim of inducement or enticement by the police.

We realize that the question of whether tardy disclosure of Brady material requires a continuance is usually a factual question to be determined by the trial court. State v. Pollitt, 199 Conn. 399, 414, 508 A.2d 1 (1986). “When the mind of a fair and reasonable person could reach only one conclusion, however, it becomes a question of law.” Hughes v. National Car Rental Systems, Inc., 22 Conn. App. 586, 590, 577 A.2d 1132 (1990).

In view of the circumstances of this case, we conclude that, even if we were to assume that the evidence requested by the defendant was favorable, it falls short of the materiality standard set forth in State v. Pollitt, supra, 205 Conn. 141-43.

II

The defendant also claims that the instructions of the court were tantamount to a direction of a verdict on the defense of entrapment. The instructions correctly stated the law and were in accord with General Statutes § 53-15 and case law. State v. McNally, supra, 201-202. Under the circumstances of this case, it is doubtful that the defendant was entitled to any charge on entrapment. The court, however, “gave the defendant the benefit of any doubt and fully charged the jury on the issue.” Id., 202.

Ill

The defendant also claims that the trial court impermissibly allowed the state’s witness, Laurel Morey, to claim the attorney-client privilege during the defendant’s cross-examination of her.

The following facts are necessary for the resolution of this claim. The state called Morey as a rebuttal witness on the issue of entrapment to show that the defendant had a predisposition to engage in the prohibited conduct. On direct examination by the state, she testified that she had consumed cocaine with her cousin and the defendant at the defendant’s house, that there were pending drug charges against her, and that she was aware of a disposition offer made by the state in her case. She also testified that her understanding of the offer was that she would not be charged as a person who is not drug-dependent in exchange for her testimony in the defendant’s case, and that she would not be charged with an additional narcotics crime.

On cross-examination, Morey testified that she had not asked for the plea bargain, but that it was volunteered. When asked who volunteered the offer, the court allowed Morey to invoke the attorney-client privilege. This was the only remaining question not answered to which an objection was sustained. All of the additional information claimed by the defendant, in his brief, to have been improperly protected by the attorney-client privilege was, in fact, obtained from the witness after defense counsel rephrased his questions at the direction of the court.

Even if the witness should not have been allowed, however, to invoke an attorney-client privilege to exclude the information requested in the one unanswered question, the failure to have that answer presented to the jury did not interfere with the defendant’s right to confront the witness, nor did it interfere with the defendant’s right to impeach the credibility of the witness. On the basis of the record before us, we conclude that the jurors had sufficient information before them to draw an inference of bias if they wanted to do so. Furthermore, because only one question was not eventually answered by this witness, the defendant’s right to confront the witness was not violated.

IV

The defendant’s final claim is that the trial court improperly permitted the state’s attorney to cross-examine a defense witness about his guilty plea to a separate drug related charge.

The following facts are relevant to the resolution of this claim. During the presentation of the state’s case, the undercover detective testified that she had purchased cocaine from Aresco while they were in her car in a parking lot in Middletown. Aresco testified for the defense. On direct examination, Aresco denied that the transaction had taken place in the undercover detective’s car, and testified that it had, in fact, occurred in Aresco’s home. The state’s attorney proceeded to impeach the witness with a transcript of statements he had made during his Alford plea canvass to other drug related charges. Immediately prior to this colloquy, the trial court found that the statements made during the plea canvass were prior inconsistent statements and could be admitted solely for the purpose of impeaching the witness’ credibility. The court then gave the jury a limiting instruction to this effect.

The defendant claims that it was improper for the trial court to allow the witness’ statements from the prior plea canvass to come before the jury. He argues that the state’s attorney exceeded the permissible scope of cross-examination when he inquired about the underlying facts of the witness’ prior convictions, and that the transcripts used by the state’s attorney were impermissible hearsay.

When prior convictions are admitted to impeach the credibility of a witness through a general inference of bad character, the facts underlying the conviction are generally inadmissible. State v. Denby, 198 Conn. 23, 30, 501 A.2d 1206 (1985), cert. denied, 475 U.S. 1097, 106 S. Ct. 1497, 89 L. Ed. 2d 898 (1986). However, “ ‘[cjross examination, in quest for the truth, provides a means for discrediting the testimony of a witness’ id.; and matters that may not otherwise be relevant become so for the purpose of credibility. Id., 31-32.

The record shows a clear contradiction between Aresco’s statements at his Alford plea canvass and those he made on the witness stand. This contradiction was one factor for the jury to utilize in weighing his credibility.

Furthermore, although statements at an Alford plea canvass are generally considered to be hearsay, they may be admitted under the prior inconsistent statement exception to the hearsay rule. See State v. Whelan, 200 Conn. 743, 748-49, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). Under circumstances such as those here, statements taken from the transcripts of an Alford plea canvass are admissible for the jury’s consideration. State v. Simms, 14 Conn. App. 1, 3-4, 539 A.2d 601 (1988), aff'd, 211 Conn. 1, 557 A.2d 914 (1989).

We conclude that the trial court properly allowed the state to inquire, on cross-examination, where — in an undercover agent’s car or in the witness’ own home— the witness sold cocaine to Aresco.

The judgment is affirmed.

       The charges filed in relation to the broader investigation were heard in State v. Cardella, Superior Court in the Judicial District of Middlesex, Docket No. CR 9-94965.

       The translation of the September 17,1987 conversation made on September 18, 1987, is as follows:
      “Call #112
      “This call was between Tommy and Guy.
      “T: Hey Guy, what’s up?
      “G: What do you want?
      “T: I got a guy here who needs a pair.
      “G: 16.
      “T: What?

        “G: 16.
      “T: What does Maria want?
      “G: Unitell.....

        “T: A little bit over would be fine.
      “G: Bye
      “T: Good bye.”

       The record before us does not compel the conclusion that the misstated date was an intentionally false statement. Another conversation of the defendant was intercepted on September 15,1987. That conversation, which was later deemed not pertinent, was, in fact, translated on September 28, 1987. Hence, the officer’s testimony may have resulted from an error in the log containing those conversations.

       Another translation of the same September 17,1987 conversation was translated on June 12,1989, and was obviously not in existence as of the date of the hearing on the motion for a continuance or as of the date of the trial. It reads as follows:
      “F: Hello.
      “J: Hi. Guy home?
      “F: Ya, who is speaking?
      “J: John.
      “F: Who’s John?
      “J: He’s on the other side.
      “G: Yo.
      “J: Hey Guy.
      “G: What up?
      “J: What do you want?
      “G: Can I come and visit you today?
      “J: Are you going to be busy long?
      “G: What?
      “J: Busy long?
      “G: In busy. What Maria want?
      “J: Can I pass by now?
      “G: Yeah you can come by.
      “J: OK.
      “G: Yeah, there is no problem.
      “J: I’ll see you.
      “G: Bye.”
      There is substantial discrepancy between the translations that is not resolved in this record.

