text:
    Lisa Ann Perez v. Orlando Perez, Jr.
    (4278)
    Borden, Spallone and Bieluch, Js.
    Argued May 6
    decision released July 8, 1986

      Charles A. Maglieri, for the appellant (plaintiff).

      Louis Kiefer, for the appellees (intervenors Orlando Perez, Sr., et al.).
   Borden, J.

The plaintiff, Lisa Ann Perez, appeals from the trial court’s judgment denying her motion to modify the custody decree of the Superior Court of Puerto Rico. The principal issue in this appeal is whether the trial court erred by failing to grant the plaintiff’s oral motion that the court “request of the court of [Puerto Rico] a certified copy of the transcript of any court record and other documents mentioned in [General Statutes] section 46b-lll.” General Statutes § 46b-112. We find error.

The facts are not in dispute. The plaintiff and the defendant, Orlando Perez, Jr., were married on January 29, 1983. Their only child, Orlando Perez III, was born on June 25,1983. Early in 1984, the parties separated and the plaintiff initiated dissolution proceedings in the Superior Court for the judicial district of Tolland. The child remained with the paternal grandparents in Portland. Shortly thereafter, the defendant fled with the child to Puerto Rico. The defendant initiated custody proceedings in Puerto Rico and the plaintiff proceeded with the dissolution action in Connecticut. On September 4, 1984, the trial court in Connecticut rendered judgment dissolving the marriage and, by agreement of the parties, deferred to the trial court in Puerto Rico for resolution of the custody issue. On November 1, 1984, the trial court in Puerto Rico awarded custody of the child to the paternal grandparents in Portland. The parties were awarded reasonable rights of visitation, subject, however, to the direct physical supervision of the paternal grandparents. The defendant then returned with the child to Connecticut.

On March 25,1985, the plaintiff filed in the Superior Court for the judicial district of Tolland a petition for enforcement of the Puerto Rican custody decree, in which she requested recognition and enforcement of her visitation rights under that decree. She also filed a petition for modification of the custody decree and a motion for reference to the family relations division for a custody study. Attached to the modification motion were an affidavit and exemplified copies of the custody application and decree in the Spanish language, together with an English translation. The trial court issued an order to show cause directed to the defendant and summoned “the defendants, Orlando Perez, Sr. and Loraine Perez [the paternal grandparents], and Orlando Perez, Jr.” to appear at a hearing. The defendant, Orlando Perez, Jr., filed, inter alia, a motion to dismiss the plaintiffs motions on the ground that the trial court lacked jurisdiction over the child and the paternal grandparents.

On May 6, 1985, the trial court held a hearing and denied the defendant’s motion to dismiss. Having accepted jurisdiction, the court proceeded to address the merits of the plaintiff’s motions. The basis of the plaintiff’s claim for modification of the foreign custody decree was that it was not based on the best interests of the child. See Hally. Hall, 186 Conn. 118, 122, 439 A.2d 447 (1982). During the hearing, the plaintiff made an oral motion that the court request the transcripts and other relevant documentation from the trial court in Puerto Rico pursuant to General Statutes § 46b-112 before rendering judgment on her motion to modify its custody decree. The trial court denied this motion and rendered judgment denying the plaintiff’s motion to modify custody. The plaintiff then filed a motion to set aside or open the judgment, which the court denied. This appeal followed.

General Statutes § 46b-112 provides: “If a custody decree has been rendered in another state concerning a child involved in a custody proceeding pending in a court of this state, the court of this state upon taking jurisdiction of the case shall request of the court of the other state a certified copy of the transcript of any court record and other documents mentioned in section 46b-111.” (Emphasis added.) Similarly, General Statutes § 46b-104 (b) provides that “[i]f a court of this state is [otherwise] authorized ... to modify a custody decree of another state it shall give due consideration to the transcript of the record ar¡'d other documents of all previous proceedings submitted to it in accordance with section A6b-112.” (Emphasis added.) In the present case, the trial court accepted jurisdiction of the plaintiffs motion to modify custody and the propriety of the court’s power to modify the Puerto Rican custody decree is not in issue. Thus, the provisions of General Statutes §§ 46b-112 and 46b-104 clearly govern this matter.

The plaintiff claims that the provisions of these governing statutes are mandatory and that the trial court erred by failing to request the transcripts, record and other documents from the trial court in Puerto Rico. We agree. Ordinarily “the use of the word ‘shall’ connotes that the obligation is mandatory, as opposed to permissive.” Sullivan v. Liberty Mutual Fire Ins. Co., 174 Conn. 229, 233, 384 A.2d 384 (1978). “The test for determining whether such a statutory requirement is mandatory or directory is whether the prescribed mode of action is of the essence of the thing to be accomplished.” Vartuli v. Sotire, 192 Conn. 353, 360, 472 A.2d 336 (1984). There is no ambiguity in the statutory direction to trial courts, when ruling on a motion to modify a foreign custody decree, to “request of the court of the other state a certified copy of the transcript of any court record and other documents mentioned in section 46b-111”; (footnote added) General Statutes § 46b-112; and to “give due consideration to [those items].” General Statutes § 46b-104 (b). This consideration goes directly to the custody determination which the trial court was called upon to make in this case.

The policy underlying these mandatory requirements accords with the notion that “[i]n the exercise of its awesome responsibility to find the most salutary custodial arrangement for the children of divorce;” Yontef v. Yontef 185 Conn. 275, 283, 440 A.2d 899 (1981); the trial court must “make difficult and sensitive inquiries into the relationships between adults and children.” Cappetta v. Cappetta, 196 Conn. 10, 16, 490 A.2d 996 (1985). In order for a court of this state to give due consideration to a requested modification of a foreign court’s custody decree on the basis of the claim that the prior decree was not based on the child’s best interests; see Hall v. Hall, supra; it must have before it all of the items required by General Statutes §§ 46b-104 (b) and 46b-112. The trial court erred by failing to follow these legislative directives.

There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

       The plaintiff appealed unsuccessfully to the Supreme Court of Puerto Rico.

       Although the paternal grandparents did not file an appearance at trial, they were named in the summons, and the trial court rejected the defendant’s claim that the court lacked jurisdiction over them. They have since filed an appearance in this court and have fully participated in this appeal. Therefore, we are not confronted with the issue of whether the plaintiff had “[n]otice of the identity of those who are contenders for the custody of [her] child . . . . ” Cappetta v. Cappetta, 196 Conn. 10, 16, 490 A.2d 996 (1985). We assume that on the remand an appearance will be entered on their behalf in the trial court.

       The court did set specific times for the plaintiffs visitation with her child.

       General Statutes § 46b-l.ll provides: “In any custody proceeding in this state the court shall preserve the pleadings, orders and decrees, any record that has been made of its hearings, social studies and other pertinent documents until the child reaches eighteen years of age. Upon appropriate request of the court of another state, the court shall forward to the other court certified copies of any or all of such documents.”

       According to General Statutes § 46b-92 (10), Puerto Rico is included within the definition of the term “state” for purposes of these statutory provisions.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    State of Connecticut v. Carmen Colon
    (3910)
    Dupont, C. J., Hull and Spallone, Js.
    Argued June 3
    decision released July 8, 1986

      Edward N. Lerner, for the appellant (defendant).

      Jeffrey L. Kline, special assistant state’s attorney, with whom, on the brief, was James G. Clark, deputy assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant is appealing from the judgment rendered after her conviction, by a jury, of the crimes of possession of cocaine with intent to sell in violation of General Statutes § 21a-279 (a), and possession of drug paraphernalia in a drug factory situation in violation of General Statutes § 21a-277 (c). The defendant claims that she was denied effective assistance of counsel and that the trial court abused its discretion when it failed to entertain the defendant’s motion for a new trial.

We will not review the defendant’s claim of ineffective assistance of counsel. Our Supreme Court has emphasized the fact that habeas corpus proceedings rather than direct appeals are best suited to test the performance of counsel. That court stated that “[i]t is preferable that all of the claims of ineffective assistance [of counsel], those arguably supported by the record, as well as others requiring an evidentiary hearing, be evaluated by the same trier in the same proceeding.” State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986).

In State v. Aspinall, 6 Conn. App. 546, 554-55, 506 A.2d 1063 (1986), we stated that “[w]hen confronted with a claim of ineffective assistance of counsel, we are placed in a position where we are viewing the performance of trial counsel after the fact with limited hindsight. We are further hindered because, generally, the record on appeal is devoid of objective factual evidence by which we can measure and evaluate the performance of counsel. Trial counsel’s motivation and reasoning governing his or her acts are highly subjective and are not readily ascertainable by us in the absence of a trial court hearing where the facts and circumstances of the case may be focused upon and illuminated. What may facially appear to us as a dereliction by counsel might in the context of the trial be a proper or purposeful tactic.” A defendant’s ineffective assistance claim should be resolved as a totality after an evidentiary hearing in the trial court, and not in piecemeal fashion on appeal. State v. Leecan, supra, 542.

