author: Lavery, J.

text:
    State of Connecticut v. Raymond Liptak
    (6681)
    Dupont, C. J., Borden and Lavery, Js.
    Argued October 19, 1989—
    decision released April 17, 1990

      Francis T. Mandanici, with whom, on the brief, was James Ruane, for the appellant (defendant).

      Mary H. Lesser, deputy assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, Stephen Sedensky, assistant state’s attorney, and Maria A. Kahn, legal intern, for the appellee (state).
   Lavery, J.

The defendant appeals from the judgment of conviction, after a jury trial, of robbery in the third degree in violation of General Statutes § SBa-IBG. He claims that the trial court erred (1) in failing to suppress a witness’ in-court identification of the defendant after that court had suppressed an earlier police station photographic identification by the witness as unduly suggestive and unreliable, and (2) in failing to suppress the evidence procured as a result of the warrantless search and seizure of the defendant’s car and its contents from his fenced-in backyard. We find no error.

I

The defendant’s first claim is that the trial court, having suppressed a witness’ police station photographic identification of the defendant, erred in failing to suppress the witness’ subsequent in-court identification as well. The following facts that could reasonably have been found by the jury are relevant to this claim.

On the morning of February 2, 1987, at approximately 10:15, the witness, Ronald Tortora, was sitting in his car in the parking lot of Mechanics and Farmers Bank. Something caught his eye in the rear view mirror! Looking in the mirror, he saw an elderly woman being mugged. For six seconds he saw the profile of the perpetrator, a man with a beard wearing very large, rounded, dark tinted sunglasses and a gray sweatshirt with the hood up. The assailant was struggling with the elderly woman for her pocketbook. Tortora then turned around and saw the victim lying on the ground, and the assailant running away toward the street. The entire duration of his observations, both through the rear view mirror and when he turned his head around, was approximately ten seconds.

Tortora turned back around to start his car in order to chase the assailant, who was out of his sight during the ten or fifteen seconds it took him to pull his own car into the street. With his car facing up William Street, Tortora looked for someone running or walking away and saw no one, but noted a maroon car travelling ahead of him at the speed limit on William Street. He decided to follow it to identify the driver. Tortora did not see where the car was coming from. He followed the car for two blocks with no other car in front of him. The car stopped at two stop signs. Both times, the driver of the car turned his head from side to side, enabling Tortora to view his profile. Although the driver was not wearing a sweatshirt, his profile, nose, beard and sunglasses matched those Tortora had seen at the bank, and he was certain that the driver was the assailant.

After viewing the assailant at the second stop sign, Tortora returned to the bank. He spoke to the victim, who told him that the assailant got into a red, late model car. He also described the assailant to the police and gave them the description of the maroon car and its license plate. Later that day, the police called Tortora to the police station to view a photographic array that included the defendant’s picture. At the police station, the police asked him to take a walk through the building. He was taken through one room where he saw from the back a profile of a long haired, bearded man sitting down. The police asked him if he saw anyone that looked familiar. He was then shown a pair of sunglasses that he heard the police say came from the car of the person arrested. He then identified the defendant from a photographic array of six photographs.

The defendant moved to suppress both the police station identification and the subsequent in-court identification. The trial court suppressed the identification at the police station but allowed the in-court identification.

The key to the admissibility of any identification evidence is its reliability. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Piskorski, 177 Conn. 677, 742, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). When a court decides whether a witness who made an earlier tainted identification may, nonetheless, identify the defendant at trial, the court must determine whether the earlier identification procedure “was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); see also State v. Gold, 180 Conn. 619, 655, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980). This is so because such “likelihood of irreparable misidentification” would destroy the reliability of a later, in-court identification.

The court must first determine whether the earlier identification was in fact impermissibly suggestive. See Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). The “corrupting effect of the suggestive identification”; Manson v. Brathwaite, supra, 114; must then be considered in light of the “ ‘totality of the circumstances’ ”; id., 113; that is, it must be weighed against several factors, including “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” Id., 114. The court is then prepared to determine whether, under the totality of the circumstances, the suggestiveness of the pretrial identification precludes the witness from making a reliable in-court identification.