       The court charged as follows: “The defense of entrapment is available only to a person who is not engaged in criminal activities and who would not have committed the crime if it had not been for the inducement of a police officer. If the criminal intent or willing disposition to commit the crime originates in the mind of the accused and the criminal offense is completed, the fact that the opportunity furnished for the accused is aided in the commission of the crime, and by this particular case, the police officer, constitutes no defense. On the other hand, if the evil intent in the criminal design originates in the mind of the police officer and the accused is lured into the commission of the crime charged in order to prosecute him for it, when he would not have committed an offense of that general character, except for the urging of the agent, no conviction may be had. . . . Now, inducement means more than a simple request to break the law. In the evidence, in this case, the colloquy which you have heard on the tape and other evidence that came in with respect to the tape, the colloquy between [the undercover detective] and the Defendant discloses nothing more than a simple request by the police officer, that the Defendant break the law. That alone, is not inducement, which would support the claim of entrapment.”

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).


author: Norcott, J.

text:
    Kirk Walworth, Executor (Estate of Clarence B. Walworth), et al. v. Hartford Hospital et al.
    (8599)
    Daly, Norcott and Landau, Js.
    Argued May 7
    decision released October 2, 1990

      James C. Wing, Jr., for the appellants (plaintiffs).

      Lois B. Tanzer, with whom, on the brief, was Tracey C. Kammerer, for the appellee (named defendant).

      Dean M. Cordiano, with whom was Mary Ellen C. Whiteman, for the appellee (defendant Herrick Ridlon).
   Norcott, J.

The plaintiffs, Kirk Walworth and Joyce Walworth, appeal from the judgment rendered following the trial court’s granting of the defendant Hartford Hospital’s motion to dismiss and the defendant Herrick Ridlon’s motion to strike. The dispositive issue on appeal is whether an action dismissed for failure to file a memorandum in opposition to a motion to dismiss can be reinstituted under General Statutes § 52-592, the accidental failure of suit statute.

This case arises from a complex set of procedural facts. In July, 1986, Clarence Walworth and his wife Joyce instituted an action against Hartford Hospital, Ridlon and Donald Walker, seeking damages for injuries sustained by Clarence Walworth allegedly as a result of the defendants’ malpractice and for loss of consortium on behalf of Joyce Walworth (Walworth I). On March 31, 1987, Clarence Walworth died.

Almost one year later, on February 29, 1988, Ridlon moved to dismiss the action for failure to appoint an administrator or executor in a timely manner pursuant to General Statutes § 52-599. Hartford Hospital filed a similar motion, and argument on both motions was heard on March 28, 1988. On that same day, Kirk Walworth, as executor of the estate of Clarence Walworth, moved to be substituted as a party for his decedent. The trial court, Purtül, J., granted Hartford Hospital’s motion to dismiss and notified that defendant on May 10,1988. The court’s order cited the plaintiffs’ failure to file a memorandum in opposition to the defendants’ motions as required by Practice Book § 143 and the plaintiffs’ failure to appoint an administrator or executor within the time period imposed by General Statutes § 52-599. The trial court, Shaughnessy, J., granted Kirk Walworth’s motion to be substituted as a party plaintiff on June 20, 1988. On April 19, 1989, Judge Purtill amended his order dismissing the action to include the claims against Ridlon.

On March 29, 1989, the plaintiffs brought a second action under General Statutes § 52-592, the accidental failure of suit statute (Walworth ZZ). Hartford Hospital moved to dismiss Walworth II, claiming that because the plaintiffs had failed to file a memorandum in opposition to the defendants’ motions to dismiss in Walworth I and to appoint an administrator or executor in a timely manner, they were precluded from relying on General Statutes § 52-592 to revive their suit. Ridlon filed a motion to strike with similar allegations. The trial court granted both motions, finding that the failure to substitute an executor under General Statutes § 52-599 was fatal to the action and that a new action could not be recommenced under General Statutes § 52-592.

Our decision in this case is controlled by our Supreme Court’s ruling in Hughes v. Bemer, 200 Conn. 400, 510 A.2d 992 (1986) (Hughes I), and its progeny. In Hughes I, the court held that the plaintiff, by failing to file a memorandum in opposition to the defendant’s motion to strike as required by Practice Book § 155, had consented to the granting of that motion and was therefore precluded from mounting a substantive challenge to that ruling on appeal. Id., 402. The plaintiffs in Hughes I filed a second action under General Statutes § 52-592. In an appeal from the trial court’s dismissal of this second action, the Supreme Court determined that “[t]he judgment that may . . . enter [after the plaintiff’s failure to file a memorandum in opposition to a motion to strike], though not necessarily a determination on the merits, is nevertheless a final judgment whose issues are thereafter res judicata as between the parties.” Hughes v. Bemer, 206 Conn. 491, 495, 538 A.2d 703 (1988) {Hughes II). The court concluded, therefore, that an action dismissed pursuant to Practice Book § 155 has not failed “for any matter of form” within the meaning of General Statutes § 52-592. Id., 494-95; cf. Lacasse v. Burns, 214 Conn. 464, 572 A.2d 357 (1990) (dismissal for failure to prosecute under Practice Book § 251 held to be a dismissal for a “matter of form” and is thus distinguishable from a Hughes II dismissal).

Similarly, a plaintiffs failure to file a memorandum in opposition to a motion to dismiss operates as a consent to the granting of the motion. Blonder v. Hartford Helicopters, Inc., 209 Conn. 618, 522 A.2d 427 (1989); Burton v. Planning Commission, 209 Conn. 609, 553 A.2d 161 (1989). A dismissal for such a failure, however, is a final judgment to which the principles of res judicata attach only if “the plaintiffs’ concession of the judgment rendered thereafter . . . directly or tangentially implicates the merits of the underlying controversy.” Southport Manor Convalescent Center, Inc. v. Foley, 216 Conn. 11, 16, 578 A.2d 646 (1990). By failing to file a memorandum in opposition to a motion to dismiss in Southport Manor, the plaintiffs conceded only that the trial court lacked jurisdiction to hear the case. The Supreme Court held, therefore, that the plaintiffs were specifically authorized to commence a new action under General Statutes § 52-592 (a), which provides for such an action if “ ‘the [original] action has been dismissed for want of jurisdiction.’ ” Id., 17.