The defendant’s second claim of error, that the court abused its discretion in not entertaining her motion for a new trial based on ineffective assistance of counsel, is without merit. The motion was not timely filed. Practice Book § 903 provides that “[ujnless otherwise permitted by the judicial authority in the interests of justice, a motion for a new trial shall be made within five days after a verdict or finding of guilty or within any further time the judicial authority allows during the five-day period.” (Emphasis added.) The defendant’s motion was not filed within the time specified. Even if the motion had been filed timely or if the court had decided that in the interests of justice such a motion should have been heard, the granting of a motion for a new trial is wholly discretionary. State v. Asherman, 193 Conn. 695, 735, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). The court’s ruling on a motion for a new trial should stand unless it is shown that the court abused its discretion. Kubeck v. Foremost Foods Co., 190 Conn. 667, 669-70, 461 A.2d 1380 (1983). Here, the defendant has failed to demonstrate such abuse.

There is no error.


author: Borden, J.

text:
    Annette Kaplan v. Zdenek D. Kaplan
    (4220)
    Borden, Spallone and Bieluch, Js.
    Argued May 7
    decision released July 8, 1986

      Daniel V. Presnick, for the appellant (defendant).

      E. Arthur Morin, Jr., for the appellee (plaintiff).
   Borden, J.

The defendant appeals from the trial court’s denial of his motion to modify a judgment of dissolution of marriage rendered in 1975. The sole issue involves the circumstances under which a court may modify a judgment, which is silent on the issue of child support, in order to award support in favor of the custodial parent, in the absence of a showing of a substantial and unforeseen change in circumstances. The court denied the motion because the defendant failed to establish such a change of circumstances. Under the facts and circumstances of this case, we find error.

The facts are undisputed. The parties married in 1969. In February, 1975, the plaintiff brought a dissolution of marriage action through counsel. The sole minor child of the party was then nearly six years old. The defendant appeared pro se. In June, 1975, the parties executed a written stipulation that their marriage had broken down irretrievably, that the defendant would have custody of their minor child, subject to the reasonable right of visitation in the plaintiff, and that there be no alimony. The stipulation did not mention child support. The minor child was unrepresented by counsel. The judgment of dissolution, dated July 1, 1975, recited that “the plaintiff appeared to prosecute said complaint, but the defendant appeared but offer[ed] no evidence and joined in a stipulation which was read and approved by the Court.” The judgment dissolved the marriage and awarded custody of the child to the defendant subject to the right of reasonable visitation in the plaintiff. The judgment was silent as to support for the child. Neither party filed a financial affidavit.

In February, 1985, the defendant moved to modify the judgment to order the plaintiff to pay him $100 per week as child support. The defendant in this case also brought a separate action against the plaintiff in this case for support of the child. The court on its own motion consolidated that action with the defendant’s motion for modification in this case. Although the record reflects that only the defendant filed a financial affidavit at the hearing on the motion for modification in this case, it also reflects such affidavits filed by both parties in the separate support action which was consolidated with this case. Those affidavits indicate that, at the time of the hearing in this case, the defendant had net weekly earnings of approximately $530 and that the plaintiff had net weekly earnings of approximately $344.

In May, 1985, the trial court denied the motion for modification because, in the absence of affidavits disclosing the financial condition of the parties at the time of the dissolution in July, 1975, the court could not determine whether there had been a substantial and unforeseen change of circumstances since that time. This denial was, however, without prejudice to the defendant to renew his motion upon presentation of such affidavits. Two weeks later the parties reappeared before the court, and the defendant represented that he was unable to reconstruct his records to disclose his financial situation in July, 1975. The defendant, in order to ensure that the matter would be appealable, requested the court to enter its order with prejudice. The court did so, and this appeal followed.

We recognize the general rule “that an order for support of children may not be modified unless there has been a ‘substantial change of circumstances’ after the issuance of the original order. General Statutes § 46b-86 (a); Bozzi v. Bozzi, 177 Conn. 232, 237, 413 A.2d 834 (1979). The party seeking modification must ‘clearly and definitely’ demonstrate a substantial change in circumstances which was uncontemplated at the time the order was entered. Kelepecz v. Kelepecz, 187 Conn. 537, 538, 447 A.2d 8 (1982).” Rempt v. Rempt, 5 Conn. App. 85, 88, 496 A.2d 988 (1985). Ordinarily, such a change of circumstances would be established by comparing the financial affidavits filed at the time of the hearing on the motion to modify with those filed at the time of the previous order, and by any other evidence adduced on the issue. Ordinarily, also, the failure of the moving party to produce, either by reference to the trial court file or otherwise, the material necessary to this determination by the court would be fatal to his claim. A constellation of reasons, however, leads us to conclude that in this case the defendant’s failure to do so was not fatal, and that the court should have held a hearing on the defendant’s motion without reference to what may have been the financial circumstances of the parties at the time of the original judgment.

First, the language of the governing statute does not preclude such a hearing under all circumstances. General Statutes § 46b-86 (a) provides, in pertinent part, that “any final order for the periodic payment of . . . support . . . may at any time thereafter be . . . altered or modified by said court upon a showing of a substantial change in the circumstances of either party.” Strictly speaking, the original judgment here did not contain an order for the periodic payment of support. It was silent on that issue.

Second, the defendant appeared pro se at the time of the original judgment. He should not be held, nearly ten years later, to a level of knowledge of the requirement of our rules, even then, that the parties file appropriate financial affidavits. See Practice Book, 1963, § 380. This is particularly true where, as here, neither the plaintiffs counsel nor the court was prescient enough to foresee this problem and require that affidavits be filed.

Third, the original judgment was the product of a stipulation. It must, therefore, be interpreted in accordance with principles of contract law. Guille v. Guille, 196 Conn. 260, 265, 492 A.2d 175 (1985). This requires an inquiry into the intent of the parties at that time. Marsico v. Marsico, 195 Conn. 491, 493, 488 A.2d 1248 (1985). We cannot conceive that, by agreeing that the custody of the minor child should be with his father subject to the right of reasonable visitation in his mother, where neither party filed a financial affidavit, and where their stipulation did not address the issue of support, the parties intended that the issue of support for the child could not be reexamined ten years later, when the evidence of their prior financial circumstances would be unavailable.

Fourth, the passage of ten years renders compelling the defendant’s claim that he could not adequately reconstruct his financial condition to reflect its status in 1975. It would be the rare individual record keeper who could do so with reasonable accuracy.

Fifth, the child was unrepresented at the time of the original judgment. Thus his separate interest in a future modification was not provided for at that time. See Guille v. Guille, supra. Guille counsels that courts should be very chary of reading judgments in a way which “would permanently restrict the unrepresented children’s rights . . . .” Id., 268.

We do not decide that any one or more of these factors would permit a modification in the absence of a showing of a substantial and unforeseen change of circumstances. We decide only that the coalescence of all these factors in this case should permit the court to consider the issue of support at this time.

There is error, the order denying the defendant’s motion to modify the judgment is set aside and the case is remanded for a new hearing on that motion consistent with this opinion.

In this opinion the other judges concurred.

       The defendant, at oral argument in this court, appeared to claim that he was also appealing from the denial by the trial court of his separate application for support. It is clear from the record, however, that no such separate appeal is before us. The only trial court order appealed from in this record is in the dissolution matter, the defendant’s appeal refers only to that order, and his brief discusses only that order. We therefore confine our decision to the denial of the motion to modify the judgment of dissolution.

       We do not suggest, however, that such silence alone will always permit the inquiry which we order in this case. Situations are easily conceivable where the judgment may be silent, but the manner in which the case is presented to the court indicates that subsequent modification must be based on the general rule requiring an unforeseen substantial change in circumstances.

       Practice Book, 1963, § 380, as amended to take effect October 1,1974, provided in pertinent part that “[i]n any . . . family relations matter concerning . . . support . . . every party who has appeared shall, before the hearing, file, with the court and with any opposing party who has appeared, sworn statements ... of current income, expenses, assets and liabilities, and pertinent records of employment, gross earnings, gross wages and all other income.” Arguably, this section did not apply because the stipulation and judgment in this case did not provide for support. To the extent, however, that their silence is read as an order of no support, as the plaintiff argues, rather than as not dealing with the issue of support at all, as the defendant argues, this section did apply.
      The current rule makes it clear that the requirement of filing financial affidavits applies whenever a dissolution case is claimed for a hearing. “At the time . . . a dissolution of marriage . . . action is claimed for a hearing, the moving party shall file a sworn statement ... of current income, expenses, assets and liabilities, and pertinent records of employment, gross earnings, gross wages and all other income. The opposing party shall file such sworn statements at least three days before the date of the hearing .. . .” Practice Book § 463. This rule is not confined by its terms to cases in which a support order is sought. Under this rule, therefore, it is unlikely that the procedural dilemma which this case presents would occur.


author: Spallone, J.

text:
    State of Connecticut v. Willie Milledge
    (4362)
    Dupont, C. J., Hull and Spallone, Js.

