author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. MARC PERUCCIO
    (AC 15626)
    Foti, Lavery and Freedman, Js.

      Argued September 15
    officially released November 25, 1997

      Kimball Haines Hunt, for the appellant (defendant).

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

LAVERY, J.

The defendant, Marc Peruccio, appeals from the judgment, rendered after a jury trial, convicting him of manslaughter in the first degree in violation of General Statutes § 53a-55 (a), and risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that the trial court improperly (1) denied his motion for a judgment of acquittal when the evidence was insufficient to support a verdict of guilty and (2) admitted into evidence testimony concerning injuries the child suffered when left in the exclusive care of the defendant. We disagree and affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The victim, Erik Pare, was bom on August 23, 1992, and died on September 2, 1993. He lived with his mother, Melanie Pare. The defendant had lived with the victim and his mother for a period of time ending in August, 1993. On occasion, the victim’s mother left the child in the care of the defendant. On one such occasion, Candy Resto, a neighbor of the Pares, observed bum marks on the child’s right little finger. When asked about the bum marks, the defendant replied that the child had burned his finger on a cigarette in an ashtray. When the victim’s mother inquired about the same bum marks, the defendant responded that the child had burned his finger when touching a light in a lizard cage at Resto’s home.

In August, 1993, prior to the child’s first birthday, the victim’s mother went out to a convenience store, leaving the child in the care of the defendant. Upon her return, she noticed blood on the child’s lip, cuts on the inside of his mouth, and blood on the door at the approximate height of the child’s face. The child was unable to walk at this time but could crawl and pull himself to stand. When asked about these injuries, the defendant responded that the child had crawled after the child’s mother when she left and then had fallen at the door.

On September 1, 1993, the victim had a scheduled physical examination with a pediatrician. No abnormalities were evident at that examination. That same day, the victim and his mother spent time with his grandmother who did not observe any marks on the child’s face or any irregular behavior. Upon returning home with his mother, the child fell on his back once and cried, but resumed normal activities after he stopped crying.

On September 2, 1993, the grandmother watched the child for several hours. No marks or irregular behavior on the part of the victim were noticed. After the victim ate dinner, the defendant came to care for the child while the child’s mother went shopping with a friend. The victim was put to bed by his mother at approximately 7 p.m. The defendant was informed by the victim’s mother that the child was tired and whiny because he was teething and had not taken a good nap. The victim’s mother left the house at approximately 7:30 p.m.

At approximately 8 p.m., Raleigh Johnson, who lived in Resto’s house, was standing outside talking to Mends and observed the defendant, who was carrying the victim, walk up the street and sit down. The -victim was being cradled by the defendant and appeared to be sleeping. After Johnson’s friends left, the defendant accompanied Johnson into Johnson’s house. Johnson and Resto heard the victim breathing heavily and asked if anything was wrong with him. The defendant replied that he did not know, that the child was possibly sick, that nothing was wrong, and that the victim was sleeping. A few minutes later the defendant left and returned to the victim’s home. At no time while inside Johnson and Resto’s home did the defendant put the child down.

At approximately 8:40 p.m., a paramedic unit was dispatched to the victim’s home to respond to a call concerning a baby who was not breathing. Upon arriving on the scene, the paramedic observed the victim on the floor with vomit in his mouth and the defendant on the phone with 911 dispatchers who were attempting to instruct him on how to perform CPR. The victim had no pulse and was not breathing. He was taken by ambulance to Manchester Hospital and examined by Ronald D’Angelo, an emergency room physician. The defendant told D’Angelo that the victim had choked while being fed, that his head had rolled back, and that he had stopped breathing. In the emergency room, a bruise on the victim’s forehead, a retinal hemorrhage and the dilation of one eye were observed. The victim’s condition did not change and attempts to resuscitate the victim ceased at 11:12 p.m.

Prior to going shopping on September 2, 1993, the victim’s mother had arranged the victim’s dirty clothing in various piles for laundering. At trial, the victim’s mother testified that the piles of clothing had been moved. In particular, the police investigation discovered a shirt with blood stains lying on top of one of the piles. The victim’s mother testified that at the time she went shopping, this shirt was inside a plastic bag next to the child’s crib. The state police forensics laboratory was unable to determine the type of blood on the shirt. The laboratory did discover, however, that the victim’s blood and the blood on the shirt both contained phosphoglucomutase one plus, indicating a possible match. In addition, the blood on the shirt was found to be mixed with saliva and epithelial cells, which line the mouth, throat, and digestive tract lining.

At trial, D’Angelo testified that the victim’s retinal hemorrhage was typical of the trauma associated with the shaking of a baby, but that trauma to the head of an infant can have the same effect as shaking. In addition, D’Angelo testified that the victim’s retinal hemorrhage and the dilation of one of his pupils were indications of a brain injury that had progressed to a dangerous or emergent point.

On September 3,1993, Thomas Gilchrist, an associate medical examiner, performed an autopsy on the victim. He testified that the autopsy revealed that the victim was well nourished and without chronic illness, and that there were small abrasions on the forehead, a bruise on the left cheek, superficial lacerations on the inside of the mouth, and a small area of bleeding due to a laceration under the upper lip. Gilchrist testified that due to an absence of scabs, in his opinion, the abrasions and lacerations were fresh. The autopsy also revealed a large number of hematomas, or accumulations of blood, located between the scalp and the skull and found on all sides of the victim’s head, which Gilchrist concluded were inflicted shortly before the victim’s death. In addition, the autopsy revealed small accumulations of blood between the dura, the thick membrane covering the brain, and the brain.

Gilchrist concluded that the cause of death was blunt trauma to the head. He also testified that the specific mechanism of death was brain swelling, or cerebral edema, incident to the trauma. The trauma could have been caused by either direct blows to the victim’s head or the striking of the victim’s head against a fixed object. Gilchrist further testified that in his opinion the injuries to the victim’s head were fresh. Although unable to determine the exact time of injury, he testified that in his experience, in the majority of cases, the blows resulting in cerebral edema occurred within the hour prior to the child’s arrival at the hospital. In addition, he testified that vomiting of the gastric contents is a part of the dying process.

I

The defendant first claims that the evidence produced at trial was insufficient to support the jury’s verdict finding him guilty of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1) or (3). This claim was raised in a timely fashion in the trial court by an unsuccessful motion for acquittal after the jury had rendered its verdict.

“We begin our analysis by restating the principles that guide and define the scope of our review. When called on to review a challenge to the sufficiency of the evidence to support a conviction, we undertake a two part analysis. . . . First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Cintron, 39 Conn. App. 110, 118, 665 A.2d 95 (1995).

“ ‘[W]e have repeatedly stated that our review of the conclusions of the trier of fact, whether it be a judge, a panel of judges or a jury, is limited. . . . This court will construe the evidence in the light most favorable to sustaining the trial court’s [judgment] and will affirm the conclusion of the trier of fact if it is reasonably supported by the evidence and the logical inferences drawn therefrom. . . . The probative force of direct and circumstantial evidence is the same.’ ” (Citations omitted.) State v. DeJesus, 236 Conn. 189, 200, 672 A.2d 488 (1996).

In deciding whether the defendant was responsible for the injuries that caused the child to die, the jury had both the right and the duty to rely on the evidence introduced and the inferences reasonably drawn therefrom. State v. Tucker, 181 Conn. 406, 418, 435 A.2d 986 (1980); State v. Avcollie, 178 Conn. 450, 456, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980); State v. Chapman, 46 Conn. App. 24, 35, 698 A.2d 347, cert. denied, 243 Conn. 947, 704 A.2d 800 (1997). “In viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Cintron, supra, 39 Conn. App. 119.

The evidence was sufficient for the jury to find that the defendant had the opportunity to commit the crime during the time when the child was in his exclusive care. The jury also had sufficient evidence before it to find that on September 2, 1993, when the mother left the child in the care of the defendant, the child was a normal, healthy one year old without bruises, scratches or any other abnormalities that might lead to death, that the child’s injuries were not caused accidentally, and that the child’s injuries resulting in his death occurred during the time when he was in the exclusive control of the defendant and were caused by the defendant.

“When there is evidence that . . . the injuries occurred while the child was in the sole [care] of the [defendant], the [jury] is permitted to infer not only that the child’s injuries were not accidental but that, in addition, they occurred at the culpable hands of [the defendant].” (Internal quotation marks omitted.) State v. Chapman, supra, 46 Conn. App. 34, quoting State v. Dumlao, 3 Conn. App. 607, 623, 491 A.2d 404 (1985). These were logical inferences that the jury could reasonably draw and from which the jury could find the defendant guilty beyond a reasonable doubt. State v. Dumlao, supra, 623.

We will not second guess the jury’s verdict on the basis of some vague, speculative or amorphous feeling that some doubt of guilt is shown by the cold printed record. State v. Chapman, supra, 46 Conn. App. 35. We have not had the jury’s opportunity to observe the conduct, demeanor and attitude of the witnesses, and to gauge their credibility. See id.

We conclude that the evidence presented at trial was sufficient to support the defendant’s conviction of manslaughter in the first degree.

II

The defendant next contests the admissibility of certain evidence that the trial court permitted the jury, with limiting instructions, to hear. At trial, testimony was offered by the victim’s mother and by a neighbor concerning injuries the child suffered on past occasions when left in the exclusive care of the defendant. None of those acts was directly related to the child’s death. The defendant took timely objection to those lines of testimony, contending that the evidence lacked relevance and was more prejudicial than probative.