Unlike the dismissal of the plaintiffs’ original action in Southport Manor, the trial court’s dismissal of Walworth I was based not on jurisdictional grounds but on the plaintiffs’ own neglect in failing to have an executor or administrator substituted within the time limit found in General Statutes § 52-599 (b). “In cases where we have either stated or intimated that the ‘any matter of form’ portion of § 52-592 would not be applicable to a subsequent action brought by a plaintiff, we have concluded that the failure of the case to be tried on its merits had not resulted from accident or even simple negligence.” Lacasse v. Bums, supra, 473. Here, the plaintiffs waited for over one year before filing the requisite motion to substitute, and did so only when confronted with the defendants’ motions to dismiss. We find that this neglect rises to the level noted in Lacasse v. Burns, id. Therefore, we conclude that, where “the failure of the suit was caused by the neglect of the plaintiff to have an administrator appointed and to present his claim at an earlier date rather than by the death of the defendant’s intestate”; Baker v. Baningoso, 134 Conn. 382, 386, 58 A.2d 5 (1948); a plaintiff may not avail himself of the accidental failure of suit statute.

This case fits squarely within the rule stated in Hughes II and modified by Southport Manor. Under the facts of this case, there can be no action under General Statutes § 52-592 following a dismissal for failure to file a memorandum in opposition to a motion to dismiss as required by Practice Book § 143 as it existed in 1988. The plaintiffs are barred from reinstituting their action because the judgment of dismissal here, unlike the judgment of dismissal in Southport Manor, is deemed to have implicated the merits of the parties’ controversy.

The judgment is affirmed.

In this opinion the other judges concurred.

       Donald Walker was a defendant in the original action. He was not, however, named by the plaintiffs in their second complaint and is therefore not a party to this appeal.

       At the time of Clarence Walworth’s death, General Statutes (Rev. to 1987) § 52-599 provided in relevant part: “(a) A cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person.
      “(b) A civil action or proceeding shall not abate by reason of the death of any party thereto, but may be continued by or against the executor or administrator of the decedent. If a party plaintiff dies, his executor or administrator may enter within six months thereafter and prosecute the action in the same manner as his testator or intestate might have done if he had lived. If a party defendant dies, the plaintiff, within one year thereafter, may apply to the court in which the action is pending for an order to substitute the decedent’s executor or administrator in the place of the decedent, and, upon due service and return of the order, the action may proceed.”

       At all times relevant to this case, Practice Book § 143 provided: “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.
      “If an adverse party objects to this motion he shall, at least five days before the motion is to be considered on the short calendar, file and serve in accordance with Sec. 120 a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record. An adverse party who fails timely to file such a memorandum pursuant to this section shall be deemed by the court to have consented to the granting of the motion.”
      The recent amendment to Practice Book § 143 deleted the provision that a party failing to timely file an opposing memorandum has consented to the granting of the motion. This provision was in force, however, when the plaintiffs’ original action was dismissed. Therefore, for purposes of this appeal, we must apply Practice Book § 143 as including the now defunct consent provision.

       General Statutes § 52-592 provides in relevant part: “(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”

       At the time of Hughes I, Practice Book § 155 provided: “Each motion to strike must be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies.
      “If an adverse party objects to this motion he shall, at least five days before the date the motion is to be considered on the short calendar, file and serve in accordance with Sec. 120 a memorandum of law. An adverse party who fails timely to file such a memorandum pursuant to this section shall be deemed by the court to have consented to the granting of the motion.”
      As with Practice Book § 143, a recent amendment to Practice Book § 155 deleted the consent provision.


text:
    In re Noel M.

    (6451)
    Dupont, C. J., Daly and Norcott, Js.
    Argued April 3
    decision released October 2, 1990

      Prescott W. May, with whom, on the brief, was Scott A. Barton, for the appellant (respondent mother).

      Patricia Lilly Harleston, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, attorney general, and Susan Pearlman, assistant attorney general, for the appellee (petitioner).

      Melissa A. Buckley, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Norcott, J.

The respondent appeals from the trial court’s judgment adjudicating the respondent’s minor child, Noel M., to be neglected and committing her to the temporary custody of the department of children and youth services (DCYS). On appeal, the respondent claims (1) that the evidence was insufficient to support a finding of neglect, (2) that the trial court violated her constitutional rights to confrontation and to cross-examination by not allowing her counsel to question the child directly, (3) that the trial court improperly allowed certain witnesses to testify to the ultimate issue of whether the child was being truthful in describing alleged sexual abuse, and (4) that the trial court ignored the Connecticut public policy to promote family integrity.

The following facts are not in dispute. On August 9, 1986, Noel, then eight years old, told her maternal grandmother that she had been sexually molested by her stepfather. The next day, in the presence of her grandmother, she repeated this accusation to the respondent, who contacted DCYS and the Milford police department. The stepfather was subsequently arrested and charged with risk of injury to a child and sexual assault in the fourth degree.

On August 11, at the suggestion of a DCYS intake worker, the respondent and her child left the marital residence and moved in with the maternal grandmother. After hearing inconsistent statements from the child, and after the stepfather vehemently denied the accusations, the respondent was convinced that her child was incorrect, and, on September 7, she and Noel moved back in with the stepfather.

On September 10, DCYS filed a petition for temporary custody and a finding of neglect, claiming that the child was sexually abused and was being permitted to live under conditions injurious to her well-being.

The trial court held a full hearing on the petition of DCYS. After the hearing, the trial court determined that the child was neglected and committed her to the temporary custody of DCYS for the maximum period of eighteen months with continued residency in the maternal grandparents’ home. From that judgment, the respondent appeals.

I

Before addressing the respondent’s claims, we must address the petitioner’s argument that this appeal is moot. The petitioner relied upon the fact that the period of temporary custody had expired and the parties agreed to extend the commitment for up to eighteen months more. The petitioner contends that since Noel continued in the custody of DCYS under an extension of commitment, no practical relief can be afforded to the respondent on appeal from the first commitment. We do not agree.

“ ‘It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.’ ” Hartford Principals’ and Supervisors’Assn. v. Shedd, 202 Conn. 492, 496-97, 522 A.2d 264 (1987); Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17, 19, 411 A.2d 1 (1979). The mere fact, however, that the term of the court’s order has expired is not enough to establish that an appeal from that order is moot.

While it is true that the original order of the court committing the child to the temporary custody of DCYS had expired, there still exists an actual controversy over whether Noel is a neglected child. Furthermore, it was only because of this commitment that DCYS was able to seek and obtain an extension under General Statutes § 46b-129 (e).