      Argued June 4
    decision released July 8, 1986

      Steven F. Meo, for the appellant (defendant).

      Kevin D. O’Leary, special assistant state’s attorney, with whom were Kevin P. McMahon, assistant state’s attorney, James G. Clark, deputy assistant state’s attorney, and Harry Weller, special assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals his conviction, after a jury trial, of the crimes of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), assault in the first degree in violation of General Statutes § 53a-59 (a) (1), and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2).

The defendant claims that the trial court erred (1) in denying the defendant his right to a unanimous verdict on the first count of the information, (2) in instructing the jury that the defendant could be guilty of assault by acting recklessly, and (3) in concluding that the evidence was sufficient to support a conviction of conspiracy to commit robbery.

The jury could reasonably have found the facts as follows. At about 3:30 p.m. on March 13,1984, the police, having been dispatched to 177 Overlook Terrace in Hartford, discovered the victim, Eloy Vega, bleeding from a head wound. Officer Francis Haynes, one of the police who responded to the call, received information from three witnesses who stated that they had seen what happened. According to the witnesses, the perpetrators were four black males who were riding in a green Buick Electra with a broken taillight. The witnesses stated that the gun used in the incident was a small caliber handgun. Subsequently, the witnesses were brought to the police station and their statements were taken.

At approximately 4 p.m. that same afternoon, Detectives Russell Blow and Edward Czernicki of the Hartford police department noticed a car matching the description of the suspect’s vehicle as it drove by their position on Nelson Street. Blow recognized the driver of the car as the defendant, Willie Milledge. The two detectives stopped the car and, approaching it with guns drawn, ordered the occupants to keep their hands raised. The defendant, with his head down to the level of the steering wheel, appeared to be fumbling with something under the seat in an attempt to hide it. The defendant was ordered to exit the car, after which a small .25 caliber handgun was recovered from the vehicle. This gun was later proven to be the weapon from which a bullet taken from the victim’s skull was fired. In addition to the defendant, the vehicle was occupied by Arthur Alexander, Woodrow Johnson, Billy Leonard, and Barry Williams. The suspects were taken into custody and were made subjects in a lineup.

Freddie Torrez, the brother of the victim, witnessed the shooting. He viewed the lineup and picked out the defendant as the party who held the gun while Alexander and Williams threw him to the ground and robbed him of $35. Juan Rodriguez and Narcisco Texidor, who also had witnessed the crime, also picked out the defendant from the lineup as having been at the scene of the shooting. Torrez indicated that he heard one person say “Willie, let’s get him now.” The victim of the shooting, Vega, stated that the driver of the car wore a New York Yankee baseball cap and that the last thing he remembered before being shot was the driver’s holding a pistol in front of his face. Arthur Alexander, one of the passengers in the car, identified the defendant as the person who pointed the weapon at the victim and shot him. Texidor identified the defendant as wearing a New York Yankee baseball cap and as the driver of the vehicle. Texidor stated that the defendant was carrying a small handgun when he ran back to the Buick. He also stated that the defendant had his finger on the trigger of the gun.

The defendant’s first claim, although not raised at trial, is reviewable by us under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). The defendant asserts that he was deprived of his right, under the sixth amendment to the United States constitution, to a unanimous verdict of his six member jury. He claims deprivation of a fundamental right and contests the fairness of his trial. We held in State v. Benite, 6 Conn. App. 667, 671, 507 A.2d 478 (1986), that a defendant’s unanimity claim falls into the category of cases that may be reviewed under the Evans bypass.

It is clear that the sixth amendment to the United States constitution guarantees a defendant in a criminal case the right to a unanimous verdict if his jury consists of only six members. Burch v. Louisiana, 441 U.S. 130, 99 S. Ct. 1623, 60 L. Ed. 2d 96 (1979).

The amended information, in the first count, charging the defendant with robbery in the first degree, sets forth as follows: “First Count: That the said Willie Milledge did commit Robbery in the First Degree in Violation of Connecticut General Statutes § 53a-134 (a) (2), and that on or about March 13,1984, in the area of 176 Overlook Terrace in the City of Hartford, while accompanied with co-defendants, he was armed with a deadly weapon which he discharged into the skull and eye of Eloy Vega to overcome his resistance for the taking of Mr. Vega’s property and Freddie Torre[z].”

In pressing his unanimity argument, the defendant claims that some of the jurors might have found the defendant guilty of robbing Vega, while others of the jury might have found the defendant guilty of robbing Torrez. The jury could have been unanimous in its conclusion that a robbery was committed but could have lacked unanimity as to each of the victims, individually, thereby depriving the defendant of his constitutionally required unanimous verdict.

We disagree with the defendant’s argument that in order to find the defendant guilty the state had the burden of proving that two robberies were committed. The state charged the defendant with only one count of robbery for which the defendant was tried, convicted and sentenced. The state had the burden of proving beyond a reasonable doubt the elements of the crime of robbery in the first degree as charged in the amended information. The essential elements constituting the crime of robbery in the first degree under General Statutes § 53a-134 (a) (2) are a robbery when the person committing same is armed with a deadly weapon.

General Statutes § 53a-133 defines robbery as essentially the taking of the property of another by the use of force or the threat thereof. The information in this case, in addition to relating the essential elements of robbery in the first degree, in effect, gratuitously adds additional elements resulting in a greater burden of proof required of the state. This greater burden, requiring that the state prove more than the necessary elements to constitute the crime, works to the advantage of the defendant. Where the circumstances of the charge work to the benefit of the defendant and substantially increase the state’s burden of proof, the defendant has little cause to complain. State v. Hawthorne, 175 Conn. 569, 574, 402 A.2d 759 (1978). Moreover, in this case the added element of “while accompanied with co-defendants,” and the taking of the property of Freddie Torrez are pleaded as additional allegations subject to proof by the state beyond a reasonable doubt rather than in the alternative which might support a claim of lack of unanimity.

The jury was not confronted with the option of choosing from the allegations only those elements necessary to constitute a robbery of either Vega or Torrez but was in fact instructed by the court that they had to find, unanimously, all the elements as alleged in order to convict the defendant of the crime of robbery in the first degree. The trial court in its instructions to the jury on several occasions emphasized the fact that their verdict had to be unanimous. A fair reading of the complete charge leaves no doubt that the jury was fully and fairly apprised of the requirement of unanimity. In addition, the record indicates that the jury was polled and that the defendant neither made an effort to provide a record of the results nor did he object to the acceptance of the verdict. If the poll supported the defendant’s claim of lack of unanimity, we would expect that he would have provided us with the record of the same. We will not presume error. State v. Tyler-Barcomb, 197 Conn. 666, 676, 500 A.2d 1324 (1985); State v. Thompson, 197 Conn. 67, 81, 495 A.2d 1054 (1985); Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 407, 480 A.2d 552 (1984). The defendant’s claim of lack of unanimity is unwarranted.

The defendant’s next claim, that the trial court erred by instructing the jury that the defendant could be found guilty of assault if he acted recklessly, and his final claim, that the evidence was insufficient to support a conviction for conspiracy to commit robbery, were not raised by him at the trial level and he has not claimed that they are reviewable under State v. Evans, supra. Consequently, we decline to review these claims on appeal. Practice Book § 3063; State v. Kurvin, 186 Conn. 555, 563-64, 442 A.2d 1327 (1982); State v. McDaniel, 176 Conn. 131, 135, 405 A.2d 68 (1978); State v. Hilliard, 3 Conn. App. 339, 341, 488 A.2d 463 (1985).

There is no error.

In this opinion the other judges concurred.


author: Hull, J.

text:
    State of Connecticut v. Richard Salz, Sr.
    (2586) (2587)
    Hull, Spallone and Bieluch, Js.
    Argued April 1
    decision released July 15, 1986

      James M. S. Ullman, for the appellant (defendant in both cases).

      Julia DiCocco Dewey, assistant state’s attorney, with whom, on the brief, were Arnold, Markle, state’s attorney, Thomas V. O’Keefe, Jr., assistant state’s attorney, and ToddPfister, legal intern, for the appellee (state).
   Hull, J.

After a trial to a jury, the defendant was found guilty of four counts of larceny in the second degree, a violation of General Statutes §§ 53a-119 (8) and 53a-123 (a) (1). In his appeal from the judgment rendered on the verdicts, the defendant claims the trial court erred in four respects: (1) in refusing to suppress the fruits of a search the police conducted of his garage; (2) in permitting the assistant state’s attorney to make derogatory remarks about him during closing argument; (3) in allowing the state to amend the information during trial to cure a defect; and (4) in denying his motion for judgment of acquittal on the basis of the insufficiency of evidence. We find no error.