The trial court instructed the jury that it could use this testimony only to establish intent, motive or a pattern of conduct on the part of the defendant. In addition, the trial court instructed the jury that it could not draw the inference that if the defendant did these things he is a bad person and more likely to have committed the crimes charged. Also, the jury was instructed that it could not infer that if someone had done something wrong in the past he is more likely to have done something wrong in this case.

The defendant argues here that the challenged testimony lacked any probative value and was irrelevant and prejudicial. The witnesses’ testimony concerned a bum that the child received on his finger while in the care of the defendant as to which the defendant gave two different explanations, and a cut on the child’s lip that he received while in the defendant’s exclusive care. While it is tme that those acts do not in and of themselves prove intent to cause serious physical injury, “they are relevant to establish, in connection with the question of intent, a pattern of behavior and an attitude toward the child that is indicative of the defendant’s state of mind.” State v. Tucker, supra, 181 Conn. 415.

“As a general rule, evidence of prior misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which the defendant is accused. . . . Such evidence cannot be used to suggest that the defendant has a bad character or a propensity for criminal behavior.” (Citations omitted.) State v. Kulmac, 230 Conn. 43, 60, 644 A.2d 887 (1994). Exceptions to the general rule exist, however, “if the purpose for which the evidence is offered is to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime.” (Internal quotation marks omitted.) State v. Adorno, 45 Conn. App. 187, 191-92, 695 A.2d 6, cert. denied, 242 Conn. 904, 697 A.2d 688 (1997); see State v. Figueroa, 235 Conn. 145, 162, 665 A.2d 63 (1995). “We have developed a two part test to determine the admissibility of such evidence. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. . . . Second, the probative value of the evidence must outweigh its prejudicial effect.” (Internal quotation marks omitted.) State v. Kulmac, supra, 61; State v. Figueroa, supra, 162.

“The primary responsibility for making these determinations rests with the trial court. We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” State v. Kulmac, supra, 230 Conn. 61; see also State v. Figueroa, supra, 235 Conn. 162-63; State v. Mooney, 218 Conn. 85, 127, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991).

We find no abuse of discretion on the record before us. The trial court gave instructions to the jury clearly limiting the use of this evidence to its bearing on intent, motive or pattern of conduct. The circumstances under which the crime allegedly took place effectively prohibited the state from presenting direct evidence and forced it to rely on probative inferences. State v. Tucker, supra, 181 Conn. 416. “In battered child cases, the youth of the victim and the tendency of other family members not to intervene . . . make reasonable the exercise of judicial discretion to allow evidence of prior abusive treatment of the child victim. . . . [T]he exercise of wise discretion requires the trial court to consider whether other evidence, equally probative and less prejudicial, was available to the state.” (Citations omitted.) Id., 416-17; State v. Wilson, 199 Conn. 417, 447, 513 A.2d 620 (1986). In this case, because the state lacked equally probative and less prejudicial evidence, additional support is given to the trial court’s decision. State v. Tucker, supra, 417; State v. Wilson, supra, 447.

In light of the inherent difficulties of the balancing process and the limiting instructions given to the jury, we are satisfied that the trial court did not abuse its discretion in concluding that the probative value of the evidence exceeded its prejudicial effect. Accordingly, we conclude that there was no abuse of the trial court’s discretion in its decision to admit evidence of prior instances in which the child suffered injuries while in the exclusive care of the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person ... or (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       General Statutes (Rev. to 1993) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       At trial, Resto testified that the lizard cage was four and one-half feet off the ground and that it was not possible for a child to gain access to the light in that cage.

       The defendant’s chief argument on appeal is that the testimony of his expert witness concerning brain injuries was enough to counter Gilchrist’s test imony. That is a question of credibility. We find no merit in that argument.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ALLEN ALTERISI
    (AC 16160)
    Landau, Schaller and Spear, Js.
    Argued September 18
    officially released November 25, 1997

      Robert M. Casóle, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David Strollo, assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of five counts of sexual assault in the first degree in violation of General Statutes § 53a-70 and six; counts of risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that the trial court improperly granted the state’s motion to videotape the minor victims’ testimony outside the defendant’s physical presence pursuant to General Statutes § 54-86g. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 1990, the defendant was living in Meriden with his girlfriend, A, and her two sons, B, age five, and D, age three. During the two years that the defendant lived with A, he often took care of the children while she worked as a waitress in the evenings. In January, 1992, A lost custody of the boys due to her substance abuse and psychiatric problems. The children were sent to live with A’s sister and brother-in-law, who became the boys’ custodial guardians. B and D remained at the home of their aunt and uncle in Meriden for four years.

When the boys arrived at the home of their aunt and uncle, they exhibited unusual behavior. The aunt and uncle and school officials noticed that the boys were very aggressive, punching and hitting each other and other adult males in the groin. This behavior and other incidents prompted the aunt and uncle to take the boys to a child therapist at the Child Guidance Clinic in Meriden (clinic).

In February, 1992, the boys began attending weekly counseling sessions with Steven Thermes, a social worker at the clinic. In individual counseling sessions, both children expressed a strong fear of the defendant. They stated that he hit them, locked them out of the house in the cold weather, and forced them to urinate and defecate outdoors. In February, 1993, the boys first disclosed to Thermes that they had been sexually assaulted by the defendant. Both boys revealed that, among other actions, the defendant had touched their genitals with his hand. The children appeared relieved to have disclosed this information to Thermes. The following week, Thermes reported the allegations to the Meriden police.

On February 26, 1993, the children were separately interviewed by Detective Gary Brandi of the sex crimes unit of the Meriden police department. B and D both asserted that the defendant had undressed them and touched their genitals on numerous occasions when their mother was at work. Each provided graphic detail about the incidents. The boys stated that some of the activity took place in the presence of both brothers. During their interviews, Brandi showed each boy a series of anatomically correct drawings depicting figures of an adult male and a young boy. With the aid of these drawings, each child described the defendant’s conduct. They also stated that the defendant had threatened to hurt them and their mother if they told anyone about these regular occurrences.

At trial, the state introduced, over the defendant’s objection, videotaped testimony of B and D that was taken outside the physical presence of the defendant. Both boys testified that the defendant had touched them on their penises and rectal areas, and that they had been forced to do the same to the defendant. The state also presented constancy of accusation evidence from Thermes and Brandi, as well as testimony from the boys’ mother and aunt. Following his conviction, the defendant appealed.

The defendant claims that the trial court improperly granted the state’s motion to videotape the testimony of B and D outside his physical presence, thereby violating his right of confrontation and right to due process of law under the fifth, sixth and fourteenth amendments to the United States constitution, under article first, § 8, of the Connecticut constitution, and under § 54-86g.

Prior to trial, the state moved for permission to videotape the testimony of B and D outside the presence of the defendant pursuant to § 54-86g (a). An evidentiary hearing was held before the trial court, Licari, J., to determine if there was a compelling need for the state’s request. At the hearing, the state first presented testimony from the boys’ uncle who testified that D, the younger boy, was “very upset” about coming to court and having to speak in front of the defendant. When the uncle tried to discuss the matter with D, the child told him that “he had been threatened and he was fearful . . . of violent harm . . . .” Because D was “deathly afraid” of the defendant, the uncle believed that D could not testify candidly about the allegations in the defendant’s presence. The uncle stated that B had exhibited a similar fear of testifying before the defendant and had become so worried over the prospect that it affected his schoolwork. As with D, the uncle believed that B could not testify candidly in the presence of the defendant.

The state also introduced the testimony of Sally Tomczak, a social worker and director of the clinic in Meriden. The state had asked Tomczak to evaluate the boys’ capacity to testify before the defendant. She testified that D was so frightened of the defendant that it would be “impossible” for him to testify in the defendant’s presence. “I think if [¶] is] going to be able to talk at all it’s going to be outside the presence of [the defendant] . . . .” Tomczak also believed that B was too upset to testily in the presence of the defendant and that “he might be able to say a few things but I don’t think he would be able to give any details or any accurate testimony about what happened to him, he’s too afraid.” On the basis of the testimony of the uncle and Tomczak, the trial court granted the state’s motion over the objection of the defendant.

“[I]n criminal prosecutions involving the alleged sexual abuse of children of tender years, the practice of videotaping the testimony of a minor victim outside the physical presence of the defendant is, in appropriate circumstances, constitutionally permissible. ... [A] trial court must balance [in a case-by-case analysis] the individual defendant’s right of confrontation against the interest of the state in obtaining reliable testimony from the particular minor victim in question. . . . [The] trial court must determine, at an evidentiary hearing, whether the state has demonstrated a compelling need for excluding the defendant from the witness room during the videotaping of a minor victim’s testimony. In order to satisfy its burden of proving compelling need, the state must show that the minor victim would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that the trustworthiness of the victim’s testimony would be seriously called into question. . . . [T]he state bears the burden of proving such compelling need by clear and convincing evidence.” (Citation omitted; emphasis added.) State v. Jarzbek, 204 Conn. 683, 704-705, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988).

The defendant asserts that the evidence presented at the hearing was insufficient to support the trial court’s conclusion that the Jarzbek standards were satisfied with regard to the videotaped testimony of each victim. In essence, however, the defendant is challenging the credibility of the state’s witnesses when he claims that Tomczak’s opinions were “not creditable” and were “clearly shaped by her own bias,” or that the uncle’s testimony “increased the risk of unfairness in the hearing process . . . .” Our Supreme Court has stated that “[i]t is in the sole province of the trier of fact to evaluate expert testimony, to assess its credibility, and to assign it a proper weight.” Id., 706. Thus, the defendant’s claims regarding the credibility of the state’s witnesses are not germane on appeal.