“ ‘[I]n the absence of a class action, the “capable of repetition, yet evading review” doctrine is limited to the situation where two elements combined: (1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] reasonable expectation that the same complaining party would be subjected to the same action again.’ ” Connecticut Foundry Co. v. International Ladies Garment Workers Union, supra, 20-21. Under § 46b-129 (e), “[n]inety days before the expiration of each eighteen-month commitment made . . . and each extension . . . the commissioner of children and youth services shall petition the court to . . . extend the commitment . . . .” (Emphasis added.) Hence, the respondent could expect to be subjected again to this same action. We conclude, therefore, that this case presents a situation that is capable of repetition yet evading review.

The appellate process in this case has, thus far, consumed over three years and it is possible that the second eighteen month extension period might lapse before any appellate review can be achieved. Accordingly, we will not dismiss the present appeal because of mootness and, instead, turn to the merits of the appeal.

. II

The respondent first claims that there was insufficient evidence to support an adjudication of neglect. We do not agree.

After a full hearing on the petition for adjudication of neglect, the trial court found the following relevant facts. On August 11, 1986, as a result of the respondent’s report of the child’s allegation of sexual abuse, a DCYS intake worker met with the respondent and her child. The child told the DCYS worker, in a separate interview, that her stepfather had escorted her into the bedroom where he touched her breasts and genital area. The respondent said that the child had said the same thing to her and, at that point, stated that the child was not a liar.

The DCYS worker advised the respondent to move out of the house and to keep the child away from the stepfather or she might risk losing custody of the child. The respondent then took the child and moved into the maternal grandparents’ home.

That same day, the respondent took the child to be examined by the child’s pediatrician. The pediatrician listened to the child’s story and examined her, both in the presence of the respondent. The child described to the doctor the manner in which her stepfather had, on several occasions, sexually abused her. In his examination the doctor found no evidence of trauma to or penetration of either the vagina or the anus, and he informed the respondent of this in the child’s presence. The doctor noted that the child verbalized well and seemed relieved when talking about her complaints. Although he found no objective evidence of abuse, it was his opinion that the child was telling the truth, and he referred her to a licensed clinical psychologist.

During a preliminary meeting with the psychologist, the respondent recounted the child’s allegations made to her grandmother. The respondent described Noel as a happy, well adjusted child who would tell the truth and said that the accusation against the stepfather was at variance with the child’s history, and the respondent had difficulty believing it.

The respondent became increasingly dissatisfied living at the grandparents’ home and feared that the grandmother was seeking to gain custody of the child. Relying on the pediatrician’s physical findings, on inconsistencies in the child’s stories and what she deemed to be appropriate behavior between the stepfather and child at a group picnic, she decided to return with her child to the stepfather. On September 7,1986, the respondent told the child that they were going to the apartment to get some clothing and that the stepfather would not be there. When they arrived, the stepfather and his two sons were in the apartment. Although the child protested, the respondent insisted that they spend the night.

Richard M., the child’s maternal uncle, visited the apartment that night. At his suggestion, the respondent informed the maternal grandparents that she and the child had returned to the home of the stepfather.

On September 8,1986, another DCYS intake worker spoke with Noel for about 45 minutes at her school. The child told this worker that the stepfather had touched her private parts and pointed to her breasts and vaginal area. The child also described an incident of sexual abuse by the stepbrother. The child then asked if her stepfather would go to jail. Following the report of this interview, DCYS decided to place a ninety-six hour hold over the child. It served papers on the respondent, picked up the child from school, and brought her to her grandparents’ house.

DCYS arranged for the grandmother to bring the child to the sexual abuse clinic at Yale-New Haven Hospital to be examined by a child sexual abuse expert. During the examination, the child described to that physician instances in which her stepfather had sexually abused her, saying that the last date was August 9, 1986, the day she told her grandmother about it. She also said she resisted his attempt to put his penis into her mouth, and she described an incident of attempted sexual abuse by one of her stepbrothers. The child was embarrassed and emotional during this discussion. She was clear, however, in distinguishing the acts performed by her stepfather from those performed by her stepbrother.

The physician’s physical findings revealed hymenal tears to the vagina consistent with forced insertions, and she was of the opinion, based upon the manner in which the child told her story and upon the physical evidence, that the child was being truthful. She recommended that the child be placed somewhere where neither her stepfather nor stepbrother would have access to her.

When the clinical psychologist met with the child, she told him that on weekends, the stepfather touched her private parts and that she was scared. She expressed fear of her stepfather, claiming he had hit her, and anger at her mother for disbelieving her and forcing her to return to the stepfather. The child explained that she did not tell the respondent about the episodes of abuse when they occurred because the respondent had not believed her when she complained of being hit. The child expressed a desire not to see her stepfather again and a preference to stay with her grandparents until her “mother realizes what he did to [her].” Throughout the interviews, the psychologist became convinced that the child was not repeating things that adults had told her to say, but rather that she was recounting events as they had occurred. This belief was based upon the constancy of the story and the manner in which the child expressed it.

The psychologist referred Noel to his associate for psychological testing and an independent evaluation. The associate concluded, based upon the results of tests administered to the child and interviews with her, that she had been truthful in recounting the episodes of abuse.

When the referring psychologist related his discussions with the child to the respondent, she reacted with disbelief as though she felt the incidents could not have taken place. The psychologist characterized her strong expressions of disbelief as denial.

The child testified at the neglect hearing, recounting in detail the specifics of these alleged incidents of abuse. The trial court found the child to be a most credi-. ble witness.

On the basis of these findings, the trial court found that the child was sexually abused and that, in returning the child to the stepfather’s control, the respondent had acted with full knowledge of the child’s claims and consciously chose to disbelieve them. The trial court, therefore, adjudicated Noel to be neglected under General Statutes § 46b-120, which provides that a child may be found “neglected” if that child has been “permitted to live under conditions, circumstances or associations injurious to his [or her] well-being.”

In reviewing a claim of insufficiency of evidence, “we review the factual findings below to ensure that they could have been legally, logically and reasonably found, thereby establishing that the trial court could reasonably conclude as it did.” Ernst Steel Corporation v. Reliance Ins. Co., 13 Conn. App. 253, 258, 536 A.2d 969 (1988). Our function is to review the trial court record. “ ‘It is not our function to retry the case or to pass on the credibility of witnesses . . . and we will not.’ ” (Citation omitted.) In re Christine F., 6 Conn. App. 360, 366, 505 A.2d 734, cert. denied, 199 Conn. 808, 508 A.2d 769 (1986); In re Jason S., 9 Conn. App. 98,109, 516 A.2d 1352 (1986).