On January 8,1982, detectives Gerald O’Donnell and Frank Bradley of the Cheshire police department, on the basis of information provided by two informants, obtained a warrant to search the buildings on the defendant’s property in East Haven, exclusive of his home. On the same day, O’Donnell and Bradley, accompanied by five other police officers, executed the warrant and seized from the defendant’s garage a 1978 maroon Ford pickup truck, a 1979 blue Ford pickup truck, a 1979 dual wheel Ford pickup truck, and two Connecticut license plates, one of them mutilated. Prior to trial, the defendant moved to suppress these items and others seized during a subsequent search of his property, claiming that the items taken on January 8 were seized unlawfully and that those seized later, on January 11, were the fruits of that first unlawful seizure. The trial court denied the defendant’s motion.

The defendant makes three separate arguments in support of his claim that the trial court erred in denying his motion to suppress. In the first, he asserts that the warrant under which the officers searched his garage was not based on probable cause. “ ‘Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony has been committed.’ State v. Middleton, 170 Conn. 601, 604, 368 A.2d 66 (1976).” State v. Ralston, 7 Conn. App. 660, 673, 510 A.2d 1346 (1986). There is probable cause to search where “ ‘(1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.’ (Emphasis in original; citations omitted.) State v. DeChamplain, [179 Conn. 522, 528-29, 427 A.2d 1338 (1980)]; see State v. Arpin, [188 Conn. 183, 448 A.2d 1334 (1982)].” State v. Delmonaco, 194 Conn. 331, 337, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984). In determining whether a warrant was lawfully issued, the reviewing court must consider only the information that was before the magistrate or judge at the time he or she signed the warrant. State v. Ralston, supra, 671.

Here, the affiants, O’Donnell and Bradley, provided the following information in their affidavit in support of the warrant: On January 2,1982, O’Donnell received a phone call from a confidential informant who had previously provided reliable information to the police. The informant told O’Donnell that during the week of December 28, 1981, to January 1, 1982, he had been in the defendant’s garage on route 80 near the North Branford-East Haven line visiting one of the defendant’s employees who was a friend. The employee told the informant that the defendant was involved in stealing new trucks and, in furtherance of that activity, altered their vehicle identification numbers. The informant also related that while in the garage he saw three trucks, two of which were black and one of which was red. He was told by the employee that one of the three trucks had been stolen in Cheshire during the week of December 20,1981. Finally, the informant told O’Donnell that the defendant was running an electrical business out of his garage.

On January 4, 1982, O’Donnell received a call from detective Ralph Puglia of the West Haven police department who said that an unnamed informant told him that the defendant had three pickup trucks in his garage, at least two of which were stolen. According to the informant, one of the trucks was stolen from North Branford while another was stolen from a Ford dealership located near routes 10 and 42 in Cheshire. The informant thought that the name of the dealership was Academy Ford. Three days later, the Cheshire police received a complaint from the sales manager at Dowling Ford, Inc., regarding a missing black Ford pickup truck bearing the vehicle identification number (VIN) 2FTCF10EGCCA20229 which he believed had been stolen from the dealership’s parking lot. Dowling, which was previously named Academy Ford, is located on route 10 in Cheshire approximately 200 yards from route 42. In an attempt to verify some of this information, Bradley contacted the department of motor vehicles and Southern New England Telephone Company and discovered that the defendant lived in East Haven, and had a phone listing for an electrical business at his home address.

On the basis of the information given in the affidavit, a reasonable man could justifiably believe that the black Ford pickup truck with the VIN 2FTCF10EGCCA20229 was the subject of criminal activity and that it would be found in the defendant’s garage. The first unnamed informant told the police that he had been at the defendant’s garage within a week before the warrant was sought and that while he was there he had seen three trucks, two of which were black. He also stated that he had been told by a friend, one of the defendant’s employees, that the defendant altered VIN numbers on stolen trucks and that one of the trucks then in the garage had been stolen in Cheshire during the week of December 20. This information was reinforced by information relayed by the West Haven police from the second informant who, only four days before the police sought the warrant, told them that the defendant had three trucks, two of them stolen, in his garage, and that one of the trucks had been stolen from Academy Ford. Finally, the day before the warrant was issued, the police received verification that during the time frame given by the employee, a black pickup truck with the VIN 2FTCF10EGCCA20229 had been stolen from Dowling Ford, Inc. This information, coupled with police corroboration of details provided by the informants, was sufficient to establish probable cause to believe that the black pickup truck was stolen and that it was then in the defendant’s garage.

It is, of course, axiomatic that the authority who issues the warrant, not the affiants, must determine whether probable cause exists to support the warrant. State v. DeChamplain, supra, 528. In the usual case, the requirement that the issuing authority independently determine probable cause presents no special problem. Where, however, a warrant is sought based on hearsay information provided by an informant who is unnamed and, therefore, unknown to the issuing authority, the magistrate may be hampered in the independent assessment of probable cause. Accordingly, the United States Supreme Court has established, and our Supreme Court has adopted; State v. Kimbro, 197 Conn. 219, 235-36, 496 A.2d 498 (1985); the two-prong Aguilar-Spinelli test for determining whether or not the judge or magistrate was entitled to authorize a warrant based on information provided by an informant. See Spinelli v. United States, 393 U.S. 410, 415, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 114, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). Under the Aguilar-Spinelli test, the magistrate or judge may credit information provided by an unnamed individual only where the affidavit discloses some of the underlying circumstances from which the informant derived his information and some of the underlying circumstances from which the affiant determined either that the informant was credible in general or that the information he provided was reliable on the occasion in question. Aguilar v. Texas, supra, 114; State v. Kimbro, supra, 235-36.

The information given by the first unnamed source passes the Aguilar-Spinelli test. The informant acquired part of his or her information through personal observation, and the magistrate was, of course, entitled to find a reliable basis of knowledge for that portion of the information. See State v. Jackson, 162 Conn. 440, 446, 292 A.2d 517, cert. denied, 409 U.S. 870, 93 S. Ct. 198, 34 L. Ed. 2d 121 (1972). The informant, however, also related information which was not derived from personal observation, that provided by the defendant’s employee. Accordingly, we must also determine whether the trial court was entitled to find that the employee had a reliable basis for his knowledge. See Spinelli v. United States, supra, 425. (White, J., concurring.) Here, there were factors from which the magistrate could have inferred that the employee had a reliable basis for his knowledge. While the affidavit did not contain an express statement that the employee acquired his information from personal observation, it strongly indicated that he did. The employee worked for the defendant and, although it is not clear what position he held, it is clear from the affidavit that he had access to the garage, the site of the alleged illegal activity. Accordingly, the authority issuing the warrant could reasonably infer that the employee had a reliable basis for his or her knowledge.

The credibility requirement of Aguilar-Spinelli was also fulfilled. Bradley and O’Donnell recited in their affidavit that the informant had previously provided reliable information to the police. “The previous reliability of an informant, though not constitutionally required, is a basis for crediting his information.” State v. Romano, 165 Conn. 239, 244, 332 A.2d 64 (1973).

The affidavit also contained sufficient detail from which the magistrate could reasonably infer that the information provided was reliable on this particular occasion. The reliability of an informant’s knowledge may be shown in several ways: (1) if the police corroborate some of the information; (2) if the informant makes declarations against penal interest; or (3) if the defendant has a reputation or a past criminal record consistent with that suggested by the informant. State v. Ferguson, 185 Conn. 104, 113, 440 A.2d 841 (1981). Here, the first of these factors was present. The police verified some of the information: that the defendant lived in East Haven, that he conducted an electrical business from his home address and that a black pickup truck had been stolen around the time the informant saw a black truck in the defendant’s garage. Finally, the information that the defendant was stealing pickup trucks was repeated by the second informant. “Dovetailing of information from different sources also provides corroboration.” State v. Ralston, supra, 673. In light of these factors, there was a sufficient basis for the magistrate to evaluate whether or not the information provided by the first unnamed police source should be believed and, accordingly, to make an independent determination of the existence of probable cause.

It is less clear whether the Aguilar-S'pinelli requirements were satisfied as to the information provided by the second informant. The affiant did not expressly state the basis of the second informant’s knowledge. A reliable basis of knowledge may, however, be inferred if the person providing the information gives the type of detail that would be available only to one who derived his information either in person or through other reliable means. Spinelli v. United States, supra, 416. Here, the second informant did provide the type of detail that indicates a reliable basis of knowledge. He stated that the defendant had three, four-wheel drive pickup trucks in his East Haven garage, located near the North Bran-ford line, that one of the trucks was stolen from North Branford and another from a Ford dealership near routes 10 and 42 in Cheshire, possibly named Academy Ford. Additionally, some of this information was corroborated by the police or by information given by the first informant. Under the circumstances, we cannot say that the issuing authority erred by concluding that there was a reliable basis for the second informant’s knowledge.