The function of this court on appeal is limited to determining whether the decision of the trial court is clearly erroneous. Practice Book § 4061; State v. Spigarolo, 210 Conn. 359, 374-75, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). In this case, the trial court expressly articulated the findings mandated by Jarzbek at the close of the evidentiary hearing: “[T]he state has met its burden of proof, that is, by clear and convincing evidence, that the compelling need exists to exclude the defendant during the testimony of the minor victims in order to preserve the accuracy and reliability of each of the alleged minors. The state has shown through its evidence that each minor victim would be so intimidated by the physical presence of the defendant that the trustworthiness of each witness’ testimony would be seriously called into question. In reaching its conclusion, the court has focused on the reliability issue and not on the issue of the well-being of each victim.”

In reviewing whether the trial court’s factual findings were clearly erroneous, “[w]e are not limited ... to reviewing only the evidence before the trial court at the time of the ruling. Because the defendant’s fundamental constitutional right to confront the witnesses against him is implicated, we may consider all the evidence in the record.” State v. Darby, 19 Conn. App. 445, 453-54, 563 A.2d 710, cert. denied, 213 Conn. 801, 567 A.2d 833 (1989). Our review of the entire record fully supports the trial court’s finding that a compelling need existed to videotape the testimony of B and D outside the presence of the defendant to assure the reliability of their testimony. We conclude, therefore, that the trial court properly permitted the state to videotape the testimony of the minor children outside the presence of the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 54-86g. Testimony of victim of child abuse. Court may order testimony taken outside courtroom. Procedure, (a) In any criminal prosecution of an offense involving assault, sexual assault or abuse of a child twelve years of age or younger, the court may, upon motion of the attorney for any party, order that the testimony of the child be taken in a room other than the courtroom in the presence and under the supervision of the trial judge hearing the matter and be televised by closed circuit equipment in the courtroom or recorded for later showing before the court. Only the judge, the defendant, the attorneys for the defendant and for the state, persons necessary to operate the equipment and any person who would contribute to the welfare and well-being of the child may be present in the room with the child during his testimony, except that the court may order the defendant excluded from the room or screened from the sight and hearing of the child only if the state proves, by clear and convincing evidence, that the child would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that a compelling need exists to take the testimony of the child outside the physical presence of the defendant in order to insure the reliability of such testimony. ...”


author: HEALEY, J.

text:
    STATE OF CONNECTICUT v. ROBERT TORRES
    (AC 15795)
    Lavery, Landau and Healey, Js.

      Argued May 30
    officially released December 2, 1997

      Mark Rademacher, assistant public defender, for the appellant (defendant).

      Robert J. Scheinblum, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Rosita M. Creamer, senior assistant state’s attorney, for the appellee (state).
   Opinion

HEALEY, J.

The defendant, Robert Torres, was tried before a jury on an information consisting of five counts. The first count charged the defendant with the crime of conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a which conspiracy resulted in the death of Glenroy Gordon. The second count charged the defendant with the crime of murder in violation of General Statutes § 53a-54a, alleging that “with intent to cause the death of Glenroy Gordon, [the defendant] caused the death of Glenroy Gordon by shooting him.” The third count charged the defendant with the crime of criminal attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (l), alleging that when “acting with the intent to cause a serious physical injury to another person, [he] performed a substantial step in the course of conduct planned to culminate in the commission of the crime, to wit: arming himself with a deadly weapon, going to Allen Drive, and shooting one Will Little.” The fourth count charged the defendant with the crime of assault in the second degree with a firearm in violation of General Statutes §§ 53a-60a and 53a-60 (a) (2), alleging that “with intent to cause physical injury to another person, [he] caused such injury to Will Little by using a firearm.” The fifth count charged the defendant with the crime of risk of injury to a child in violation of General Statutes § 53-21.

After a jury trial, the defendant was convicted on the first, third and fifth counts. Thereafter, he was sentenced to twenty years on the first count, twenty years on the third count and ten years on the fifth count with the sentences on each to run consecutively, thus resulting in an effective sentence of fifty years.

On appeal, the defendant claims that (1) there was insufficient evidence to support his conviction for the attempted assault charged in the third count and (2) the trial court improperly instructed the jury on the doctrine of transferred intent with regard to the third count. Our resolution of the first claim makes it unnecessary for us to reach the second claim.

The jury reasonably could have found the following facts. On August 7, 1993, at approximately 8 p.m., Gordon was standing near Allen Drive in Hartford and was holding the hand of Tiffany Rodriguez, a four year old girl. Delroy Stone, Wilbur Jolly and Little were also there. Tiffany Rodriguez’ mother, Nancy Rodriguez, was sitting in front of her house on the opposite side of Allen Drive. A 1981 Plymouth Grand Fury car came slowly down Allen Drive. Four persons were in that car, all wearing hooded sweatshirts. The defendant was sitting on the door out the window of the passenger side holding, on the roof of the car, an automatic gun estimated to be about two feet long with a clip extending downward estimated to be about nine inches long. In that position, the defendant, also known as B-Boy, was facing toward Gordon. The state’s witnesses, Nancy Rodriguez, Stone and Jolly, all testified that the defendant started shooting toward Gordon, who then fell to the ground. Before Gordon did so, however, he shouted at Tiffany Rodriguez to run, which she did. Jolly saw Little get shot in the leg. Little was later found with a wound in his upper right leg by a Hartford police officer. Many shots were fired as the Grand Fury moved “very slowly.”

There was, however, evidence from Detective James Rovella of the Hartford police department, who interviewed the defendant on June 4, 1994, that gave the jury another perspective on who shot at Gordon. According to Rovella, the defendant admitted that he was in the Grand Fury from which shots were fired toward Gordon on Allen Drive on August 7, 1993. With him in that car were Carlos Ortiz (Mad Dog), who was driving, Diego Lopez (Hippy), who was sitting on the door out the window in the front passenger side, and an individual known as Smiley, who was in the back seat with the defendant. The defendant told Rovella that three of the persons in that car were armed, but that he was not armed. Ortiz had a nine millimeter weapon, Lopez had a Mack 10 semiautomatic, and Smiley had a Tech 9 weapon.

The defendant took part in the planning and executing of a plan to do a “hit” on Allen Drive on a member of Twenty Love, a rival gang. A “hit” is a shooting and murder. The plan was formulated at a Latin Kings meeting in a garage on Webster Street in Hartford with the orders for the planned incident coming from Melvin Castro. The garage had been rented by Castro. The planned incident, the defendant told Rovella, arose out of a dispute between Twenty Love and the Latin Kings over a gun and a backpack. At the time of the shooting of August 7, 1993, Gordon had not actually been accepted as a member of Twenty Love, but was “going to be.” The plan involved a three car operation. One car would go up Coleman Drive, turn left onto Allen Drive and be posted at the west end of Allen Drive. The second car was the Grand Fury, which was driven down Allen Drive and from which the shooting was done. The third car was posted on the east end of Allen Drive. After the shooting, the occupants of the Grand Fury exited it with their weapons, left the area and returned to the garage on Webster Street for a short time. They then went to a pizza shop on the comer of Park and Wolcott Streets in Hartford where they had a “celebration” of pizza and beer purchased by Castro, who said “it was in return for a job well done.”

Mark Castagna, a Hartford police officer, was nearby on Flatbush Avenue in his police cruiser with his partner when he heard gunshots at approximately 8 p.m. on August 7, 1993. Castagna proceeded to Allen Drive where he found Gordon with what appeared to be a bullet hole in his head. Emergency medical personnel responded, and Gordon was taken to Hartford Hospital. Castagna noticed bullet casings at the scene. Aware that a casing is discharged when an automatic or semiautomatic weapon is fired, he proceeded to rope off the scene with yellow crime scene tape. Hartford Police Detective Raymond Cruz, an evidence technician, found twenty-nine shell casings that were of different brands of ammunition. There were seventeen Winchesters, ten Norencos and one Frontier that were for nine millimeter weapons, as well as one PMC that was for a ten millimeter weapon. James Jachimowicz, employed by the Connecticut state police at the forensic science laboratory as a firearm and tool mark examiner, examined those casings. It was his opinion that “[t]he ten Norencos were fired from the same firearm, but they were not fired from the same firearm as the other eighteen nine millimeter fired cartridge cases.” Jachimowicz received another PMC cartridge case after having received one PMC cartridge case, and it was his opinion that it was “actually impossible that these ten millimeters could have been fired in the same firearm as the nine millimeters.” The two bullet fragments recovered at the autopsy could not be linked to any particular casing because the jacketing material was missing so that there was “no way” that Jachimowicz could “determine whether these two bullets were fired from the same firearm.” The casings and the fragments given to Jachimowicz “could have come from anywhere from three to five guns.”

On appeal, the defendant claims that there was insufficient evidence to support his conviction under the third count of attempted assault in the first degree of Little. In doing so, he maintains that the state failed to prove that he had the requisite intent to harm Little and that the doctrine of transferred intent cannot be utilized to supply the intent necessary for a conviction of attempted assault in the first degree under General Statutes §§ 53a-49 and 53a-59.