By applying the above factors, the trial court found that, although the identification at the police station was unnecessarily suggestive and unreliable, Tortora’s in-court identification was reliable as it was based on his observation of the defendant during the crime rather than on the subsequent police station identification. See State v. Findlay, 198 Conn. 328, 339-40, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986); State v. Perez, 198 Conn. 68, 77, 502 A.2d 368 (1985); State v. Gold, supra, 657; State v. Piskorski, supra, 744-45. The trial court based this conclusion on its finding that Tortora was sophisticated, and that he was positive of the identification he gave before he went to the police station and was not shaken as to that description. Further, the court determined that the conduct of the police did not affect his ability to recall what he saw at the time the incident took place.

The record reveals that Tortora had a good opportunity to view the crime. He watched closely for ten seconds as the defendant committed the act in question. While following the defendant’s car, he observed the defendant looking from side to side at two intersections and saw his profile, dark sunglasses, and beard. On the basis of this observation, he was sure that he was viewing the defendant. The day was clear, and he had good vision and an unobstructed view.

Tortora knew that a crime had been committed and his attention, accordingly, was of a high degree. He was a detached observer who did not know the victim. He was under no emotional stress. Further, his description of the defendant, prior to the suggestive identification, was accurate. Officer Bernard Belcher of the Bridgeport police department testified that the defendant fit the description that was given by Tortora at the scene of the crime.

Finally, the in-court identification was not impermissibly distant in time from the incident itself. The trial took place approximately eight months after the crime. Our Supreme Court has held identifications made ten months after the crime to be reliable. State v. Parker, 197 Conn. 595, 600, 500 A.2d 551 (1985).

Our review of the record leads us to conclude that the trial court did not err in admitting Tortora’s in-court identification. The application of the reliability factors to this case supports the trial court’s conclusion that the in-court identification was based on Tortora’s observation of the defendant during the crime rather than on the subsequent police station identification. State v. Findlay, supra, 3.37-40; State v. Piskorski, supra, 744-45.

II

The defendant next claims that the trial court erred in denying his motion to suppress the victim’s identification of his vehicle and Tortora’s identification of his sunglasses. He argues that the evidence should have been excluded because of an allegedly illegal, warrant-less search and seizure of his car while it was in his private driveway. We disagree.

The trial court had the following additional facts before it. After receiving Tortora’s description of the assailant, the car and its license number, and after noting the victim’s description and her observation that the assailant drove away in a red car, the police went to the address to which the car’s license plate was registered.

Officer Philomena Lula of the Bridgeport police department testified that on the day in question she heard a police broadcast concerning a robbery that had just occurred, that the car involved was a maroon Pontiac with a particular license plate number, and that the suspect wore dark sunglasses. This information enabled Lula to obtain the name and address of the car’s registered owner.

When Lula arrived at the premises, she saw the defendant’s maroon car, parked in the driveway with the front facing the street. The car had no front license plate. The defendant’s backyard was a paved area surrounded by a fence with an open gate for the driveway. Lula went to the car and felt its hood, which was warm, and checked the license plate, which matched the one in the broadcast. Inside the car, in plain view, was a pair of dark sunglasses.

Lula and her partner knocked on the front door of the defendant’s house and received no answer. The officers went to the back door, and the defendant eventually came to the door. When the officers told the defendant he was wanted for questioning, he became uncooperative and argumentative, and refused to go to the police station. He was arrested for disorderly conduct. The defendant, after hesitation, gave the officers the keys to his car and they seized the sunglasses. They also seized the car and towed it away.

That afternoon the victim was taken to a police lot in which about one hundred cars were stored. She identified the defendant’s car, and at trial identified a photograph of the defendant’s car.

The defendant’s claim is that the entry by the officers onto his private property and their visual examination of his car constituted a search offensive to the fourth amendment, and that the fruit of that unconstitutional search could not form the basis of probable cause to seize the vehicle and its contents. The defendant’s claim, however, founders on the trial court’s correct legal conclusion that the initial entry and examination of the car were permissible under the fourth amendment.

The question of whether a warrantless search of an area adjacent to a house is constitutionally forbidden turns on whether the search “constitutes an intrusion upon what the resident seeks to preserve as private even in an area which, although adjacent to his home, is accessible to the public.” Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). “If one has a reasonable expectation that various members of society may enter the property in their personal or business pursuits, he should find it equally likely that the police will do so.” State v. Corbett, 15 Or. App. 470, 475, 415 P.2d 487 (1973); see also State v. Brown, 198 Conn. 348, 357, 503 A.2d 566 (1986); State v. Byrne, 149 Vt. 224, 542 A.2d 276 (1988).