From our review of the record, we conclude that the trial court’s findings were amply supported by the evidence. The testimony of all the witnesses supported the child’s allegations of sexual abuse. The child gave them all generally consistent versions of what had happened to her, and the physical findings showed evidence of sexual abuse. Further, the child testified to the details of the alleged abuse, and the trial court found her to be credible.

The respondent claims that the various versions of sexual abuse recounted by the child were inconsistent, and, therefore, her testimony should be disbelieved. She also claims that the child’s credibility was sufficiently attacked when a cousin, whom the child claims to have told about the sexual abuse and who herself had been sexually abused by the stepbrother, testified that she had no such knowledge.

The trial court found that the various versions of the child’s accusations were generally consistent, and the fact that she may have described only one incident to a particular witness and more to another does not mean the additional incidents did not occur. Further, the court found that even if it were to decide against the child as to the inconsistency between the testimony of the child and her cousin, the rest of her testimony was consistent and credible.

“[I]t is the province of the trier of fact to weigh the evidence presented and to determine its credibility.” In re Jason S., supra. We will not “ ‘ “second-guess . . . the observations and conclusions of the Superior Court for Juvenile Matters when they are based on reliable evidence.” ’ ” In re Theresa S., 196 Conn. 18, 27, 491 A.2d 355 (1985).

In her final attempt to attack the sufficiency of the evidence on the finding of neglect, the respondent claims that she had no knowledge of the sexual abuse of the child, and, therefore, she could not be found to have neglected her child. It is undisputed that before August 9, 1986, the respondent had no knowledge of the sexual abuse of Noel by her stepfather. What is in issue in this case is the respondent’s action of returning home with the child after she had been made aware of the abuse.

The trial court found that the respondent acted with full knowledge of the child’s claims and consciously chose to disbelieve them. That ruling is supported by a fair preponderance of the evidence. We conclude that the trial court reasonably adjudicated the child to be neglected. We will not, therefore, disturb that ruling.

Ill

The respondent next claims that her constitutional rights to confrontation and to cross-examination and her statutory right to cross-examination provided by General Statutes § 46b-135 (b) were violated by the procedure employed by the court in questioning the child.

The trial court questioned the child in chambers with all counsel, the court monitor and a DCYS social worker present. All questioning was done by the court, but counsel was provided with the opportunity to submit questions in advance. Much of the questioning was based on the questions submitted by counsel. Pursuant to Practice Book § 1042 (7), the respondent was not present.

The respondent does not dispute the validity of her exclusion from the in chambers examination of the child.. She argues, rather, that her rights to confrontation and cross-examination were violated when her attorney was not allowed to cross-examine the child directly.

The respondent’s constitutional claim is grounded in the sixth amendment to the United States constitution, “which is expressly limited to a defendant in a criminal action”; State v. Anonymous, 179 Conn. 155,159, 425 A.2d 939 (1979); and in article first, § 8, of the Connecticut constitution, which is similarly limited to criminal defendants. Id. “Neither the sixth amendment to the United States constitution nor article first, § 8, of the Connecticut constitution can be extended to a parent in a termination of parental rights hearing . . . .” Id. It, therefore, cannot logically be extended to a neglect hearing. The respondent’s rights to confrontation and cross-examination here are not constitutional rights, but rather statutory ones.

General Statutes § 46b-135 (b) provides: “At the commencement of any proceeding on behalf of a neglected, uncared-for, or dependent child or youth, the parent or parents or guardian of the child or youth shall have the right to counsel, and shall be so informed by the judge, and that if they are unable to afford counsel, counsel will be provided for them, and such counsel and such parent or guardian of the child or youth shall have the rights of confrontation and cross-examination.” We have recognized that cases involving the testimony of abused children require special consideration. See e.g., id.; Practice Book § 1042 (7). “The United States Supreme Court has recognized that competing interests ‘may warrant dispensing with confrontation at trial.’ ” States. Jarzbek, 204 Conn. 683, 693, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988).

The respondent does not claim the court improperly excluded questions, failed to address a requested area of inquiry, or conducted the examination improperly or in such a way as to cause her prejudice. Cf. id., 696. She challenges only the procedure for the questioning.

In this case, the court allowed all parties to submit questions and areas of concern for examination. The respondent’s counsel was present, and the court allowed the parties to submit additional questions during the examination. The questioning was, in essence, “the functional equivalent of testimony in court.” Id., 697. We conclude, that the procedure employed did not deprive the respondent of her rights to confrontation and cross-examination.

IV

The respondent also claims that the trial court improperly permitted the medical experts to express their opinions as to the ultimate issue of fact in the case, that is, the child’s truthfulness. She argues that the truthfulness of the child was the ultimate issue in this case because it was the respondent’s disbelief in the child’s allegations that prompted her to return home, and it was because she returned home with the child that the trial court adjudicated the child to be neglected. While the adjudication of neglect was based upon the respondent’s belief that the child was untruthful, in finding that belief unreasonable, the court necessarily had to determine the child’s truthfulness. The child’s truthfulness, as argued by the respondent, was, therefore, the ultimate issue of fact.

“ ‘Generally, expert testimony is admissible if (1) the witness has special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.’ State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986).” State v. Lamme, 19 Conn. App. 594, 603, 563 A.2d 1372 (1989). As a general rule, however, “ ‘[a]n expert witness is not ordinarily permitted to express an opinion on an ultimate issue of fact which is to be decided by the trier of fact. State v. Vilalastra, 207 Conn. 35, 41, 540 A.2d 42 (1988); Kowalewski v. Mutual Loan Co., 159 Conn. 76, 80, 266 A.2d 379 (1970). . . .’ ” State v. Lamme, supra.

In cases involving a child’s claim of sexual abuse, our state Supreme Court has allowed expert testimony relating to the general credibility of the child victims. See State v. Spigarolo, 210 Conn. 359, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). Spigarolo held that “expert testimony that minor victims typically fail to provide complete or consistent disclosures of the alleged sexual abuse is of valuable assistance to the trier in assessing the minor victim’s credibility.” Id., 378. The court noted, however, that the expert was not asked “about the credibility of the particular victims in [the] case, nor did she testify as to their credibility. The cases that have considered this issue have noted the critical distinction between admissible expert testimony on general or typical behavior patterns of minor victims and inadmissible testimony directly concerning the particular victim’s credibility. See United States v. Azure, [801 F.2d 336, 340 (8th Cir. 1986)] (forbidding expert testimony on the credibility of the present victim); State v. Lindsey, [149 Ariz. 472, 475, 720 P.2d 73 (1986)] (direct expert testimony on credibility of particular child inadmissible); Wheat v. State, 527 A.2d 269, 275 (Del. 1987) (admitting expert testimony on general character of abuse victims but prohibiting testimony on specific victim’s veracity); People v. Foreman, [161 Mich. App. 14, 24, 410 N.W.2d 289 (1987)] (testimony that it is common for child sexual abuse victims to delay reporting of incidents admissible because expert did not opine on whether particular children were truthful); State v. Hicks, [148 Vt. 459, 462, 535 A.2d 776 (1987)] supra, 462 (testimony admissible where it concerned whether delay in reporting common but no opinion on victim’s credibility); but see State v. Kim, 64 Haw. 598, 609, 645 P.2d 1330 (1982) (expert opinion may reveal to trier characteristics of particular witness which may assist assessment of credibility); State v. Myers, 359 N.W.2d 604, 609-10 (Minn. 1984) (admitting expert opinion on victim’s credibility); State v. Geyman, 729 P.2d 475, 479 (Mont. 1986) (expert opinion admissible to assist jury on credibility of particular child).” (Emphasis added.) State v. Spigarolo, supra, 379.