The information in the affidavit supporting the “credibility” or “reliability” prong of the test, however, was minimal. The affiants did not even claim that the second informant had previously provided reliable information or even that he was previously known to the police. There was, of course, corroboration of some of the information the second informant provided: that a truck had recently been stolen from Academy Ford and that there were three trucks in the defendant’s garage. We need not, however, determine whether this corroboration alone was sufficient to show the reliability of the information. Even if the information provided by the second informant did not alone satisfy the Aguilar-Spinelli test, the issuing authority, contrary to the defendant’s contention, was not required to ignore that information entirely when determining whether there was probable cause for the warrant to issue. State v. Delmonaco, 194 Conn. 331, 341, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984) (reviewing court need not ignore tip that alone did not satisfy Aguilar-Spinelli when determining whether affidavit sufficient to establish probable cause). “We note in this connection that it is not necessary that all the information listed in the affidavit meet this test. As long as one or more of the informants, taken singly or together, establish probable cause as gauged by Aguilar-Spinelli, the affidavit is sufficient to justify the issuance of the [warrant].” (Emphasis added.) State v. Ralston, supra, 674. As discussed above, the information provided by both unnamed informants taken together did establish probable cause to search the defendant’s garage. Accordingly, the search warrant was lawfully issued and, therefore, the trial court did not err in denying the defendant’s motion to suppress on this basis.

The defendant next argues that the fruits of the search of his garage should have been suppressed because the warrant issued violated the particularity requirement of the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution. The warrant the defendant challenges authorized the police to seize “Trucks, (a 1982, Ford Pickup truck, color black, model F-100, style Flair-side bearing VIN # 2FTCF10EGCCA20229). ’ ’ The defendant claims that the warrant was constitutionally infirm because the plural form of the word truck was used thereby authorizing the police to seize without limitation any trucks present in his garage. It is true, as the defendant claims, that a warrant which does not list the items to be seized with particularity violates the fourth amendment and article first, § 7, of the Connecticut constitution. See Marron v. United States, 275 U.S. 192, 196, 48 S. Ct. 74, 72 L. Ed. 231 (1927); State v. Pepe, 176 Conn. 75, 78, 405 A.2d 51 (1978). We disagree, however, with the defendant’s reading of the warrant. A common sense reading of the warrant indicates that the description information (“a 1982, Ford Pickup truck, color black, model F-100, style Flairside bearing VIN # 2FTCF10EGCCA20229)” was intended to particularize the category “Trucks.” Accordingly, the warrant authorized the police to seize only one very specifically described truck. It did not, therefore, violate the particularity requirement of either the fourth amendment to the United States constitution or article first, § 7, of the Connecticut constitution.

The defendant argues alternatively that the police exceeded the scope of the warrant by seizing portions of several trucks other than the one listed in the warrant. The state stipulates that items other than a black pickup truck were seized but argues that the seizure of the other articles was justified by the plain view doctrine. We agree with this view.

“The plain view doctrine may be invoked to validate the seizure of contraband or stolen goods not mentioned in a warrant where two requirements are satisifed: (1) the initial intrusion which enabled the police to view the items was lawful; and (2) the police had probable cause to believe that the items were contraband or stolen goods.” (Footnote omitted.) State v. Hobson, 8 Conn. App. 13, 18, 511 A.2d 348 (1986). It is clear, in light of our analysis of the validity of the warrant, that the first requirement for application of the plain view doctrine was satisfied: the police were lawfully present on the defendant’s property and in his garage when they saw the items they seized. The determinative question, then, is whether there was probable cause to believe that the seized items were contraband or stolen goods.

“Probable cause to believe that goods are stolen exists when there is enough trustworthy information supporting that proposition that a person of reasonable caution would be justified in believing it.” Id., 19. Here, three items seized during the January 8 search were used as the basis for three of the four counts of larceny against the defendant: a 1978 maroon Ford pickup truck with the VIN F14HEBJ4834, a 1979 blue Ford pickup with the VIN X-25JKE J7148, and a 1979 dual wheel Ford pickup truck with the VIN 37SNEA9849. Before seizing the maroon truck, the police determined that several tags containing its identification numbers had been removed, and that its federal mylar sticker, an inalterable identification marker, had been removed. They also knew, based on a telephone inquiry made during the course of the search, that it had been reported stolen within the previous two weeks. They had extensive grounds to believe that the blue truck, too, had been stolen. Its mylar identification sticker had been removed and its VIN tampered with. After checking with the department of motor vehicles from the scene, the police determined that the license plate the truck bore had been registered to a 1974 truck. It was clear to the police, however, that the truck was a much newer vehicle. Similarly, one of the tags on the dual wheel truck which bore its VIN had been tampered with while another had been hidden. The mylar identification sticker had been removed from this vehicle also.

In addition to the specific information they acquired concerning the three trucks they seized, the police had general information which indicated that the trucks were stolen. Before they entered the garage, the police had probable cause on the basis of the information provided by the two informants to believe that the defendant was involved in stealing trucks and altering their vehicle identification numbers. When they did execute the warrant, they immediately observed, in open view, parts of numerous vehicles scattered around incongruously in an electrical shop. While the vehicles were relatively new, and apparently undamaged, they were nevertheless partly disassembled. The police also discovered, in open view, tools used to disassemble vehicles, dies which could be used to stamp vehicle identification numbers, and a mutilated stolen license plate. Detective Charles Kelly of the Connecticut state police, who had extensive experience investigating automobile theft, testified at the hearing on the defendant’s motion to suppress that the presence of these items was consistent with “chop shop” activities, wherein stolen vehicles are disassembled so their parts may be resold. This information clearly was sufficient to establish probable cause to believe that the vehicles were stolen and, therefore, to allow the police to seize them pursuant to the plain view doctrine.

The defendant argues strenuously that there is a third requirement for application of the plain view doctrine: that the police discover the seized items inadvertently. He claims that the discovery in this case may not be characterized as inadvertent since the police entered his garage intending to conduct a rigorous and painstaking search. We reject the defendant’s contention. “There has been extensive dispute in the United States Supreme Court; see Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983); Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); over whether a third requirement, that the police discover the items inadvertently, should be applied. While this area has not been definitively resolved, it is clear that in Connecticut ‘inadvertence is not required if the items seized fall under the category of contraband, stolen property or objects dangerous in themselves.’ State v. Couture, 194 Conn. 530, 547, 482 A.2d 300, cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1984).” State v. Hobson, supra, 18 n.7. Accordingly, the police were entitled to seize the trucks pursuant to the plain view doctrine.

The defendant’s second claim is that the negative characterization of him during closing argument by the assistant state’s attorney was so prejudicial that it deprived him of his right to a fair trial. The state claims that the court should not review this ground of error because the defendant did not object to the remarks at trial. We agree with the state’s assertion. “Ordinarily, where a criminal defendant does not object and take exception to allegedly prejudicial remarks of the state’s attorney, either at the time they were made or at the close of argument, he waives his right to press the claimed error on appeal. State v. Lubesky, 195 Conn. 475, 484, 488 A.2d 1239 (1985); State v. Malley, 167 Conn. 379, 387, 355 A.2d 292 (1974). Where counsel fails to object or to request a curative charge ‘we have presumed that defense counsel did not view the remarks as so prejudicial that his client’s right to a fair trial was seriously jeopardized. State v. Lubesky, supra; State v. Falcone, 191 Conn. 12, 23 n.13, 463 A.2d 558 (1983).’ State v. Tyler-Barcomb, 197 Conn. 666, 673, 500 A.2d 1324 (1985).” State v. Chace, 199 Conn. 102, 108, 505 A.2d 712 (1986). This assumption is reinforced by the defendant’s failure to include the claim in his preliminary statement of the issues as is required by Practice Book § 3012. This court has previously shown a disinclination to review claims that do not comply with the mandates of that section. State v. DiStefano, 7 Conn. App. 726, 727 n.1, 510 A.2d 995 (1986); Wadsworth v. Zahariades, 1 Conn. App. 373, 375 n.4, 472 A.2d 29 (1984). After a careful review of the record, we see no reason to ignore the general rule. Under these circumstances, we conclude that the defendant waived his right to raise this claim.

Similarly, the defendant failed to include his third issue, that the trial court erred in allowing amendments to the information during trial, in his preliminary statement of the issues. We, therefore, decline to review this claim as well.