In determining whether a resident can have a reasonable expectation of privacy in a given portion of his or her property, courts may consider, among other relevant factors (1) the proximity to the house of the area claimed to be curtilage, (2) whether the area is included within an enclosure surrounding the house, (3) the nature of the uses to which the area is put, and (4) the steps taken by the resident to protect the area from observation by people passing by it. United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987). When the police, having come onto private property to conduct an investigation, restrict their movements to areas that, under the above analysis, are considered semi-public, observations made from that vantage point are not illegal under the fourth amendment. 1 W. LaFave, Search and Seizure § 2.3 (f), pp. 412-13.

The defendant’s car was parked on his driveway and was easily observed from the street. See United States v. Magana, 512 F.2d 1169 (9th Cir. 1975). Although the defendant’s paved backyard was surrounded by a fence, the court heard testimony that the driveway gate was always kept open, including during the time in question. See, e.g., United States v. Humphries, 636 F.2d 1172 (9th Cir. 1980) (no search occurred where driveway was not enclosed by a fence, shrubbery or other barrier). Although it is unclear from the record whether the officers could have reached the back door without passing the defendant’s car, it is undisputed that the driveway was a principal means of ingress and egress to the property. See State v. Pike, 143 Vt. 283, 465 A.2d 1348 (1983). Moreover, the acts in question took place in the late morning. Compare Brown v. State, 392 So. 2d 280 (Fla. App. 1980) (search occurred when police drove all the way up defendant’s driveway and observed defendant on back porch at 1:45 a.m., a time when visitors would not ordinarily call).

On the basis of the foregoing, we agree with the trial court’s conclusion that the defendant had a diminished expectation of privacy in his driveway. It therefore did not constitute an illegal search for the police to enter the defendant’s driveway, proceed to his car parked thereon, and visually examine that vehicle from the exterior. From that vantage point they observed the vehicle’s license plate number, a pair of black sunglasses on the dashboard, and, by touching the hood, noted that the engine was warm and had been driven recently.

The defendant claims, however, that even if the information gathered by the police on the defendant’s driveway is combined with the facts known collectively by the Bridgeport police at that time, the sum still does not constitute probable cause for the seizure of the defendant’s car and sunglasses. We disagree.

Warrantless searches and seizures of automobiles are permissible when based upon probable cause to believe that the vehicle contains contraband or evidence pertaining to a crime. United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982); State v. Dukes, 209 Conn. 98, 547 A.2d 10 (1988); State v. Badgett, 200 Conn. 412, 424, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986); State v. Martin, 2 Conn. App. 605, 482 A.2d 70, cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1984). This exception to the warrant requirement has two principal justifications. First, automobiles or other vehicles can be moved quickly outside the jurisdiction of the magistrate from whom the warrant must be sought. See South Dakota v. Opperman, 428 U.S. 364, 367, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976); Carroll v. United States, 267 U.S. 132, 153, 45 S. Ct. 280, 69 L. Ed. 543 (1925). Second, the expectation of privacy in one’s vehicle is reduced by the pervasive regulations governing vehicles capable of traveling upon public roads. See South Dakota v. Opperman, supra, 367-68; Cady v. Dombrowski, 413 U.S. 433, 440-41, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973).

For the vehicle exception to apply, “[t]he probable cause determination must be based on objective facts that could have justified the issuance of a warrant by a neutral magistrate at the time the search was made. United States v. Ross, supra, 808.” State v. Badgett, supra, 429. “ ‘ “Probable cause to search exists if (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)].’ 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).” State v. Badgett, supra.

The factual information available to the state at the time the officers seized the car and its contents was adequate to establish probable cause for the seizure. The police were aware of the following facts prior to their seizure of the car. A robbery had been reported at 10:21 a.m.; an eyewitness to the incident had seen someone who he was certain was the robber driving away from the locus of the robbery in a maroon car bearing a license plate registered in the defendant’s name; the victim had seen the robber jump into a “red” car and drive off; and when the police arrived at the defendant’s house at approximately 10:35 a.m., a car matching the description given by the victim and the eyewitness was parked in the defendant’s driveway, and, as indicated by the warm hood, had been recently operated. Finally, the assailant wore black sunglasses, and a pair of black sunglasses was seen inside the defendant’s car.

On the basis of these facts, a person of reasonable caution would have been warranted in the belief that the car and sunglasses might have been useful as evidence of a crime. See Texas v. Brown, 460 U.S. 730, 743, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983). Thus, the seizure of the car and sunglasses was lawful, under the vehicle exception, and their subsequent use as evidence was not tainted.