The state, on appeal, in arguing to sustain the conviction on the third count, claims that the intended victim in that count was actually Gordon, not Little. This position is irreconcilable with the state’s theory at trial as to the third count. The state’s theory of the case at trial is evident, as we will point out, not only from its presentation of evidence and argument to the jury but also from its position as to the trial court’s jury instructions concerning the third count.

The thrust of the state’s case at trial with regard to Gordon was that the defendant conspired to murder Gordon, as the first count specifically charged, and that he did murder Gordon, as the second count specifically charged. The jury found the defendant guilty of the conspiracy and not of the murder. On appeal, the state now claims that the intended victim in the third count was Gordon. To understand more fully the position of the state at the trial, certain additional circumstances must be set out.

Count one, conspiracy to commit murder, and count two, murder, of the information explicitly specify Gordon as the alleged and indeed actual target. Count three, on the other hand, does not mention Gordon at all, but does mention Little. That count alleges that while “acting with the intent to cause a serious physical injury to another person [who is unnamed], the defendant performed a substantial step in the course of conduct planned to culminate in the commission of the crime, to wit: arming himself with a deadly weapon, going to Allen Drive and shooting one Will Little.” (Emphasis added.) In count four, the state returns to its posture, as it did in counts one and two, and specifies the person injured (Little) by the defendant’s alleged assault on him with a firearm. The state continues its posture of specifying the alleged victim in the fifth count where it names Tiffany Rodriguez as the alleged victim of the defendant’s conduct under the risk of injury to a child charge. Thus, in its five count information, it is only in the challenged third count that the alleged victim is not explicitly named. It is the “another person” language, without explication in that count, that has germinated into the crucial issue in this matter. The defendant reasonably believed that the “another person” in that count referred to Little.

During final arguments to the jury, the state went into great detail about its claims under the murder and conspiracy to murder counts, but said very little as to the remaining three counts (the third, fourth and fifth). It did, however, say that “with respect to Mr. Little, the state does not claim that the injury to him constitutes a serious physical injury as defined by our statutes. And the judge is going to tell you what the elements of the various offenses are, but you’ll understand when you hear his explanation that is why the defendant is charged in connection with this shooting of Will Little with attempted assault in the first degree, the essence of which is attempting to cause a serious physical injury with a deadly weapon by shooting him. And . . . the defendant is also charged with assault in the second degree with a firearm. That is for actually causing a physical injury, albeit not a serious one. And the judge will explain these offenses to you.” This language, combined with the absence of any reference to Gordon, contributed to the perception that Little was the victim in the third count.

A more compelling aspect of the state’s overall presentation that reasonably led the defendant, the court and the jury to believe that the “another person” in the third count was Little, not Gordon, was the state’s inaction and standing mute when the court charged the jury that “if you are not satisfied beyond a reasonable doubt that the defendant was the shooter of Will Little, then you are required to return a verdict of not guilty as to count three.” This perception was compounded when, during its deliberations, the jury sent a note saying that it wanted an explanation of counts three and four. The court started its recharge on these two counts by saying: “You’ll recall I told you yesterday that counts three and four deal with Will Little. He is the alleged victim of the misconduct committed against him. Mr. Will Little.” (Emphasis added.) Shortly thereafter, in the same recharge, the court said, “Now the essence of this count [three] charges that the defendant went to Allen Drive, Hartford, on August 7, 1993, at or about 8 p.m. with the intent to cause serious physical injury by arming himself with a deadly weapon and shooting Will Little in the left buttock.” (Emphasis added.) Again, the state said nothing, nor did the defendant, to correct the trial court as to this recharge. Not only the defendant, but “the prosecution has the responsibility to avoid error by making appropriate objections.” See State v. Klose, 334 N.W.2d 647, 651 (N.D. 1983). Certainly, the defense cannot be faulted for not objecting as there was a reasonable basis for it to believe that the state had been and still was treating the third count as directed to Little.

Moreover, the state’s scenario on appeal makes no sense when we consider that the third count charges an attempted crime and the “victim” (Gordon, according to the state) was actually killed. One wonders why the state would charge the defendant with attempt to assault a victim (who was killed) in the same information in which the defendant was charged with murdering that victim.

The state, as the defendant claims, has attempted on appeal to change its theory of the case from that which it pursued at the trial. To countenance such a course, the defendant argues, would violate his constitutional rights under due process by affirming a conviction obtained on the basis of a theory not presented to the trial jury.

This view is foreshadowed in United States Supreme Court jurisprudence by such cases as Cole v. Arkansas, 333 U.S. 196, 68 S. Ct. 514, 92 L. Ed. 644 (1948), and Chiarella v. United States, 445 U.S. 222, 100 S. Ct. 1108, 63 L. Ed. 2d 348 (1980). In Cole, the court agreed with the petitioner’s argument that “[t]o sustain a conviction on grounds not charged in the information and which the jury had no opportunity to pass upon, deprives the defendants of a fair trial and a trial by jury, and denies the defendants that due process of law guaranteed by the 14th Amendment to the United States Constitution.” (Emphasis added; internal quotation marks omitted.) Cole v. Arkansas, supra, 200. More to the point, the Cole court said that “[t]o conform to due process of law, petitioners were entitled to have the validity of their convictions appraised on consideration of the case as it was tried and as the issues were determined in the trial court.” Id., 202; see Presnell v. Georgia, 439 U.S. 14, 16, 99 S. Ct. 235, 58 L. Ed. 2d 207 (1978).

In Dunn v. United States, 442 U.S. 100, 106, 99 S. Ct. 2190, 60 L. Ed. 2d 743 (1979), where there was no variance between the indictment and proof at trial, “there was a discrepancy between the basis on which the jury rendered its verdict and that on which the [Tenth Circuit] Court of Appeals sustained [the defendant’s] conviction.” In referring to this discrepancy, Dunn said that “[t]o uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process.” Id. It also said that “appellate courts are not free to revise the basis on which a defendant is convicted simply because the same result would likely obtain on retrial.” Id., 107. Later, the court said in Chiarella, “[W]e cannot affirm a criminal conviction on the basis of a theory not presented to the jury, Rewis v. United States, 401 U.S. 808, 814 [91 S. Ct. 1056, 28 L. Ed. 2d 493] (1971), see Dunn v. United States, [supra, 106] . . . .” Chiarella v. United States, supra, 445 U.S. 236.

An instructive opinion for this case is that of the United States Court of Appeals for the First Circuit in Cola v. Reardon, 787 F.2d 681 (1st Cir.), cert. denied, 479 U.S. 930, 107 S. Ct. 398, 93 L. Ed. 2d 351 (1986). In Cola, a habeas corpus proceeding, the petitioner had been convicted after a jury trial in the Massachusetts Superior Court. He was given a prison sentence and a fine. On appeal to the Massachusetts Appeals Court, his convictions were affirmed, and the Massachusetts Supreme Judicial Court denied further review. Neil Cola filed a habeas petition in the United States District Court essentially claiming that he had been denied due process because the state appellate court had affirmed his conviction under the relevant statute on grounds that were never specified in the indictment or presented to the jury. He also claimed that the trial court’s jury charge was faulty in that it did not frame the charge in terms by which the jury could have found him guilty under the relevant statute. The District Court denied habeas relief finding that “the theory of guilt upon which the state appeals court affirmed had been set forth in the indictment and at trial.” (Emphasis in original.) Cola v. Reardon, supra, 684.

The First Circuit in Cola said, “[W]e . . . hold that Dunn requires the appellate theory to be set forth in both the indictment and the case presented to the jury.” (Emphasis in original.) Id., 696. That court reasoned that “in addition to notice, due process requires a trial in which criminal defendants are able to confront the government’s case. See Jackson v. Virginia, 443 U.S. 307, 314, 99 S. Ct. 2781, 2786, 61 L. Ed. 2d 560 (1979) . . . .” Cola v. Reardon, supra, 787 F.2d 696. The Cola court aptly pointed out that the Dunn court recognized that “while evidence fully supporting the [government’s] appellate theory had been before the jury, the prosecution had not ‘built its case’ on such evidence. Dunn, supra, 442 U.S. at 107 .... Accordingly, noted the [Dunn] Court, the offense had not been defined in terms of the appellate theory, and hence, the presence of such unexplained evidence would not reinstate due process.” (Emphasis in original.) Cola v. Reardon, supra, 699. Because the prosecution in Cola’s case had not built its case on the evidence supporting its appellate theory and had left such evidence unexplained, the presence of that evidence, Cola held, was irrelevant to the due process violation in that case. Id., 700. The Cola court concluded that “Cola has established lack of notice as to the [state’s] appellate theory . . . .” Id., 702. “The lack of notice here, under [the state’s claim of] harmless variance analysis [which was rejected], suffices to violate due process.” Id. It is clear that, quite apart from the failure of notice from the indictment to make a defendant aware of what he has to defend against at trial, a separate and distinct violation of due process will occur where “without specification at trial of the appellate theory, [an appellate court] can neither be sure that defendants ever recognized, much less defended against, the final [state] rationale of guilt.” (Emphasis added.) Id., 701; see also State v. Wulff 207 Wis. 2d 144, 152, 557 N.W.2d 813 (1997).

Here, as the state’s case went in, as the state argued to the jury and as the trial court charged the jury, the defendant could and did understand that Little was the “another person” whom the defendant was charged with having attempted to assault in the first degree, and not Gordon, as the state argues on this appeal. The defendant’s belief at trial was reasonable under the circumstances. The state is attempting on this appeal to have this court review and decide the appeal not on the theory it pursued at trial and on which the challenged conviction was obtained, but on a new theory that it advances for the first time on appeal. The state cannot do so.