The defendant’s final claim is that the trial court erred in denying his motion for judgment of acquittal based on the alleged insufficiency of the evidence. To obtain a conviction under General Statutes §§ 53a-119 (8) and 53a-123 (a) (1), the state was required to prove beyond a reasonable doubt that the defendant, with the knowledge or belief that it had probably been stolen, received, retained or disposed of a stolen motor vehicle having a value of two thousand dollars or less. According to the defendant, the state failed to prove two of these elements: that what he received, retained or disposed of was a “motor vehicle” as defined by General Statutes § 14-1 (30), and that the value of the vehicle that formed the basis for the charge was less than $2000. “ ‘Appellate review of such a claim requires us to undertake a two step analysis. “We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985).’ State v. Brown, 198 Conn. 348, 352, 503 A.2d 566 (1986).” State v. Hobson, supra, 23-24. Having carefully reviewed the record, we find that the jury could reasonably have concluded that the state had met its burden of proving the defendant guilty of each charge beyond a reasonable doubt.

The defendant first claims that the state did not introduce sufficient evidence to prove that what he received, retained or disposed of was a motor vehicle, that is, “any vehicle propelled or drawn by any nonmuscular power.” General Statutes § 14-1 (30). The essence of this claim is that the defendant was convicted on one count of the information based on his possession of the bed of a red pickup. Since the bed of a truck alone cannot be propelled, the defendant argues that it cannot be considered a motor vehicle, and his conviction on this count, therefore, cannot stand. Even if we assume, arguendo, that the definition contained in General Statutes § 14-1 (30) controls, the defendant’s argument must fail. In reaching a verdict, the jury is entitled to draw all reasonable and logical conclusions that are supported by the evidence. State v. Little, 194 Conn. 665, 673, 485 A.2d 913 (1984). Here, the police found the bed of the truck in the midst of what appeared to be a chop shop, an operation where vehicles are disassembled and sold for parts. Under these circumstances, the jury could quite reasonably and logically conclude, solely on the basis of the presence of the bed of the truck, that the defendant, at one point, received, retained or disposed of the motor vehicle of which it was a part.

The defendant’s final claim is that the state failed to prove the element of value necessary for the crime beyond a reasonable doubt. General Statutes § 53a-123 (a) provides in part that “[a] person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and: (1) The property consists of a motor vehicle, the value of which is two thousand dollars or less. ” (Emphasis added.) The defendant asserts that the only testimony as to the value of the vehicles he was charged with receiving, retaining or disposing of established that each vehicle was worth more than $2000. He argues, therefore, that his conviction for larceny in the second degree can not stand.

We disagree with the defendant’s creative reading of General Statutes § 53a-123. When construing a statute, a court must try to discern what the legislature intended in enacting it. Landry v. Personnel Appeal Board, 138 Conn. 445, 447, 86 A.2d 70 (1952). If the language of the statute alone does not clearly indicate intent, intent must be determined “by considering [the statute] in the light of all of its provisions, the object which it seeks to accomplish, the pre-existing legislation upon the same subject matter, and all other relevant circumstances.” Id. When General Statutes § 53a-123 is analyzed in the light of the other provisions of the larceny statutes, its meaning becomes clear. Under General Statutes § 53a-122 (a) (3), a person who commits larceny of a motor vehicle is guilty of larceny in the first degree if the value of the vehicle exceeds two thousand dollars. Reading that statute together with General Statutes § 53a-123, we conclude that the latter does not establish a ceiling for prosecution for larceny in the second degree but, rather, provides a floor for prosecutions for larceny in the first degree. When the value of a stolen motor vehicle exceeds $2000 dollars, the individual who received, retained or disposed of it may be prosecuted for larceny in the first degree. We see nothing in the language, structure or history of the larceny statutes which indicates that he may not instead be prosecuted for larceny in the second degree, especially where, as here, the value determination is not a yardstick measure.

Such an interpretation of General Statutes § 53a-123 is supported by logic and common sense. By proving that the value of each vehicle involved exceeded $2000, the state necessarily and unequivocally proved that they were worth $2000 and all lesser amounts. “ ‘When two constructions are possible, courts will adopt the one which makes the [statute] effective and workable, and not one which leads to difficult and possibly bizarre results.’ Muller v. Town Plan & Zoning Commission, 145 Conn. 325, 331, 142 A.2d 524 (1958).”Maciejewski v. West Hartford, 194 Conn. 139, 152, 480 A.2d 519 (1984). The trial court did not err in denying the defendant’s motion for judgment of acquittal.

There is no error.

In this opinion the other judges concurred.

       Two separate informations, one charging a single count of larceny in the second degree, the other charging three counts of larceny in the second degree, were filed against the defendant. He was tried jointly under both informations and was convicted on all counts. Thereafter, two judgments of conviction, one for one count of larceny in the second degree and another for three counts of larceny in the second degree were rendered against the defendant. While the defendant appealed from each judgment separately, this court ordered that the appeals be combined.

       In State v. Kimbro, 197 Conn. 219, 235-36, 496 A.2d 498 (1985), our Supreme Court held that under certain circumstances article first, § 7 of the Connecticut constitution requires a more searching examination of whether probable cause exists than does the fourth amendment to the United States constitution. The court in that case, therefore, held that the more rigorous two-prong “veracity” and “basis of knowledge” test enunciated in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and refined in Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), and not the “totality of the circumstances” test enunciated in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527, reh. denied, 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983), must be applied to determine whether probable cause to search existed if probable cause was based in part on information provided by an informant. While Kimbro involved a warrantless search, this court has previously determined that the Kimbro holding governs even where the challenged search was authorized by a warrant. State v. Garcia, 7 Conn. App. 354, 358, 508 A.2d 824 (1986).

       We note that the affiants did not, as was done in State v. Romano, 165 Conn. 239, 244, 332 A.2d 64 (1973), relate how the previously provided information was proven reliable. They did not, for example, aver that convictions resulted or that the information was verified by the police. Rather, the affiants merely made an unsupported assertion of reliability. Given the other indicia that the information was reliable, we need not determine whether such a conclusory statement alone would be sufficient to establish informant credibility.

       We need not determine whether in the light of our Supreme Court’s decision in State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985), corroboration of innocent or noncriminal activity alone is sufficient to establish probable cause since in this case, probable cause was not based solely on corroboration of these allegations.

       Having determined that the January 8 search was lawful, we have also disposed of the defendant’s other claim: that the trial court erred by not suppressing the items seized during the later search of his garage.

       By this holding, we are in no way indicating approval of the comments made by the assistant state’s attorney. It is elementary that “[t]he prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence. ...” State v. Gold, 180 Conn. 619, 659, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980), quoting ABA Standards Relating to the Prosecution Function and the Defense Function § 5.8 (d) (1971).

       There were two informations, each of which was amended. See footnote 1, supra.


text:
    Larry Grier, Jr. v. West Haven Police Department
    (4345)
    Borden, Daly and Bieluch, Js.
    Argued June 10
    decision released July 15, 1986

      Daniel V. Presnick, for the appellant (plaintiff).

      Lewis S. Lerman, for the appellee (defendant).
   Per Curiam.

The plaintiff appeals from the judgment of dismissal of his action pursuant to Practice Book § 251 for failure to prosecute with reasonable diligence. The case began as a small claims action which the plaintiff brought for alleged violations of his civil rights pursuant to 42 U.S.C. § 1983. Upon the defendant’s motion, it was transferred to the regular docket, where the plaintiff filed an amended complaint in two counts spelling out in more detail his claims of federal civil rights violations. The defendant moved to strike the entire amended complaint on the ground that it failed to state a cause of action. The trial court, Hadden, J., granted the motion to strike.

Thereafter, instead of moving for judgment in favor of the defendant in order to secure a final judgment for purposes of appellate review of the ruling on the motion to strike, which the plaintiff was entitled to do and which was the proper procedural course; see, e.g., Practice Book § 157; Breen v. Phelps, 186 Conn. 86, 89, 439 A.2d 1066 (1982); Stamford Dock & Realty Corporation v. Stamford, 124 Conn. 341, 200 A. 346 (1938); 1 Moller & Horton, Connecticut Practice, Superior Court Civil Rules § 157; the plaintiff permitted the trial court, Fracasse, J., to render judgment dismissing the case pursuant to Practice Book § 251. He now appeals from that judgment of dismissal, seeking only to challenge the ruling on the defendant’s motion to strike. This he cannot do. The disciplinary judgment of dismissal pursuant to Practice Book § 251 was not an adjudication on the merits and would permit the plaintiff to reinstitute his action. Implicit in the dismissal was a waiver of the prior ruling of the court on the motion to strike the complaint. Purcell v. Slagle, 5 Conn. App. 417, 421, 498 A.2d 144 (1985).

There is no error.


text:
    Canton Village Construction, Inc. v. Kevin Huntington
    (4405)
    Dupont, C. J., Hull and Spallone, Js.
    Argued June 6
    decision released July 15, 1986

      Mark E. Lowell, for the appellant (plaintiff).

      James T. Flaherty, for the appellee (defendant).
   Hull, J.