Lastly, we must address the defendant’s claim that, even if there was adequate probable cause to justify the search under the vehicle exception, that exception does not apply where, as here, the defendant’s car was found stationary in a place regularly used for residential purposes. To support this argument, the defendant misreads the following isolated passage in Californian. Carney, 471 U.S. 386, 392-93,105 S. Ct. 2066, 85 L. Ed. 2d 406 (1985): “When a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes—temporary or otherwise—the two justifications for the vehicle exception come into play.”

In Carney, the court had to decide whether the vehicle exception applied to the defendant’s mobile home. The defendant argued that, because his mobile home bore many of the hallmarks of a private residence and was capable of being used as such, it did not come within the exception. The court, in a narrow decision, rejected this argument on the strength of the factual observation that the defendant’s mobile home was “readily mobile” and was “so situated that an objective observer would conclude that it was being used not as a residence, but as a vehicle.” Id., 393.

The court, however, declined to pass on the application of the vehicle exception to a motor home “situated in a way or place that objectively indicates that it is being used as a residence.” (Emphasis added.) Id., 394 n.3. Thus, in context, the passage from Carney quoted by the defendant refers to motor homes whose “place” or “situation” objectively indicates that they are not being used for residential purposes. The quoted passage has nothing to do with automobiles parked in residential driveways, and, accordingly, does not affect the present case.

There is no error.

In this opinion the other judges concurred.

       The defendant was also charged with larceny in the second degree in violation of General Statutes § 53a-123, and assault of a victim sixty years or older in the third degree in violation of General Statutes § 53a-61a, but was found not guilty on those counts.

       At the time they decided to seize the car and sunglasses, the police knew that those articles were on the defendant’s driveway. Thus, there is no controversy concerning the second prong of the Badgett probable cause test. State v. Badgett, 200 Conn. 412, 429, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    Michael D. Williams v. George W. Bronson, Warden
    (7300)
    Dupont, C. J., Spallone and Barnett, Js.

      Argued November 14, 1989
    decision released April 17, 1990

      Neal G. Cone, special public defender, for the appellant (petitioner).

      John O’Meara, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Edward Ricciardi, assistant state’s attorney, for the appellee (respondent).
   Dupont, C. J.

The petitioner was convicted, after a trial to the court, Falsey, J., of the crimes of burglary in the second degree in violation of General Statutes § 53a-102 (a) and of interfering with a police officer in violation of General Statutes § 53a-167a (a). He was sentenced to a term of imprisonment of seven years and four months, followed by three years of probation. The convictions were upheld in State v. Williams, 205 Conn. 456, 534 A.2d 230 (1987). The petitioner subsequently filed a petition for a writ of habeas corpus based on an allegation of ineffective assistance of counsel. After a hearing, the habeas court denied his petition and certified its decision for review by this court. We find no error.

The underlying facts are set out in detail in State v. Williams, supra, 457-58. We summarize those facts relevant to the issues in the present appeal. The victim met the petitioner at the home of a friend. The petitioner offered to sell the victim a tape player, which she agreed to buy. He then accompanied her on the five or ten minute walk to her apartment so that she could get the money for the purchase. After the sale was completed, the petitioner left the apartment, and the victim locked up and went to bed, leaving the kitchen partially illuminated by a pantry light and a porch light. Between 3:30 and 4 a.m., she awoke and, from her bed, saw a man leaning over her kitchen table with his back to her. When she screamed, he turned and looked at her. She then telephoned the police, describing the intruder as a black male wearing a blue jacket, gray pants, a light cap and sunshades.

The police broadcasted a description of the intruder on the police radio. About four minutes after the call was broadcast, the petitioner was stopped, 200 yards from the victim’s home, by two officers in a patrol car, and he was informed that he fit the description of a suspect in a burglary that had just occurred nearby. He was also informed that the victim was being brought to the site to see if she could identify him as the intruder. The petitioner then created a disturbance, as a result of which he was forcibly subdued, handcuffed and arrested on a charge of breach of the peace. Upon the victim’s arrival, she positively identified the petitioner as the intruder. Later that day, she informed police that the petitioner was also the man who had sold her a tape player a few hours earlier that evening. At trial, she again identified the petitioner as the intruder.