This brings us to the defendant’s insufficiency of the evidence claim. The defendant did not make any claim of insufficient evidence in the trial court. He now seeks review of it under the Golding doctrine. See State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Our Supreme Court has said that “Jackson v. Virginia, [supra, 443 U.S. 307] compels the conclusion that any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding. There being no practical significance, therefore, for engaging in a Golding analysis . . . [the Supreme Court reviewed] the defendant’s challenge to his conviction [for insufficient evidence] . . . .” State v. Adams, 225 Conn. 270, 276 n.3, 623 A.2d 42 (1993); State v. Adorno, 45 Conn. App. 187, 194, 695 A.2d 6, cert. denied, 242 Conn. 904, 697 A.2d 688 (1997); State v. Laws, 37 Conn. App. 276, 281, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995).

“Our Supreme Court has stated: In reviewing [a] sufficiency [of evidence] claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994), quoting State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993); State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991); State v. Weinberg, 215 Conn. 231, 253, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990).” (Internal quotation marks omitted.) State v. Ingram, 43 Conn. App. 801, 809, 687 A.2d 1279 (1996), cert. denied, 240 Conn. 908, 689 A.2d 472 (1997); State v. Laws, supra, 37 Conn. App. 281.

“Both § 53a-49 (a) (1) and (2) require that the state prove both intent and conduct to sustain a conviction.” State v. Gilchrist, 25 Conn. App. 104, 110, 593 A.2d 507, cert. denied, 220 Conn. 905, 593 A.2d 970 (1991). Our Supreme Court has said: “There are two essential elements of an attempt under this statute. They are, first, that the defendant had a specific intent to commit the crime as charged, and, second, that he did some overt act adapted and intended to effectuate that intent.” State v. Mazzadra, 141 Conn. 731, 734, 109 A.2d 873 (1954). “[T]he attempt is complete and punishable, when an act is done with intent to commit the crime, which is adapted to the perpetration of it, whether the purpose fails by reason of interruption ... or for other extrinsic cause.” (Internal quotation marks omitted.) State v. Green, 194 Conn. 258, 276, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985); State v. Wilson, 30 Conn. 500, 506 (1862).

At trial, the state presented no evidence of the defendant’s intent as to Little. There is no evidence that the defendant even knew Little or knew that Little was at the scene of the shooting. The defendant’s June 4,1994 statement, taken about ten months after the shooting, does not refer to Little. Detective Rovella, who took the statement from the defendant, did not testify concerning the defendant’s “knowledge” of Little.

The state put on Delroy Stone, an eyewitness to the shooting, and questioned him regarding Little as follows:

“Q. Now you said that Will Little is someone that was there, is that correct?
“A. Yeah.
“Q. And did you see where Will Little ran?
“A. No.
“Q. Okay. Did you see Will Little again in a short while?
“A. Yes.
“Q. Where did you meet up with him?
“A. After everything went down to Flatbush down there they have an ambulance down there, everything.
“Q. You saw him on Flatbush Avenue where the ambulance came to?
“A. Yeah.
“Q. Okay. Did you see any wounds on him?
“A. At that time yeah, he got a wound on his butt.
“Q. Okay. And was it on the left side or the right side, if you remember?
“A. I don’t quite remember.”

The state also showed Stone a photograph of Little, and Stone identified it as a photograph of Little.

The state thereafter put on the eyewitness Wilbur Jolly and questioned him about Little as follows:

“Q. Do you know someone by the name of Will Little?
“A. Yes. Chill.
“Q. What’s the name that you call him, Chill?
“A. Chill Will, yes.
“Q. Was he there [on Allen Drive]?
“A. Yes ... .
“Q. What did you see when you ran?
“A. Then I see my boy Chill get shot.
“Q. Did you see where he got shot on his body?
“A. In the leg.
“Q. Could you see who was doing the shooting?
“A. Yes.
“Q. Who? Who are you pointing at?
“A. B-Boy.
“Q. That’s the person known as Robert Torres?
“A. Yeah.”

In addition, the state put on Hartford police officer Brian Heavren who was in the area and, upon hearing gunshots, came and, in the course of checking the area, found Little in the rear of a building on Flatbush Avenue. He took Little to the hospital at that time. The state also put on Linda Crabbe, the physician who treated Little at the hospital on the night of the shooting. Neither of these witnesses testified about anything relating to the circumstances surrounding Little’s shooting. Significantly, the treating physician, Crabbe, was not asked by the state about the seriousness of Little’s injury. Without evidence that the defendant knew Little or knew of his presence on Allen Drive, the jury cannot have had a basis to find that the defendant possessed the required intent to injure Little seriously.

Moreover, at trial, the state presented no alternative evidentiary basis for proving the required intent for the assault of Little under the third count. Although the court did charge on transferred intent, the state, in its brief, stated that “no theory of transferred intent was placed before the jury. The state never argued to the jury that it should utilize transferred intent to convict the defendant of attempted assault. . . . [Transferred intent is simply not necessary because injury is not an essential element of criminal attempt. . . . [Transferred intent is not needed to convict a defendant whose aim was poor of attempted assault. . . . [T]he defendant’s injection of ‘transferred intent’ into this appeal is misleading.” “The issue in this appeal is not whether the doctrine of ‘transferred intent’ applies to attempt liability generally. The state agrees it does not.” (Emphasis in original.) “The defendant’s injection of transferred intent into this appeal is a red herring because transferred intent was irrelevant to the defendant’s attempt to assault Gordon, not Little.” “The court’s explanation of transferred intent was only incidental to explaining the elements of assault in the first degree to the jury . . . .” “Moreover, in the context of the charge as a whole, the evidence presented, and the state’s closing argument, the jury necessarily understood that transferred intent was not the basis of the charge of criminal attempt.” These statements from the state’s brief are disingenuous keeping in mind that the state did not object to or seek clarification of the trial court’s instructions on transferred intent.

The state also suggests that “simultaneous intention” supports the claim that Gordon was the victim in the third count just as he was in the second count charging murder and in the first count charging conspiracy to commit minder, and there it refers to State v. Williams, 237 Conn. 748, 757, 679 A.2d 920 (1996). It is true that Williams said: “We conclude that, under the appropriate circumstances, a defendant can simultaneously intend to cause the death of, and intend to cause serious physical injury to, the same victim.” Id. In Williams, the court found the trial court’s instruction to that effect to be proper under the circumstances of that case. Williams, however, is not this case. In Williams, the trial court specifically charged on “simultaneous intention.” Here, it did not. This alone serves to distinguish the present case.

There is no question but that the defendant went to Allen Drive on the night of the shooting with his confederates as the result of the earlier planned objective of killing Gordon. As the state presented its case, there was no claim that the defendant intended to cause serious physical injury to Gordon. The state claimed that the defendant actually murdered Gordon, but the jury found otherwise. The crime of attempted first degree assault, from the state’s posture at trial as set out earlier, demonstrates that it truly regarded Little, not Gordon, as the victim in that count. We have already set out the state’s evidence adduced against the defendant vis-a-vis Little as the victim the third count. It is totally insufficient to prove that the defendant had the requisite intent necessary for conviction in that count. That conviction violates this defendant’s federal constitutional due process rights.

It is concluded that, when evaluated under the appropriate standard, the evidence in this case is constitutionally insufficient to support the defendant’s conviction of attempted assault in the first degree.

The judgment as to the third count is reversed and the case is remanded with direction to render judgment of acquittal as to the third count.

In this opinion the other judges concurred.

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

        General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception . . .

       General Statutes § 53a-49 provides in relevant part: “(a.) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned 1o culminate in his commission of the crime.
      “(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) of this section unless it is strongly corroborative of the actor’s criminal purpose. . . .”
      General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person ....’’

       General Statutes § 53a-60 (a) provides in relevant part: “A person is guilty of assault in the second degree when ... (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”
      General Statutes § 53a-60a (a) provides: “A person is guilty of assault in the second degree with a firearm when he commits assault in the second degree as provided in section 53a-60, and in the commission of such offense he uses or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, machine gun, shotgun, rifle or other firearm. No person shall be found guilty of assault in the second degree and assault in the second degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.”

         General Statutes (Rev. to 1993) § 53-21 provides in relevant part: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       In addition to having been described by one witness of the shooting as an “automatic gun,” another witness described it as having a “long barrel.” The police never recovered any weapon.

       No witness of the shooting testified that any of the other occupants of the Grand Fury fired any shots.

       The defendant did not testify at the trial. Rovella wrote a report on the June 4, 1994 interview, which was initiated by the defendant.

       Lopez was president of the Hartford chapter of the street gang called Latin Kings.

       Tech 9s and Mack 10s are “machine pistols” that are “larger than a handgun, smaller than a rifle.”

       The information about the planning and execution of the “hit” came into evidence at the trial through Rovella, who related what the defendant had told him of it during their June 4, 1994 interview.

       As a result of information given to Rovella by the defendant in the June 4,1994 interview, Rovella found the Grand Fury used in the shooting behind a Hartford funeral home next to Carlo Ortiz’ former home. The car had been spray painted black and did not appear to have been professionally painted. The car had been described as dark blue as of August 7, 1993.
      Rovella secured this car and later obtained a search warrant for it. In his search of it, he found a ten millimeter expended shell casing under the backseat, which was sent to the state forensics laboratory for comparison with the casings that were found on the night of the shooting.