The dispositive issues in this case concern the measure of damages for the negligent destruction of a beech tree and the adequacy of the evidence concerning such damages. The plaintiff brought a collection action against the defendant seeking some $5900 for excavation and related services it performed at the defendant’s residential construction site. The defendant counterclaimed alleging, in part, that the plaintiff had negligently destroyed a beech tree in the process of excavating a driveway. Pursuant to a factfinder’s findings, the trial court rendered, judgment for the plaintiff in the amount of $3065.44 on its complaint and for the defendant on his counterclaim in the amount of $5090. The plaintiff appeals from the judgment rendered in the defendant’s favor on the counterclaim.

The plaintiff objected to the factfinder’s report asserting that he had not stated the underlying facts on which he based his finding that the tree had a value of $5090. This objection was upheld and the case was remanded to the factfinder on this issue. On remand, the factfinder filed a supplemental finding of facts including the following information: (1) that the defendant’s witness, Oscar Stone, had worked as a horticultural consultant for two or three decades; (2) that he is a licensed arborist; (3) that based upon his observations and the use of a recognized formula, Stone was able fairly to approximate the value to particular real estate of trees of different kinds and sizes, predicated essentially on the aesthetic or environmental contribution of the tree to the property; (4) that the value of the underlying real property is not a significant element in determining the value of a tree on the real property; and (5) that Stone concluded that the tree contributed $5090 to the value of the land. The plaintiff objected to the acceptance of the supplemental finding of facts claiming that the finding of damages was invalid because an incorrect measure of damages was used and because the aesthetic and environmental value of the tree was not pleaded by the defendant in his counterclaim. This objection was overruled by the court.

The plaintiff now claims three grounds of error as follows: (1) that the court erred by failing to apply the appropriate measure of damages for destruction of the beech tree; (2) that the trial court erred by awarding any damages because there was an inadequate basis from which to measure them; and (3) the trial court erred by awarding damages based on the ornamental or aesthetic qualities of the tree because such damages were not specially pleaded.

The plaintiffs third claim of error is without merit. We conclude that the counterclaim, taking the facts it alleged favorably to the pleader, and viewing it in a broad fashion including the facts necessarily implied and fairly provable under it, sufficiently put the plaintiff on notice that the ornamental and aesthetic value of the tree would be claimed as damages. See Schmidt v. Yardney Electric Corporation, 4 Conn. App. 69, 74, 492 A.2d 512 (1985). Accordingly, the trial court did not err in considering the tree’s ornamental or aesthetic qualities.

We consider the first and second grounds of error together. There are three possible measures of damages for loss of a tree in Connecticut. The distinctions between the measures are clearly stated in Maldonado v. Connecticut Light & Power Co., 31 Conn. Sup. 536, 537-38, 328 A.2d 120 (1974): “Our Supreme Court has clearly stated our rule applicable in this type of situation as follows: ‘This is an action for a trespass to the land to which the trees in question were appurtenant. It is an appropriate remedy either for the recovery of damages for the mere unlawful entry upon the plaintiffs land; for the recovery of the value of the trees removed, considered separately from the land; or for the recovery of damages to the land resulting from the special value of the trees as shade or ornamental trees while standing on the land. For a mere unlawful entry upon land nominal damages only would be awarded. If the purpose of the action is only to recover the value of the trees as chattels, after severance from the soil, the rule of damages is the market value of the trees for timber or fuel. For the injury resulting to the land from the destruction of trees which, as a part of the land, have a peculiar value as shade or ornamental trees, a different rule of damages obtains, namely, the reduction in the pecuniary value of the land occasioned by the act complained of. Hoyt v. Southern New England Telephone Co., 60 Conn. 385, 390 [22 A. 957 (1891)].’ Eldridge v. Gorman, 77 Conn. 699, 701 [60 A. 643 (1905)]. This is the common-law rule. Under the facts as disclosed by this record, the proper measure of damages is either the market value of the tree, once it is severed from the soil, or the diminution in the market value of the plaintiffs’ real property caused by the cutting. Eldridge v. Gorman, supra.”

The plaintiff claims that the trial court erred by awarding damages based on the diminution of the market value of the defendant’s land because there was insufficient evidence as to that diminution. The defendant concedes that Stone, who provided the evidence of value, was not a real estate expert but rather was an “expert in the appraisal of trees and the value which trees add to a piece of real estate.” (Emphasis added.) Indeed, Stone testified clearly that he was not even aware of or concerned with the value of real estate but was a “horticultural appraiser.” The defendant argues, however, that Stone’s appraisal depended on the value which a tree of the size and species of the defendant’s tree could add to the defendant’s property and, therefore, also the value the site lost when the tree was destroyed. For this court to follow the circular reasoning urged by the defendant would constitute an end run around the long established rule set forth in Maldonado v. Connecticut Light & Power Co., supra, that “the proper measure of damages is . . . the diminution in the market value of the . . . real property caused by the cutting.” Id., 538.

The factfinder had no competent evidence of market values in the area and the effect of the destruction of the tree on the market value of the defendant’s property. Accordingly, he clearly applied an improper measure of damages, and the judgment cannot stand.

There is error in part, the judgment is affirmed except as to the amount of damages awarded on the counterclaim and a new trial is ordered limited to that issue.

In this opinion the other judges concurred.


text:
    State of Connecticut v. Peter P. Ventura, Jr.
    (4473)
    Borden, Daly and Bieluch, Js.
    Submitted on briefs June 12
    decision released July 15, 1986

      Peter P. Ventura, Jr., pro se, the appellant (defendant), filed a brief.

      John A. Connelly, state’s attorney, and Peter D. Markle, assistant state’s attorney, filed a brief for the appellee (state).
   Per Curiam.

The defendant appeals from the judgments of the trial court denying his motions for correction of his sentences pursuant to Practice Book § 935. Both the defendant, who appeared pro se in this appeal, and the state waived oral argument in this court. Accordingly, we have decided the appeal on the basis of the record and briefs. We find no error.

On October 7, 1983, the defendant, who was represented by private counsel, pleaded guilty under the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), to two separate substituted informations. Each information charged him with one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a). Both counts involved violent and repeated sexual assaults on teenage girls, one of whom was the babysitter for the defendant’s children. The second assault occurred while the defendant was free on bond on the first set of charges. The state agreed to recommend an effective sentence of not more than thirty years, and the defendant reserved the right to argue for a lesser sentence. At the sentencing proceeding on November 10, 1983, the defendant’s counsel requested an effective sentence of twenty years. The court accepted the state’s recommendation, and imposed consecutive sentences of fifteen years on each information, for a total effective sentence of thirty years.

On February 27, 1984, the defendant filed pro se motions to correct his sentences pursuant to Practice Book § 935. After a hearing, at which the defendant was represented by the public defender, the court denied the motions. The defendant did not appeal.

In December, 1984, the defendant filed new pro se motions for correction of his sentences. After a hearing, in which the defendant was represented by the public defender, the court denied his motion in each case. This appeal followed.

The common gist of the defendant’s motions in the trial court was that the probation officer who prepared the presentence investigation report after his pleas was biased against him and that certain of the information in the report was inaccurate. The defendant’s principal claim of error is that the trial court denied him an evidentiary hearing on his motion. The record belies his claim.

At the hearing on the defendant’s motion, the defendant’s counsel made an offer of proof of the testimony which he would introduce in support of the motion for correction of sentence. He suggested a procedure whereby the court would consider the offer of proof and, assuming its truth, would then set the matter down for an evidentiary hearing if the court determined that those asserted “facts” would support vacating the defendant’s sentences and resentencing him on the basis of a new presentence investigation report. The defendant, through his counsel, the state and the court, agreed to this procedure.

The court, in a thoughtful and detailed memorandum of decision, decided that, based on the defendant’s own offer of proof the alleged inaccuracies in the report which resulted from the claimed bias of the probation officer were within the defendant’s knowledge prior to the sentencing and should have been challenged at that time. See Practice Book §§ 919 (1) and 925; State v. Harmon, 147 Conn. 125, 129, 157 A.2d 594 (1960). The court, being abundantly fair to the defendant, nonetheless examined the defendant’s specific allegations of inaccuracies and determined that, even if established, they could not have reasonably affected the sentence which was imposed.

We have given the defendant’s brief the full measure of leeway traditionally accorded to pro se parties, particularly criminal defendants. Moreover, we have fully examined the transcripts of the pleas, of the sentencing proceedings, of the hearing on the defendant’s motions, and the trial court’s memorandum of decision. A thorough examination of the entire record persuades us that the defendant’s claims of error are without merit.

There is no error.

       The defendant filed one motion under two different docket numbers. We treat this single motion as separate motions filed in each case.