Following his conviction and the denial of his habeas corpus petition, the petitioner appeals claiming that the habeas court erred in not finding that he had ineffective assistance of counsel (1) as to the issue of the identification of him as the perpetrator, and (2) as to his plea. The habeas court’s decision was based on its finding of insufficient prejudice as to the identification issue and on the petitioner’s failure to sustain his burden of proving by a preponderance of the evidence the inadequacy of the advice of counsel as to the plea entered.

The right to effective assistance of counsel is assured by the sixth and fourteenth amendments to the federal constitution and article first, § 8, of the Connecticut constitution. The right of a defendant to effective assistance is not, however, the right to perfect representation. State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 (1977); Chace v. Bronson, 19 Conn. App. 674, 678, 564 A.2d 303 (1989). To prevail on a claim of denial of effective assistance, the petitioner bears the burden of proving that the services provided him by trial counsel were not reasonably within the range of competence possessed by lawyers "with ordinary training and skill in the criminal law. Levine v. Manson, 195 Conn. 636, 639, 490 A.2d 82 (1985). He must also show “that this lack of competency contributed so significantly to his conviction as to have deprived him of a fair trial.” Herbert v. Manson, 199 Conn. 143, 144-45, 506 A.2d 98 (1986). The reviewing court must employ a strong presumption of the reasonableness of that counsel’s assistance. Levine v. Manson, supra, 640; Chace v. Bronson, supra, 678. The assistance must be viewed in light of the circumstances that existed at the time, and not with either the benefit or the distortions of hindsight. Levine v. Manson, supra. Even if that assistance is found to have been lacking in competency, the petitioner bears the further burden of showing that there is a reasonable probability that, were it not for .the deficiency of counsel, the result of the trial would have been different. Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 206 (1989).

We turn first to the petitioner’s claim that his attorney’s failure to challenge the show-up identification of the petitioner was ineffective assistance of counsel. For the petitioner’s motion to suppress to have succeeded, the court would have to determine that the procedure was unnecessarily suggestive and that, in the totality of the circumstances, it was unreliable. State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980). The petitioner claims that the show-up procedure was unnecessarily suggestive because (1) prior to the victim’s arrival at the scene of the show-up, the police had informed her that they had the suspect, (2) he was presented to the victim for identification in handcuffs and “flanked by police officers,” and (3) he was the sole subject of the show-up.

Almost any one-to-one identification procedure is suggestive because it conveys to the viewer that police have reason to believe that the lone subject of the viewing is guilty. State v. Middleton, 170 Conn. 601, 608, 368 A.2d 66 (1976). It would be difficult, therefore, to argue that the show-up in this case was not suggestive, but whether it was unnecessarily so is the question.

“[Pjrompt on-the-scene confrontations tend under some circumstances to ensure accurate identifications and . . . the benefits of promptness not only aid reliability but permit a quick release of an innocent party if there is no positive identification, allowing the police to resume the investigation with only a minimum of delay.” State v. DeJesus, 7 Conn. App. 309, 315-16, 508 A.2d 463 (1986); State v. Sims, 12 Conn. App. 239, 242, 530 A.2d 1069 (1987), cert. denied, 206 Conn. 801, 535 A.2d 1315 (1988). Here, the show-up procedure was held less than an hour after the burglary was committed and the petitioner was stopped, approximately one block from the scene of the break-in, only four minutes after the victim’s call. The race, sex, clothing and sunglasses of the petitioner fit the description of the intruder that the victim had just given.

The promptness of the show-up in this case aided reliability and would have made possible the immediate release of the petitioner if the victim had not identified him, thus minimizing the limitation on the petitioner’s liberty. The police officers at first merely asked the petitioner to sit in the police car to await the arrival of the victim. It was the petitioner’s own conduct in creating a disturbance that necessitated that he be subdued, handcuffed, “flanked by police officers” and placed under arrest. Under these circumstances, the show-up was not unnecessarily suggestive.

Even if the show-up had been unnecessarily suggestive, the identification was not unreliable in the totality of the circumstances surrounding the identification, based on the five factors enunciated in Manson v. Brathwaite, 432 U.S. 98, 114-16, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).

Here, although the victim’s opportunity to view the petitioner was brief, she must have seen him clearly enough and for long enough to be able to testify that he looked at her, that he was a black man and that he was wearing gray pants, a blue jacket, a light cap and sunshades. A view of even a few seconds may be sufficient for a witness to make an identification. State v. Piskorski, 177 Conn. 677, 743, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). This court has held similarly. State v. Cubano, 9 Conn. App. 548, 553-54, 520 A.2d 250 (1987); State v. Tate, 9 Conn. App. 141, 146, 516 A.2d 1375 (1986). It is for the trier of fact to determine the weight to be given that identification. State v. Mitchell, 204 Conn. 187, 202-203, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987).