       Cruz also attended the autopsy performed on Gordon where he was given two bullets from Gordon’s body.

       This was so, according to Jachimowicz, “because the jacket would have all the accidental marks that I would be looking for, all of the class characteristics where I could say that these are consistent with the same manufacturer are actually all gone. So what I have is I have two pieces of lead, and that’s about as far as I can go with the conclusions.”

       This instruction came immediately after the trial court instructed the jury: “Now if you are not satisfied beyond a reasonable doubt that the defendant was the shooter of Glenroy Gordon, then you are required to return a verdict of not guilty as to count two, charging murder.”

       “A supplemental charge . . . enjoy[s] special prominence in the minds of the [jurors] because it is fresher in their minds when they resume deliberation.” (Internal quotation marks omitted.) State v. Fletcher, 10 Conn. App. 697, 702, 525 A.2d 535 (1987), aff'd, 207 Conn. 191, 540 A.2d 370 (1988), quoting Arroyo v. Jones, 685 F.2d 35, 39 (2d Cir.), cert. denied, 459 U.S. 1048, 103 S. Ct. 468, 74 L. Ed. 2d 617 (1982).

       In addition, the District Court decided that, since the petitioner had not objected to the jury instructions when given, he had clearly waived any right to object under Massachusetts law. On appeal, the First Circuit Court of Appeals basically disposed of this facet by saying that “[c]onsideration by us of the charge ... is not for the purpose of finding error in it, but rather, in the limited context of due process challenges under Dunn, to determine the nature of the case before the jury . . . .” Cola v. Reardon, supra, 787 F.2d 695. The court also said “that in inquiries under Dunn as to the case before the jury, consideration by [the First Circuit Court of Appeals] of 1he charge is both proper and required.” Id., 698.

       Little did not testify at the trial.

       This is the first mention of Little by the state, the defendant or any witness at the trial. Stone testified after six other witnesses, including another eyewitness, Nancy Rodriguez.

       “A bullet wound is not per se serious physical injury. Such a determination is a question of fact for the jury.” State v. Huckabee, 41 Conn. App. 565, 570-71, 677 A.2d 452, cert. denied, 239 Conn. 903, 682 A.2d 1009 (1996).

       The defense asked no questions of Stone about Little.

       The bullet was not removed from Little and, therefore, not recovered by the police and tested forensically.

       The transferred intent instruction was given with the instruction on the intent element of first degree assault and immediately before the instruction on the next element of first degree assault. It was as follows:
      “The next element the state must prove is that acting with that intent the defendant caused serious physical injury to another person. You’ll recall my prior instructions to you on why on this count the state has charged the defendant with an attempt, because the state was not claiming that the evidence submitted established as concerns Will Little that he sustained a serious physical injury.

        “Now, it does not matter whether the victim was the person upon whom the defendant intended to inflict serious physical injury, if in fact you find such intent. It is sufficient, if you find that the defendant intended, to cause serious physical injury to another person and that he in fact caused serious physical injury to that person or some other person. 'Ihe law does ■not require that the person injured be the defendant’s intended victim.” (Emphasis added.)

       We note that with reference to attempt crimes, State v. Hinton, 227 Conn. 301, 630 A.2d 593 (1993), did not, as the defendant claims, say that transferred intent did not apply to attempt crimes generally, but it did say that “[u]nder the circumstances of this case, the rule of lenity leads us to conclude that the transferred intent doctrine should not be applied to the crime of attempted murder.” Id., 318.

       It is true that the defendant also did not object and that he also argues that transferred intent does not apply and that it was error by the trial court to have given that instruction.


author: HENNESSY, J.

text:
    NORTHEAST SAVINGS, F.A. v. JACK S. SCHERBAN ET AL.
    (AC 16705)
    Foti, Schaller and Hennessy, Js.

      Argued September 18
    officially released December 2, 1997

      M. Dean Montgomery, for the appellants (named defendant et al.).

      Elaine M. Scanlon, for the appellee (plaintiff).
   Opinion

HENNESSY, J.

The defendants Jack Scherban and Andrea Scherban appeal from the judgment of strict foreclosure rendered by the trial court for the plaintiff, Northeast Savings. The defendants raise the following issues on appeal: (1) the plaintiff failed to provide sufficient notice of the acceleration of the debt; (2) the trial court improperly held a supplemental hearing and issued a judgment more than 120 days after the original close of evidence; (3) the plaintiff violated General Statutes § 49-6d; and (4) the plaintiff violated the Truth in Lending Act, 15 U.S.C. § 1601 et seq. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. On May 18, 1990, the defendants signed a $400,000 promissory note payable to the plaintiff secured with a mortgage deed executed by Andrea Scherban, owner of the couple’s residence.

On June 1, 1993, the plaintiff sent the defendants a letter notifying them that the note was in default and that failure to cure the deficiency within thirty days might result in the acceleration of the debt. On July 2, 1993, the plaintiff sent the defendants a second letter stating that the note continued to be in default and giving them thirty days to cure the default. On July 22, 1993, the defendants were again notified that their account was in default and that, unless they remitted the full amount past due by August 2,1993, foreclosure proceedings would commence. On September 27,1993, the plaintiff began this foreclosure action.

I

The defendants’ first claim on appeal is that the plaintiff failed to provide sufficient notice of the acceleration of the debt. The defendants claim that as a result of the plaintiffs failure to notify them properly, a condition precedent to a foreclosure action, the judgment of foreclosure is void. We disagree.

In essence, the defendants’ first claim is a dispute over the meaning of the notice provisions contained in the note. The operative agreement between the parties provided that “the lender shall give notice to borrower prior to acceleration . . . which shall specify the default, the action required to cure the default, a date not less than thirty days within which to cure the default and that failure to cure the default may result in acceleration. . . .’’The trial court found that under that provision, the parties “agreed that . . . the mortgagee was obliged to notify the defendants as borrowers that the lender was not providing more than thirty days from the date of its notice for the defendants to cure the default; or otherwise the lending bank might exercise its option to accelerate.”

The use of “shall” in the note creates a condition precedent that must be satisfied prior to foreclosure. See Citicorp Mortgage, Inc. v. Porto, 41 Conn. App. 598, 602, 677 A.2d 10 (1996). The condition precedent under the note is the notice of the default, and it is clear that the defendants were timely notified of the default. Furthermore, the first notice of default stated that failure to cure might result in an acceleration of the debt, language similar to that contained within the note itself. We conclude that the note did not require that notice regarding the acceleration of the debt be a document separate from the notice of default.

We further conclude that the notice of default satisfied the notice requirement contained in the note because it notified the defendants of the default and the possibility of acceleration. The note provision required only that the plaintiff give notice of the default and notice that failure to cure the default “may result in acceleration.” Therefore, the contract provisions regarding notice were properly satisfied and the judgment is proper.

II

The defendants’ next two claims on appeal are interrelated. First, the defendants claim that the trial court abused its discretion in scheduling a supplemental hearing. Second, the defendants claim that the trial court’s judgment was issued more than 120 days after the close of evidence and, therefore, the court lacked subject matter jurisdiction to determine the merits of the case. We disagree with both claims.

The following additional facts are necessary to our resolution of these issues. A hearing was held before the trial court on July 11, 1995, at which evidence of the debt and special defenses were presented by the plaintiff and defendants, respectively. Both parties were ordered by the court to file simultaneous posttrial briefs. The defendants’ posttrial brief contained a new argument, not presented at trial, alleging that the plaintiff had failed to notify them properly of the original default. In order to respond, the plaintiff requested permission to introduce the letters as exhibits. The defendants objected, asserting that they had never received these documents and requesting that “the court reopen the trial of this matter so the Plaintiff can offer said document in proper form, subject to Defendants’ right of cross-examination.” The defendants’ request for a hearing was granted.

A

A hearing was held on June 6, 1996, at which time the plaintiff introduced the letters into evidence through a bank manager. The defendants conducted extensive cross-examination of the witness. No additional evidence was presented by either side. The last briefs in this case were filed on June 26, 1996. On September 25,1996, the trial court rendered judgment of strict foreclosure.

The first issue before us is whether the trial court abused its discretion when it reopened the evidentiary phase of the proceedings. “ ‘In any ordinary situation if a trial court feels that, by inadvertence or mistake, there has been a failure to introduce available evidence upon a material issue in the case of such a nature that in its absence there is a serious danger of a miscarriage of justice, it may properly permit that evidence to be introduced at any time before the case has been decided.’ Hauser v. Fairfield, 126 Conn. 240, 242, 10 A.2d 689 (1940). ‘Whether or not a trial court will permit further evidence to be offered after the close of testimony in a case is a matter resting in the sound discretion of the court.’ Toffolon v. Avon, 173 Conn. 525, 537, 378 A.2d 580 (1977).” Wood v. Bridgeport, 216 Conn. 604, 606, 583 A.2d 124 (1990); State v. Holmquist, 173 Conn. 140, 152, 376 A.2d 1111, cert. denied, 434 U.S. 906, 98 S. Ct. 306, 54 L. Ed. 2d 193 (1977); Poly-Pak Corp. of America v. Barrett, 1 Conn. App. 99, 104, 468 A.2d 1260 (1983). “The term discretion means a legal discretion to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” (Internal quotation marks omitted.) Buckley v. Warden, 181 Conn. 286, 290, 435 A.2d 348 (1980).