       Practice Book § 935 provides as follows: “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”

       The balance of his motion was based on claims of fact, outside the record in this case, which purported to show that his counsel at the time of his pleas was ineffective. We discovered, at the time this appeal was submitted for decision on the briefs, that the defendant also has pending in this court an appeal from the denial by the trial court, Kline, J., of a petition for habeas corpus based on that claim. The briefs have not yet been filed in that appeal. The trial court in this case, DeMayo, J., properly confined its inquiry to the claims of the defendant other than those relating to his claim of ineffective assistance of counsel, which was being pursued by way of his habeas corpus petition. See State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986).


text:
    Francis D’Addario v. Antone Viera
    (4181)
    Hull, Borden and Spallone, Js.
    Submitted on briefs June 19
    decision released July 15, 1986

      Brian P. Maher filed a brief for the appellant (plaintiff).

      James N. Olayos and William T. Browne filed a brief for the appellee (defendant).
   Per Curiam.

The plaintiff appeals from the judgment of the trial court awarding him nominal damages. We find no error.

The plaintiff claimed that the defendant stripped copper flashing and roofing from the plaintiff’s premises and converted them to his own use. The court found that the plaintiff had established the defendant’s liability but “that there has not been sufficient proof of damages.” Accordingly, the court rendered judgment for the plaintiff awarding him nominal damages of one dollar. The plaintiff’s appeal challenges the propriety of the award of nominal damages.

The evidence related to damages was scant at most. It consisted of the oral testimony by the plaintiff’s property manager as to the amount of the loss which he submitted to the plaintiffs insurance carrier. The figure to which he testified included, in addition to the copper which the defendant converted, loss of rental income and interior damage to the building resulting from water damage. There was no attempt to itemize his losses. No evidence was introduced as to the basis of these unallocated losses. We can hardly conclude that the trial court’s assessment of the weight of the evidence was clearly erroneous. Indeed, in the case on which the plaintiff principally relies; Maganini v. Coleman, 168 Conn. 362, 365, 362 A.2d 882 (1975); the Supreme Court did no more than direct that a judgment be rendered for the plaintiff in the nominal amount of $25.

There is no error.

       The named plaintiff died while this appeal was pending. The co-executors of his estate have been substituted as parties. We refer herein to the named plaintiff as the plaintiff.


text:
    State of Connecticut v. Bailey Cook III
    (4086)
    Dupont, C. J., Hull and Spallone, Js.
    Argued June 5
    decision released July 15, 1986

      James W. Walsh, for the appellant (defendant).

      Timothy D. Hayes, legal intern, with whom were James G. Clark, deputy assistant state’s attorney, and, on the brief, John J. Kelly, chief state’s attorney, for the appellee (state).
   Hull, J.

The defendant was convicted, after a jury trial, of interfering with an officer, a violation of General Statutes § hZa-lGla,, and disorderly conduct, a violation of General Statutes § 53a-182 (a) (l). He now challenges the judgment of conviction rendered against him, asserting as his only issue on appeal that the trial court erred in its instruction to the jury on the elements of the interfering offense. We conclude that the defendant did not properly preserve this claim and, accordingly, we decline to review it.

The testimony at trial revealed the following. On May 12,1984, officers from the Seymour police department were dispatched to a home to investigate a report that the defendant, a police officer, had taken his daughter there from her mother’s home in Ansonia in violation of a court ordered visitation schedule. When they arrived at the Seymour home, the police, who had previously been informed that a gun might be involved, encountered the defendant, who was quite upset, his daughter, his mother and other family members. They were told by the defendant’s mother that she had hidden his gun. One of the officers, who knew the defendant, talked to him and was able to calm him down substantially. A short time later, however, the officer saw the defendant struggling with his mother for control of the weapon. He intervened and knocked the gun to the floor. During the incident, the gun made contact with the officer’s stomach. Later, two police officers from the Ansonia police department arrived at the home and told the defendant that he was to be arrested for custodial interference and breach of peace. When the defendant questioned the officers’ authority to arrest him, a struggle ensued which resulted in the defendant’s being handcuffed, removed from the residence and placed in the patrol car. On the basis of this incident, the defendant was arrested pursuant to a warrant approximately four months later and was charged with the interfering and disorderly conduct offenses, the convictions for which he now challenges.

The defendant’s sole claim is that the trial court erred by instructing the jury on the interfering charge. While explaining the elements of the crime, the trial court informed the jurors that pursuant to General Statutes § 53a-23, the use of physical force to resist arrest was not justified. The defendant now argues that this discussion of resisting arrest was inappropriate because the state filed a bill of particulars in which it limited itself to proving that the interfering charge was based on the defendant’s pushing the gun into an officer’s stomach. He contends that the challenged instruction authorized the jurors to find that he committed the crime in another manner, by resisting arrest, and thereby encouraged a finding of guilty based on an uncharged theory of liability. The state claims that the defendant did not except to the charge on this basis and, accordingly, urges this court not to review the defendant’s claim.

Generally, this court will not consider error in a trial court’s instruction to the jury unless the challenged matter was included in a written request to charge or an exception was taken after the charge was given. Practice Book §§ 854 and 3063. “Additionally, the exception taken must ‘state distinctly the matter objected to and the ground of the exception.’ (Emphasis added.) Practice Book § 854. This requirement is imposed so that the trial court will be made aware of claims of error in time to take appropriate remedial steps. State v. Packard, 184 Conn. 258, 281, 439 A.2d 983 (1981). Accordingly, a trial court’s instructions to the jury will not be considered as error on appeal if the exception taken was ‘insufficient adequately to apprise the court of the deficiency in the charge in a manner which would permit the court to make a correction.’ State v. Peary, 176 Conn. 170, 182, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979).” State v. Alston, 5 Conn. App. 571, 573-74, 501 A.2d 764 (1985), cert. denied, 198 Conn. 804, 503 A.2d 1186 (1986).

While the defendant did take an exception to the court’s charge on resisting arrest, it was limited as follows: “If your honor please, I’d like an exception to the charge on resisting arrest and there was no justification. Section 53a-23. There’s no charge for resisting arrest here. I think that may have a prejudicial influence because he’s charged with disorderly conduct. He's not charged with resisting arrest. And I think that the instruction on that statute may make the jury feel that, with respect to the disorderly conduct, the fact that resisting arrest is an issue. ” (Emphasis added.) This exception was adequate to indicate to the trial court that the defendant believed that the instruction on resisting arrest might be prejudicial in light of the disorderly conduct charge. It was not, however, sufficient to “ ‘bring to the attention of the court the precise matter’ (emphasis in original) State v. Carter, 198 Conn. 386, 396, 503 A.2d 576 (1986); Woodruff v. Butler, 75 Conn. 679, 682, 55 A. 167 (1902); which the defendant now asserts as error: that by charging on resisting arrest, the trial court was allowing the jury to consider an uncharged theory for violation of the interfering statute. Because “[t]he exception to the charge was inadequate to alert the trial court to the specific deficiency now claimed on appeal”; State v. Carter, supra, 396; we decline to review this ground of error.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-167a provides in part: “A person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer or fireman in the performance of his duties.”

       General Statutes § 53a-182 (a) (1) provides: “(a) A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior . . . .”

       Apparently, the arrest made by the Ansonia police later was held to be illegal.

       The defendant was also charged with reckless endangerment, a violation of General Statutes § 53a-63 (a). He was acquitted of that charge.

       The state later filed an amended information to conform to the bill of particulars.

       Nor does this claim of error merit review under the fundamental rights-fair trial exception of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). “Under the Evans bypass rule ‘we must first determine whether the charge raises a question of constitutional dimension and, if so, whether the claim has merit. State v. Kurvin, 186 Conn. 555, 557, 442 A.2d 1327 (1982); State v. Evans, [supra, 70].’ State v. Torrence, 1 Conn. App. 697, 702, 476 A.2d 598 (1984) (Torrence I), aff’d, 196 Conn. 430, 493 A.2d 865 (1985) (Torrence II). If these two questions are answered affirmatively, we will then review the charge to see if there was error and if so, whether reversal is warranted. Torrence I, supra, 702-705.” State v. Alston, 5 Conn. App. 571, 575, 501 A.2d 764 (1985), cert. denied, 198 Conn. 804, 503 A.2d 1186 (1986). Here, the defendant’s claim arguably implicates a fundamental constitutional right: his right to notice of the nature of the charges against him. See State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986) (sixth amendment to the United States constitution and article first, § 8 of the Connecticut constitution guarantee a defendant a right to be specifically informed of the nature of the charges against him). The record, however, does not support a claim that the defendant was deprived of this right. A review of the trial court’s charge to the jury discloses that while the court did discuss the legality of the use of force to resist arrest, it repeatedly instructed the jury that the defendant was not charged with resisting arrest. Additionally, the trial court used the statutory language of General Statutes § 53a-167a four times during its charge and each time confined the offense to the struggle over the gun. Under these circumstances, the defendant’s claim does not warrant Evans review.