This case is analogous to that of United States v. Azure, supra, 339, where the government offered the expert opinion of a pediatrician specializing in child abuse that the victim was truthful. The court in Azure held that this expert testimony improperly invaded the factfinder’s exclusive function of assessing witness credibility. Id.

In the present case, as in Azure, the expert testimony fell into the category of testimony directly concerning the particular child’s credibility. We conclude, therefore, that the trial court improperly admitted this testimony. In this case, however, the court was the trier of fact, and, therefore, had the task of determining credibility and of determining whether the respondent was reasonable in her belief that the child was untruthful. Because the trial court found that the child was a “most credible witness” and therefore did not base its conclusions on the testimony of the experts as to the child’s truthfulness, the error was harmless in this case.

V

The respondent’s final claim is that the court and DCYS acted contrary to Connecticut public policy as set forth in General Statutes § 17-38a (a), when they failed to reunite the family after the stepfather was acquitted of the criminal charges that resulted from this alleged abuse. We do not agree.

General Statutes § 17-38a (a) provides that “[t]he public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care . . .” (Emphasis added.) While it is clear that the public policy of this state is to preserve family integrity, “[i]t must be stressed . . . that the right to family integrity is not a right of the parents alone, but ‘encompasses the reciprocal rights of both parents and children.’ ” In re Juvenile Appeal (83-CD), 189 Conn. 276, 284, 455 A.2d 1313 (1983). “ ‘The primary concern of DCYS is the safety of [the child]. Family integrity can be the goal of DCYS only when such a reunion will not endanger the safety of the child.’ ” (Emphasis added.) In re Christine F., supra, 368.

The respondent relies on the stepfather’s acquittal to support her claim that the child was in no danger in returning to the family home. She argues that because the stepfather was acquitted, the DCYS should have been collaterally estopped from proceeding with the neglect hearing, and the child should have been returned home.

Collateral estoppel has been defined by our Supreme Court as “ ‘ “that aspect of the doctrine of res judicata which serves to estop the relitigation by parties and their privities of any right, fact or legal matter which is put in issue and has been determined by a . . . court of competent jurisdiction.” ’ ” State v. Fritz, 204 Conn. 156, 172, 527 A.2d 1157 (1987).

Evidence of a judgment of acquittal in a prior criminal case may not be used as proof in a subsequent civil case that the act comprising the crime was not committed. Griffin v. Parker, 22 Conn. App. 610, 619-620, A.2d (1990); McKenna v. Whipple, 97 Conn. 695, 701, 118 A. 40 (1922); see also Palma v. Powers, 295 F. Sup. 924 (M.D. Ill.) (1969).

The judgment is affirmed.

In this opinion the other judges concurred.

       The stepfather was ultimately acquitted, after a jury trial, on both counts.

       The psychologist noted that, at first, the child’s statements were mechanical as if she had told them to adults on several occasions. Later, however, she became more upset, crying and expressing genuine emotion. At times, she requested that the discussion stop.

       General Statutes § 46b-135 (b) provides in pertinent part: “At the commencement of any proceeding on behalf of a neglected . . . child or youth, the parent ... of the child or youth shall have the right to counsel, and . . . such counsel and such parent . . . shall have the rights to confrontation and cross-examination.”

       The respondent, in her statement of issues, alleges a due process violation also. This claim is not pursued, however, in the body of the respondent’s brief. Therefore, we deem it abandoned and do not address it here. Adams v. Rubinow, 157 Conn. 150, 168, 251 A.2d 49 (1968).

       Practice Book § 1042 (7) provides: “The respondent parties may be physically present in the hearing room while testimony is elicited on behalf of the petitioner, except where the witness is a child of the respondent. In such an instance, if the respondent is without counsel, the court shall summarize for him the nature of the child’s testimony.” (Emphasis added.)


author: Daly, J.

text:
    State of Connecticut v. Brian Taylor
    (8262)
    Daly, Norcott and Cretella, Js.
    Argued September 13
    decision released October 16, 1990

      William Holden, public defender, for the appellant (defendant).

      Donald A. Browne, state’s attorney, with whom, on the brief, was John Smriga, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, rendered after a trial to the court, for the sale of cocaine by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). The defendant challenges the trial court’s determination that there was sufficient evidence for conviction and its drawing of adverse inferences from the defendant’s failure to produce certain witnesses. We disagree and affirm the judgment of the trial court.

From the evidence, the trial court could have reasonably found the following facts. On May 17, 1988, Officers Richard Herlihy and Nicholas Ortiz of the Bridgeport police department, were conducting a narcotics surveillance in the area of the Marina Village Apartments in Bridgeport. The officers stationed themselves behind a three foot high fence located 120 feet from the parking lot adjacent to building thirty in Marina Village and began their surveillance with binoculars at about 8:15 p.m. At about 8:40 p.m., Herlihy observed a man enter the parking lot, approach and talk with the defendant on the south side of building thirty. The defendant then handed a small item to the man in exchange for some cash. Immediately thereafter, the man left.

At about 9:15 p.m., a black Plymouth pickup truck, driven by a man later identified as Richard Martinez, entered the area. Martinez got out of the truck and talked with the defendant. The defendant proceeded about twenty feet to the back of building thirty, removed an object from the ground and returned to hand Martinez a clear plastic bag. Martinez put the bag in his pocket, gave money to the defendant, and then drove off. Herlihy radioed other police units to apprehend Martinez, who subsequently was arrested and searched. The plastic bag was recovered from his person and its contents were later analyzed and identified as cocaine. Martinez said that he purchased the cocaine from the defendant for $600. The police found $601 on the defendant when he was arrested.