Here, the plaintiffs failure to include the correspondence in the bank file was a mistake. Further, the plaintiff could have been substantially prejudiced if it had been prevented from addressing the notice issue raised in the defendants’ posttrial brief. We conclude that because the defendants raised this issue, the trial court properly exercised its discretion to allow the plaintiff to introduce the additional evidence. See Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 352-54, 579 A.2d 1054 (1990) (foreclosure proceedings equitable).

B

The defendants next claim that the judgment was rendered in violation of General Statutes (Rev. to 1993) § 51-183b. The defendants contend that for purposes of § 51-183b, the operative completion date in this civil case was January 16,1996, thereby making the September 25, 1996 ruling more than 120 days from the close of evidence. We disagree.

Section 51-183b “applies to all civil causes, and unless the parties waive its provisions, a trial court must render its decision within 120 days of the completion of the trial, which ends with the filing of the briefs when requested. Frank v. Streeter, [192 Conn. 601, 472 A.2d 1281 (1984)].” Sanchez v. Prestia, 29 Conn. App. 157, 161, 612 A.2d 824, cert. denied, 224 Conn. 913, 617 A.2d 167 (1992). “In determining that ‘the completion date’ includes the filing of briefs, the trial court held that briefing of the legal issues was a component of the judicial gathering of the materials necessary to a well-reasoned decision. In related contexts, ‘completion’ has been held to encompass the availability of all the elements directly or indirectly to be considered in the rendering of a decision. See Bankamerica Corporation v. Board of Governors, 596 F.2d 1368, 1378 (9th Cir. 1979); Lloyd v. Illinois Regional Transportation Authority, 548 F. Sup. 575, 590 (N.D. Ill. 1982).” Frank v. Streeter, supra, 604.

The original trial was held on July 11,1995. The post-trial briefs were submitted on or before September 26, 1995. The arguments presented within the defendants’ brief necessitated the introduction of additional evidence. Accordingly, the trial court scheduled another hearing on June 6,1996. Briefs regarding the supplemental hearing were filed on June 26, 1996, the completion date of this trial. For the trial court’s judgment to comply with § 51-183b, it would have to have been issued prior to the end of October, 1996. In this case, the judgment was rendered on September 26, 1996, well within the statutory time period and therefore was timely.

Ill

The defendants next claim that the plaintiff violated General Statutes § 49-6d (a) , which provides: “Each creditor shall notify a consumer debtor . . . that such debtor: (1) May have legal interests that differ from the creditor’s; (2) May not be required by the creditor to be represented by the creditor’s attorney; (3) May waive the right to be represented by an attorney; (4) May direct any complaints concerning violations of this section to the Department of Banking.”

The following facts are necessary for the resolution of this claim. On January 1, 1990, the defendants acknowledged receipt of a booklet titled “Settlement Costs and You.” This book stated in pertinent part that “the buyer and seller may each retain an attorney to check the various documents and to represent them at all stages of the transaction including settlement.” The book warned that if the attorney at the closing represented both the bank and the mortgagor, the attorney “may not fully represent your interests since, as closing agent, he would be representing the seller and other interests as well.” Additionally, the defendants acknowledged receipt of a document titled “Important Notice, Please Read Carefully,” which stated that the Scherbans’ attorney must give the bank’s attorney at least three days notice prior to closing. On April 12, 1990, one of the defendants, Jack Scherban, wrote a letter to the plaintiff stating the date on which he would like to schedule the closing and that the Scherbans’ attorney for “this transaction [would be] David C. Erdos.”

The defendants argue that because the bank did not send them a separate notice setting forth the provisions of § 49-6d, the judgment of foreclosure is void. Because we conclude that there was no violation of § 49-6d, we need not reach that issue.

The legislative history of § 49-6d reveals that its purpose is to require banks to advise “the borrower that he does not have to use the creditor’s attorney. ...” 29 H.R. Proc., Pt. 13, 1986 Sess., p. 4857, remarks of Representative Gerard B. Patton. Here, the defendants were notified well in advance of the closing that they had the right to be represented by an attorney of their own choosing. Indeed, they were told that it was best if they had their own attorney. Further, the facts of this case show that the defendants did indeed retain an attorney who was present at the closing. Accordingly, the defendants’ claim is without merit.

IV

The defendants next claim that the plaintiff’s alleged violation of 15 U.S.C. § 1601 et seq., the Truth in Lending Act (TILA), constitutes a special defense to the underlying foreclosure. The trial court rejected this argument in determining that TILA is not applicable to the refinancing of a residential mortgage.

The crux of the defendants’ claim under TILA is that the plaintiff incorrectly reported the recording fee as $50 rather than the actual fee of $40. Due to this error, the defendants seek attorney’s fees pursuant to statute. Title 15 U.S.C. § 1638 (b) (2) sets forth the required disclosures a creditor must make prior to the extension of credit “ [i]n the case of a residential mortgage transaction, as defined in section 103 (w) [15 U.S.C. § 1602 (w)].” Title 15 U.S.C. § 1602 (w) defines a residential mortgage transaction as one in which “a mortgage . . . is created or retained against the consumer’s dwelling to finance the acquisition or initial construction of such dwelling.” (Emphasis added.)

The note signed by the defendants in the amount of $400,000 was secured by the refinancing of an existing mortgage on the residence owned by Andrea Scherban. Under these facts, it is clear that the underlying financial transaction between these parties cannot be classified as the acquisition of a home or the financing of the construction of a new home. Therefore, the provisions of TILA do not apply.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

In this opinion the other judges concurred.

       Also named as a defendant was NAB Asset Venture, a subsequent encumbrancer. We refer in this opinion to Jack Scherban and Andrea Scherban as the defendants.

       The defendants did not malm any discovery requests of the plaintiff prior to or during the trial.

       General Statutes (Rev. to 1993) § 51-183b provides: “Any judge of the Superior Court and any state trial referee who has the power to render judgment, who has commenced the trial of any civil cause, shall have the power to continue such trial and shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section.”


text:
    BANK OF BOSTON CONNECTICUT v. JOSEPH A. MONIZ ET AL.
    (AC 16792)
    Foti, Landau and Hennessy, Js.
    Argued September 25
    officially released December 2, 1997

      Richard P. Weinstein, with whom, on the brief, was Nathan A. Schatz, for the appellants (named defendant et al.).

      Patrick Crook, for the appellee (plaintiff).
   Opinion

HENNESSY, J.

The defendants Joseph A. Moniz and Julie A. Moniz appeal from a judgment of strict foreclosure rendered, after a trial to the court, for the plaintiff, Bank of Boston Connecticut (bank). The defendants claim that (1) the trial court improperly relied solely on an affidavit of debt without conducting an evidentiary hearing when the defendants had filed a disclosure of defense challenging the amount and calculation of the debt, (2) the affidavit relied on by the trial court was insufficient to support the judgment, and (3) the appraisal based solely on an exterior inspection was insufficient to determine fair market value of the subj ect property. We affirm the trial court’s judgment.

The following facts are relevant to this appeal. On January 23, 1996, the bank commenced an action to foreclose a mortgage granted by the defendants on certain real property to secure a $550,000 fixed rate promissory note. On June 10,1996, the bank filed a demand for disclosure of defense. On June 17,1996, the defendants filed a disclosure of defense. Pursuant to Practice Book § 236, on June 27, 1996, the plaintiff filed a timely motion for default for failure to disclose a defense, which was granted by the trial court on August 12,1996.

On August 26, 1996, the bank filed a motion for summary judgment solely as to liability. The trial court granted the bank’s motion on September 16, 1996. Subsequently, the bank filed a motion for judgment of strict foreclosure on December 12, 1996, which was heard on December 23,1996. At the hearing, the bank submitted an affidavit of debt to the court stating that the amount of the debt was $647,539.34. That amount represented the face value of the note, payments made, accrued interest, late charges, property taxes, hazard insurance and a property inspection fee. The affidavit of debt listed accrued interest in the amount of $92,681.82 and late charges in the amount of $3820.80.

I

The defendants first claim that the trial court improperly relied solely on the plaintiffs affidavit of debt, without conducting an evidentiary hearing, to determine the amount of the debt. The defendants assert that, because they filed a disclosure of defense indicating that they intended to challenge the amount of the debt, the trial court was required to conduct an evidentiary hearing. Due to a procedural default, we decline to review the challenged actions of the trial court.

On June 17, 1996, the defendants filed a disclosure of defense. Pursuant to Practice Book § 236, the plaintiff filed a motion for default for failure to disclose a defense within the required time, which was granted by the trial court on August 12, 1996. We note that nothing in the record indicates that the default has been removed. The plaintiffs motion for summary judgment on the issue of liability alone was granted shortly thereafter.

“In order for foreclosure cases to move as swiftly as possible through our court system, it is imperative that a defendant disclose any defenses to the mortgage debt prior to the hearing.” Suffield Bank v. Berman, 25 Conn. App. 369, 373, 594 A.2d 493, petition for cert. dismissed, 220 Conn. 913, 597 A.2d 339, cert. denied, 220 Conn. 914, 597 A.2d 340 (1991). “A default admits the material facts that constitute a cause of action . . . and entry of default, when appropriately made, conclusively determines the liability of a defendant. Ratner v. Willametz, 9 Conn. App. 565, 579, 520 A.2d 621 (1987). (Citations omitted.) Skyler Limited Partnership v. S.P. Douthett & Co., 18 Conn. App. 245, 253, 557 A.2d 927 [cert. denied, 212 Conn. 802, 560 A.2d 984] (1989).” (Internal quotation marks omitted.) Voluntown v. Rytman, 27 Conn. App. 549, 557, 607 A.2d 896, cert. denied, 223 Conn. 913, 614 A.2d 831 (1992).