The degree of attention paid by the victim in this case was sufficiént to enable her to give police the previously cited description, nearly simultaneously with her observation of him. The petitioner has offered no evidence to suggest any inaccuracy or uncertainty in either her description or her identification of him as the intruder. These factors indicate that the victim had the ability to make a reliable identification, and any statement by the police to the victim about their holding of a “suspect” did not dilute or corrupt that reliability, under the circumstances of this case. See Manson v. Brathwaite, supra, 116.

Further, trial counsel stated, under oath, that it was a conscious decision of trial strategy, rather than neglect, that led counsel not to seek suppression of the show-up identification. The petitioner must overcome the strong presumption that this decision on trial strategy was sound. Levine v. Manson, supra. Such a decision has specifically been held to constitute part of a defense counsel’s trial strategy. Murray v. Maggio, 736 F.2d 279, 283 (5th Cir. 1984). A decision of counsel to try to discredit an identification through cross-examination rather than through a motion to suppress may be a sound decision. See Williams v. Abshire, 544 F. Sup. 315, 318 (E.D. Mich. 1982); Commonwealth v. Drayton, 386 Mass. 39, 42, 434 N.E.2d 997 (1982). “Whether to afford a witness an opportunity to rehearse his testimony at a suppression hearing, especially when the prospects of suppression are negligible, is very much a tactical decision, not easily characterized as ineffective assistance of counsel.” Commonwealth v. Florentino, 396 Mass. 689, 691, 488 N.E.2d 403 (1986). People v. Conley, 118 Ill. App. 3d 122, 131, 454 N.E.2d 1107 (1983).

In the present case, counsel stated in a deposition that, prior to trial, she interviewed the victim and that, as a result, she believed that a motion to suppress was unlikely to be granted and that she could more successfully challenge the identification of the petitioner at trial. This was because, based on her interview of the victim, she believed that the victim had not actually seen the intruder’s face and that the victim’s identification would, therefore, be vulnerable. Counsel then made the conscious decision not to seek a suppression hearing in order not to “educate” the state or the witness as to the weakness of the identification or as to how she would attack it at trial.

The petitioner claims, however, that counsel’s pretrial investigation with respect to the identification of him by the victim was inadequate. To succeed in his attack on the adequacy of counsel’s pretrial investigation, the petitioner must show both that the investigation was inadequate, not merely imperfect; State v. Barber, supra, 161; and that, had it not been for the inadequate investigation, there is reasonable probability that the outcome would have been different. Aillon v. Meachum, supra; Chace v. Bronson, supra.

The petitioner argues that the pretrial investigation conducted by counsel was inadequate essentially because counsel failed to obtain in writing certain alleged statements of the victim to the effect that she did not see the intruder clearly at the time of the break-in. Counsel, accompanied by an investigator, interviewed the victim on one occasion. The investigator made no notes or report of the interview.

Following the positive in-court identification of the petitioner by the victim and the victim’s testimony concerning her prior positive identification at the show-up, counsel presented the investigator as a witness. The investigator testified that the victim indicated that at the time of the break-in she “couldn’t make . . . out” the intruder’s face and “couldn’t identify him,” and that, at the show-up, she “couldn’t get a good look at” the petitioner because “his face was bent down.”

The petitioner has not shown that, in the circumstances known to counsel at the time, her failure to have the alleged statements of the victim memorialized in writing constituted ineffective assistance, nor has he shown that the failure to obtain the statements in writing contributed to his conviction. Counsel interviewed the victim, presented the investigator as a witness in an effort to impeach the victim’s trial testimony, visited the scene of the burglary, reviewed the state’s file, interviewed witnesses in an effort to present an alibi defense and consulted an expert regarding the victim’s ability to identify the petitioner properly. We find that counsel’s pretrial investigation was reasonable under the circumstances known to her at the time and that her failure to attempt to have the statements memorialized in writing did not constitute ineffective assistance of counsel.