At trial, the defendant denied that he had been involved in any drug transaction and offered evidence that the $601 on his person was rent money given to him by his mother. The state offered the testimony of Officers Herlihy, Ortiz and Calixto Sanchez, as well as the drug buyer, Martinez, to support its allegation that the defendant had engaged in a drug transaction.

The trial court stated that it was convinced beyond a reasonable doubt that the defendant was guilty. The trial court then increased the defendant’s bond and set a date for the sentencing hearing. At that point, the defendant requested an immediate hearing to argue for a bond reduction. During the bond reduction argument, the trial court explained why it would not reduce the bond and why it had found the defendant guilty.

“I found the testimony of Detective Herlihy to be most credible. I did not find [the defendant’s] testimony to be credible in most aspects. I did not find Mr. Martinez’s testimony to be credible in any aspect, as a practical matter. . . . And I found that the evidence was overwhelming. This gentleman [the defendant] sold drugs. His girl friend never came to court. Mr. Gilchrist was here, I understand, and wouldn’t testify. There were supposedly other people who were never here. So these are things I’m only telling you [defense counsel] because [the defendant will] wonder why the judge found [him] guilty. Those are the reasons.”

The defendant first claims that there was insufficient evidence to convict him. “ ‘ “Appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task: We must first review the evidence construing it in the light most favorable to sustaining the trial court’s verdict. . . . ‘ “ ‘We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the [trier of fact] could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt . . . . ’ ” ’ State v. Plourde, 208 Conn. 455, 458, 545 A.2d 1071 (1988), quoting State v. Rollinson, 203 Conn. 641, 665-66, 526 A.2d 1283 (1987), and cases cited therein.” . . . ’ ” (Citations omitted.) State v. Allen, 216 Conn. 367, 380-81, 579 A.2d 1066 (1990).

When we apply this standard, there is no question that the evidence before the court established proof beyond a reasonable doubt of the defendant’s cocaine sale. Herlihy testified that he witnessed the transaction between the defendant and Martinez. Martinez, moreover, admitted purchasing the cocaine from the defendant for $600, and $601 was found on the defendant. The trial court found that Herlihy was a credible witness, whereas it questioned Martinez’ credibility and presumably did not believe the testimony of the defendant or his witnesses. “ ‘ “The trier of fact determines with finality the credibility of witnesses and the weight to be accorded their testimony.” ’ ” State v. Crump, 201 Conn. 489, 491, 518 A.2d 378 (1986). Any part of a witness’ testimony may be believed or disbelieved by the trier of fact. State v. Rothenberg, 195 Conn. 253, 257, 487 A.2d 545 (1985); see also State v. Amarillo, 198 Conn. 285, 289, 503 A.2d 146 (1986). “This court does not retry the case or evaluate the credibility of the witnesses.” State v. Amarillo, supra. Therefore, viewed in a light most favorable to sustaining the trial court’s verdict, the evidence clearly established the defendant’s guilt beyond a reasonable doubt.

The defendant’s second claim is that the trial court improperly drew adverse inferences from the defendant’s failure to produce as witnesses his girl friend, Anthony Gilchrist and other unnamed persons. The defendant asserted that he was actually at his girl friend’s home for a portion of that time on the night when Herlihy claimed to have observed him in the drug transaction. The defendant also testified that Anthony Gilchrist was at the same location where the drug transaction occurred and was wearing a jacket similar to the defendant’s, thus questioning Herlihy’s identification of the defendant as the seller.

The defendant bases this claim upon the trial court’s comments during the postconviction bond reduction argument. The court stated, when it rendered its decision that, “after reviewing all the evidence, the court [was] convinced beyond a reasonable doubt” of the defendant’s guilt. It was only during the bond argument that the comments occurred concerning the defendant’s failure to produce witnesses. The court also stated that it found Herlihy’s testimony most credible and did not believe either the defendant or Martinez. The court gratuitously offered these comments to the defendant as an explanation of both the conviction and the refusal to reduce the defendant’s bond. Therefore, the gratuitous comments of the trial court during a post conviction bond argument were extraneous to the defendant’s conviction and thus not germane to the trial court’s decision.

Even if we were to conclude that the trial court had drawn negative inferences against the defendant for failure to produce his girl friend, Gilchrist and other unnamed witnesses, it would have been harmless error because absent these negative inferences, the weight of the other evidence before the trial court overwhelmingly led to a finding of guilty. Although it was harmless error in this case, ordinarily a trial court, when drawing negative inferences against a party, must inquire into certain preliminary matters. Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960); see Blake v. Blake, 211 Conn. 485, 493, 560 A.2d 396 (1989). First, it must be shown that the party could reasonably be expected to produce the witness because that witness possessed peculiar or superior information material to the case, that the party would produce, if favorable. Secondino v. New Haven Gas Co., supra, 675; see State v. Anderson, 212 Conn. 31, 43, 561 A.2d 897 (1989). Second, the party must be able to procure the witness’ physical presence in the court. State v. Wood, 208 Conn. 125,140, 545 A.2d 1026, cert. denied, 488 U.S. 895,109 S. Ct. 235,102 L. Ed. 2d 225 (1988). Here, the Secondino requirements were not addressed and, thus, the trial court could not draw any adverse inferences against the defendant. If it did draw such negative inferences, the error would have been harmless in view of the remaining substantial evidence of the defendant’s guilt.

The judgment is affirmed.

In this opinion the other judges concurred.

       Whether an error is harmful or harmless depends upon whether it affected the verdict. Unless the defendant claims at trial that the error deprived him of a constitutional right, he bears the burden of proving its harmfulness. If the record discloses that the error could not reasonably have affected the verdict, it was harmless and is not reversible error. State v. Murrell, 7 Conn. App. 75, 91, 507 A.2d 1033 (1986), and cases cited therein. Here, the defendant has not met his burden of establishing harmfulness and the record supports the trial court’s finding.

       Apparently, a habeas corpus ad testificandum was issued for Gilchrist, but he refused to testify.


text:
    State of Connecticut v. Andrew Patterson
    (8443)
    Dupont, C. J., Spallone and Daly, Js.
    Argued September 11
    decision released October 16, 1990

      A. PaulSpinella, with whom, on the brief, was David Tilles, for the appellant (defendant).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and John Malone, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals from the trial court’s imposition of the maximum term of twenty-years subsequent to the defendant’s guilty plea to manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). On appeal, the defendant first claims that the trial court did not comply with the plea agreement between the defendant and the state. Second, the defendant claims that the trial court violated General Statutes § 54-91c by permitting persons other than the victims’ families to testify at the sentencing hearing and by allowing improper testimony concerning the victims, thereby violating the defendant’s federal and state constitutional rights to due process, and the defendant’s state constitutional rights under article first, § 9, of the Connecticut constitution by imposing a sentence not “clearly warranted by law.” The defendant made no objection before the trial court and now makes these claims for the first time, thus seeking review under the Evans-Golding criteria; State v. Golding, 213 Conn. 233, 239-40, 576 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); or the plain error doctrine. Practice Book § 4185.