“Where no defense as to the amount of the mortgage debt is interposed in aforeclosure case, the amount due the plaintiff may be proved by an affidavit of debt. Practice Book § 527; Connecticut National Bank v. N. E. Owen II, Inc., 22 Conn. App. 468, 472, 578 A.2d 655 (1990).” (Emphasis added.) Suffield Bank v. Berman, supra, 25 Conn. App. 372. The trial court ruled that the filing of the disclosure of defense was untimely. The defendant never challenged that conclusion nor attempted to remove the default through a motion to open default pursuant to Practice Book § 376. We are bound by the trial court’s determination. Therefore, the defendant is precluded from challenging on appeal the plaintiffs use of an affidavit of debt to the amount due. This court is not raising a new issue, but merely recognizing that a fact relied on by the defendants, a valid disclosure of defense, is not supported by the record.

II

The defendants next claim that the affidavit of debt was insufficient as a matter of law to support a judgment of strict foreclosure. Specifically, the affidavit could not support a judgment of strict foreclosure because (1) there was insufficient evidence to establish the agency relationship between the bank and the affiant and (2) the affidavit was inadmissible hearsay. We disagree.

Pursuant to Practice Book § 527, the bank filed an affidavit of debt. “In any action to foreclose a mortgage where no defense as to the amount of the mortgage debt is interposed, such debt may be proved by presenting to the court the original note and mortgage, together with the affidavit of the plaintiff or other person familiar with the indebtedness, stating what amount, including interest to the date of the hearing, is due, and that there is no setoff or counterclaim thereto.” Practice Book § 527. The defendants claim that the bank was required to prove the agency relationship between itself and Homeside Lending, Inc. (Homeside), by evidence independent from the affiant’s statement. We have frequently emphasized that the words of a statute “are to be given their commonly approved meaning, unless a contrary intent is clearly expressed.” (Internal quotation marks omitted.) State v. Smith, 194 Conn. 213, 221, 479 A.2d 814 (1984); Harlow v. Planning & Zoning Commission, 194 Conn. 187, 193, 479 A.2d 808 (1984). It is clear from the language of the rule that an affidavit of debt may be submitted by “the plaintiff or other person familiar with the indebtedness . . . .” Practice Book § 527. The existence of an agency relationship is not a prerequisite for a proper affidavit of debt. In the present case, it is clear that the affidavit presented by the plaintiff contained all the information required under the rule.

The defendants also claim that the affidavit of debt was insufficient because the information regarding the amount of debt was hearsay. Although the defendants attempt to gamer support for their position in Connecticut case law, the cases cited involve testimony by witnesses at a hearing rather than the use of an affidavit of debt. See generally New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 680 A.2d 301 (1996); Federal Deposit Ins. Corp. v. Keating, 44 Conn. App. 556, 690 A.2d 429 (1997); Central Bank v. Colonial Romanelli Associates, 38 Conn. App. 575, 662 A.2d 157 (1995).

When a defendant raises a defense concerning the amount of the mortgage debt before the trial court, Practice Book § 527 is “inapplicable and the general prohibition against hearsay evidence preclude [s] the use of the affidavit.” Burritt Mutual Savings Bank of New Britian v. Tucker, 183 Conn. 369, 375, 439 A.2d 396 (1981). That is not the situation here. “Where no defense as to the amount of the mortgage debt is interposed in a foreclosure case, the amount due the plaintiff may be proved by an affidavit of debt. Practice Book § 527; Connecticut National Bank v. N. E. Owen II, Inc., [supra, 22 Conn. App. 472].” Suffield Bank v. Berman, supra, 25 Conn. App. 372. The trial court properly relied on the plaintiffs affidavit of debt.

Ill

Finally, the defendants claim that an appraisal of the mortgaged property, based solely on an exterior inspection, cannot provide a sufficient basis for a determination of fair market value in a strict foreclosure action. We disagree.

Certain additional facts are necessary for our resolution of this claim. At the hearing to determine the fair market value of the property, the bank presented an appraisal of the subject property, based on an exterior inspection only, which estimated the fair market value of the property to be $551,000. The bank waived its right to rely on an interior inspection to increase the amount of any deficiency judgment. The defendants objected, claiming that, without an interior inspection, the court did not have a reasonable basis on which to determine the fair market value of the property.

“In a case such as this, the determination of value is a major factor in the decision whether to allow a foreclosure by sale rather than a strict foreclosure. If the appraised value of the property exceeds the debt, a foreclosure by sale might offer some relief to subsequent encumbrancers. In a foreclosure proceeding the trial court must exercise its discretion and equitable powers with fairness not only to the foreclosing mortgagee, but also to subsequent encumbrancers and the owner. Fidelity Trust Co. v. Irick, 206 Conn. 484, 538 A.2d 1027 (1988); see also Connecticut Savings Bank v. Burger, 23 Conn. App. 192, 579 A.2d 1097 (1990).” Farmers & Mechanics Bank v. Arbucci, 24 Conn. App. 486, 487-88, 589 A.2d 14, cert. denied, 219 Conn. 907, 593 A.2d 133 (1991).

In the present case, the bank presented an appraisal of the property based solely on an exterior inspection. Furthermore, the bank waived its right to rely on an interior inspection to increase the amount of any deficiency judgment. The defendants objected, claiming that the appraisal was insufficient, but chose not to present any evidence as to the value of the property. “The determination of value by a court is aided ordinarily by the opinion of expert witnesses, and reached by weighing those opinions in light of all the circumstances in evidence bearing upon value and in light of the court’s own general knowledge of the elements going to establish it. Voluntown v. Rytman, 21 Conn. App. 275, 286-87, 573 A.2d 336, cert. denied, 215 Conn. 818, 576 A.2d 548 (1990).” Farmers & Mechanics Bank v. Arbucci, supra, 24 Conn. App. 488. As no contradictory evidence was presented, the trial court chose to rely on the testimony of the independent appraiser in establishing value. This was reasonable and well within the trial court’s province as the trier of fact.

Any remedy the defendants might have regarding the value of the properly would arise in proceedings for a deficiency judgment. If, as the defendants assert, an interior inspection would have increased the appraised value of the property, they can present that evidence at the hearing for a deficiency judgment. If an interior inspection would have lowered the appraised value of the property, the bank has waived its right to claim anything less than the exterior-only appraised value of the property.

The trial court properly relied on an independent appraisal, based solely on an exterior inspection, in determining the fair market value of the subject property.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

In this opinion the other judges concurred.

       We refer in this opinion to the defendant property owners, Joseph A. Moniz and Julie A. Moniz, as the defendants. The plaintiff also named subsequent encumbrancers as defendants in this action.

       The disclosure of defense stated in relevant part that “there exists a bona fide defense to the plaintiff’s claim, to the extent that the defendants reserve their right to challenge the amount of the plaintiffs debt and calculation of said debt pursuant to Suffield Bank v. Berman, 25 Conn. App. 369.”

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

       We note that this crucial fact was not mentioned in the briefs of either party or at oral argument. Furthermore, at oral argument, counsel for the appellant specifically stated, “I submit the affidavit of debt in a foreclosure case should only be used where there has been no challenge, no defense raised by the defendants, i.e., default failure to appear, default failure to plead, default for failure to disclose a defense. That did not occur in this case.”

       The affidavit stated the following facts: (1) the affiant is an assistant secretary-senior paralegal employed by the default administration unit of Homeside Lending, Inc; (2) Homeside is the mortgage servicer for the plaintiff and successor to BancBoston Mortgage Coip. by virtue of a merger; (3) prior to her employment with Homeside, the affiant was employed at BancBoston Mortgage Corp.; (4) Homeside is contractually obligated to accept mortgage payments from the defendants, to apply them to the defendants’ account, and to maintain records of the amount owed to the plaintiff under the terms of the note and mortgage; (5) the affiant is familiar with the books and records of the plaintiff and Homeside and personally generated the pay-off statement attached to the affidavit; (6) in the course of her employment with Homeside, the affiant became personally familiar with the pay-off statement attached and relied on the same in the course of her work; (7) the pay-off statement was generated in the usual and ordinary course of business of the plaintiff and Homeside; (8) the affidavit also listed an itemized breakdown of the total amount owed to the plaintiff, $647,539.34.

       “A deficiency judgment provides a means for a mortgagee to recover any balance due on the mortgage note that was not satisfied by the foreclosure judgment. ... It is the only means of satisfying a mortgage debt when the security is inadequate to make the foreclosing plaintiff whole. . . . Furthermore, a deficiency proceeding has a very limited purpose. In the hearing contemplated under § 49-14 to obtain a deficiency judgment, the court, after hearing the party’s appraisers, determines the value of the property and calculates any deficiency. This deficiency judgment procedure presumes the amount of the debt as established by the foreclosure judgment and merely provides for a hearing on the value of the property.” (Citation omitted; internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Voll, 38 Conn. App. 198, 208, 660 A.2d 358, cert. denied, 235 Conn. 903, 665 A.2d 901 (1995).