The defendant’s first claim, even if reviewable, is without merit because the record discloses that the plea agreement was completely honored by the trial court. The defendant’s second claim raises evidentiary issues couched in constitutional terms that do not merit review; see State v. Ryan, 18 Conn. App. 602, 605, 559 A.2d 1156 (1989); and raises an issue of a violation of General Statutes § 54-91c that also does not merit review in its unpreserved state. See State v. Williams, 205 Conn. 456, 464, 534 A.2d 230 (1987). Finally, the defendant’s claims do not challenge actions that affected the fundamental integrity and fairness of the sentencing proceeding. See State v. Ralph, 17 Conn. App. 247, 249, 551 A.2d 774 (1989).

The judgment is affirmed.


text:
    State of Connecticut v. Michael Franzese
    (9479)
    (9484)
    Spallone, O’Connell, Norcott, Foti and Cretella, Js.
    Argued September 18
    decision released September 18, 1990

      DavidS. Golub, with whom was Tanina Rostain, for the appellant (intervenor Southern Connecticut Newspapers, Inc.).

      Christopher Rooney, with whom, on the brief, was J. Charles Mokriski, for the appellant (intervenor Cablevision of Connecticut Limited Partnership).

      JohnF. Kavanewsky, Jr., for the appellee (defendant).

      This decision was released from the bench following argument.

   Per Curiam.

The appellants, Southern Connecticut Newspapers, Inc., publisher of The Advocate, a daily-newspaper with circulation in lower Fairfield County, and Cablevision of Connecticut Limited Partnership, operator of a television outlet serving the same area, were granted permission to intervene in this matter to object to the defendant’s motion to close further bail proceedings from the public and the news media. They take this appeal, pursuant to General Statutes § 51-164x, from the decision of the trial court granting closure.

We have considered the record, briefs and arguments of counsel and are satisfied that the standards enunciated in Press Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986), apply. The defendant has failed to show that there is a substantial likelihood that irreparable damage to a fair trial will result from conducting public proceedings. Nor has he shown that alternatives to closure will not adequately protect his right to a fair trial, or that closure will be effective in protecting against the preceived harm.

The order of the trial court closing further bail proceedings is vacated.


text:
    Clifford Fee v. Leslie Carothers, Commissioner of Environmental Protection
    (8651)
    Daly, O’Connell and Cretella, Js.
    Argued October 1
    decision released October 23, 1990

      Charles J. Irving, for the appellant (plaintiff).

      David H. Wrinn, assistant attorney general, with whom were Robert B. Teitelman, assistant attorney general, and, on the brief, ClarineNardi Riddle, attorney general, and Joseph Rubin, assistant attorney general, for the appellee (defendant).
   Per Curiam.

The plaintiff applied to the commissioner of environmental protection for a permit to retain several structures he had erected without a permit and to undertake certain additional regulated activities. The commissioner denied his application, and the plaintiff appealed to the Superior Court. The commissioner moved to dismiss on the basis of the plaintiff’s failure to cite and serve all necessary parties to the appeal. The trial court granted the motion, and the plaintiff appealed to this court. We affirm the decision of the trial court.

The plaintiff’s first claim is that he complied with the provisions of General Statutes § 4-183 as amended by Public Acts 1988, No. 88-317, which he contends was in force at the time his action was “commenced.” This claim is dependent on a finding by this court that his action was “commenced” on July 11,1989, the return date of his complaint. To hold otherwise would be to find that the provisions of Public Acts 1988, No. 88-317, do not apply, since the action was served on the defendant prior to July 1,1989, the date on which Public Acts 1988, No. 88-317, became effective.

It is a well established rule in Connecticut that “an action is commenced on the date of service of the writ upon the defendant.” Valley Cable Vision, Inc. v. Public Utilities Commission, 175 Conn. 30, 33, 392 A.2d 485 (1978); see Martin v. Bristol Associates, 22 Conn. App. 625, 627, 557 A.2d 1138 (1990). Since the plaintiffs appeal was served on June 14, 1989, it was “commenced” before July 1,1989, and the provisions of Public Acts 1988, No. 88-317, do not apply. The plaintiffs first claim is therefore without merit.

The plaintiffs second claim is that any defects in his complaint and service are curable by amendment to the pleadings under the provisions of Public Acts 1988, No. 88-317. The plaintiff claims that the amendment provisions of that statute should be retroactively applied to his appeal since those provisions are procedural and not substantive.

In the recent case of Shapiro v. Carothers, 23 Conn. App. 188, 192, 579 A.2d 583 (1990), we followed the Supreme Court case of Tarnopol v. Connecticut Siting Council, 212 Conn. 157, 561 A.2d 931 (1989), in holding that the changes in General Statutes § 4-183 (b) were not retroactive but prospective. The plaintiffs contention that the failure to cite and serve all parties is a defect curable by amendment pursuant to Public Acts 1988, No. 88-317, is therefore without merit.

“ ‘The right to appeal from the decision of an administrative agency exists only under statutory authority. This right may be taken advantage of only by strict compliance with the statutory provisions by which it is created.’ ” Capozziello v. Board of Firearms Permit Examiners, 14 Conn. App. 376, 380, 540 A.2d 1075 (1988). “The failure to include a party defendant properly in the citation ‘is not a defect curable by amendment and renders the appeal subject to dismissal for want of jurisdiction.’ Newtown v. Department of Public Utility Control, 3 Conn. App. 416, 419, 488 A.2d 1286 (1985); Sheehan v. Zoning Commission, 173 Conn. 408, 413, 378 A.2d 519 (1977).” Shapiro v. Carothers, supra, 191 n.3. The plaintiff’s attempts to amend his appeal will not suffice to save it under General Statutes § 4-183 as it existed at the time of the appeal.

The judgment is affirmed.

       See General Statutes (Rev. to 1989) § 4-183. The plaintiff makes no attempt to argue that the appeal was improperly dismissed under the provisions of General Statutes § 4-183 (b) in effect prior to July 1, 1989. An assignment of error that is merely mentioned but not briefed beyond the mere statement of the claim is deemed abandoned and will not be reviewed. Cohen v. Security Title & Guaranty Co., 212 Conn. 436, 437 n.l, 562 A.2d 510 (1989).