The petitioner also claims that counsel’s failure to object to the in-court identification of him was ineffective assistance. In-court identification testimony need be excluded only where it is tainted by an unnecessarily suggestive out-of-court identification procedure “conducive to irreparable misidentification.” State v. Smith, 200 Conn. 465, 470, 512 A.2d 189 (1986). Since we find that the out-of-court identification procedure in this case was not unnecessarily suggestive and was reliable, there was little likelihood that a motion to suppress the out-of-court identification would have been granted or that an objection to the in-court identification would have been sustained. Consequently, counsel’s failure to object to the in-court procedure was unlikely to have affected the outcome of the petitioner’s trial. The lack of objection by counsel, therefore, did not render her assistance ineffective. The habeas court was correct in finding that the petitioner failed to show sufficient prejudice with regard to the identification of him by the victim because he did not prove that the result of his trial would have differed had his trial counsel sought suppression of either his out-of-court or in-court identification.

Finally, on the basis of his allegation of an inadequate pretrial investigation, the petitioner claims that the habeas court erred in not finding that he had ineffective assistance as to his plea of not guilty. At the habeas hearing, trial counsel stated that, prior to trial, she informed the petitioner of the victim’s statements that “she had not seen the perpetrator’s face and had not seen Mr. Williams’ face at the time of the show-up” and of her belief that those statements “would potentially lead to a successful challenge to [the victim’s] ability to make a legally sufficient identification.” (Emphasis added.) Because he was informed of those statements, the petitioner alleges that he made his decision to go to trial, rather than to accept the state’s plea offer, on a “fundamentally flawed basis.”

Defense counsel averred at the habeas hearing that she told the petitioner prior to trial that she believed in the potential for a successful challenge to the identification, not in its certainty. Further, the habeas court concluded that, in addition to informing her client of these statements by the victim, counsel “advised petitioner that his alibi witness or witnesses would be weak . . . that the complaining witness would be a highly credible witness, and that counsel believed petitioner would be a poor witness. Counsel warned him that there was a great risk of conviction and that his exposure to a severe sentence was very high.” The petitioner elected to go to trial rather than to accept the plea bargain negotiated by counsel. Counsel was correct in informing the petitioner of both favorable and unfavorable information with respect to his chances of success at trial. We, therefore, conclude that the habeas court was correct in its judgment that the petitioner failed to prove that his plea was the result of the ineffective assistance of counsel.

There is no error.

In this opinion the other judges concurred.

       In two cases cited by the petitioner to support his argument that failure to file a motion to suppress an identification constitutes ineffective assistance of counsel, trial counsel either had conducted no pretrial investigation and was not prepared to proceed on a suppression motion; State v. Watson, 134 Ariz. 1, 2-3, 653 P.2d 351 (1982); or counsel failed to challenge the identification either through a motion to suppress or through cross-examination at trial. Soltys v. Adams, 465 F.2d 1023, 1028-29 (2d Cir. 1972). Neither combination of circumstances is present in this case.


text:
    George Enquist v. General Datacom et al.
    (8222)
    Dupont, C. J., Poti and La very, Js.
    Submitted on briefs January 11
    decision released April 17, 1990

      T. Stevens Bliss filed a brief for the appellant (plaintiff).

      Jason M. Dodge filed a brief for the appellee (named defendant).
   Lavery, J.

The plaintiff appeals from a decision of the workers’ compensation review division holding that the defendants, an employer and its insurance company, are entitled to a credit equal to the plaintiff’s net recovery from a third party tortfeasor for injuries resulting from an industrial accident.

The facts are not in dispute. On February 27,1979, the plaintiff, during the course of his employment, crushed the thumb of his left, nonmaster hand while working on a machine. The plaintiff received compensation benefits pursuant to the workers’ compensation statutes. General Statutes § 31-291 et seq. On June 11, 1980, the plaintiff initiated a third party action against Burndy Corporation, the manufacturer of the machine he was operating at the time of his injury.

On July 7, 1980, the defendants, pursuant to General Statutes § 31-293 (a), timely intervened in the plaintiff’s third party action. On October 23,1981, the plaintiff, the defendant employer, and the defendant insurance carrier entered into a voluntary agreement awarding the plaintiff 20.3 weeks of compensation as a specific injury award resulting from a 25 percent loss of use of the nonmaster thumb. At the time of the agreement, there was no mention of any probable future payments on account of the injury.

In September, 1984, the third party action was settled in court for the sum of $30,000, of which $2500 was paid to satisfy the defendants’ lien for workers’ compensation benefits paid to that point. The defendants made no claim for any probable future payments on account of the injury. The plaintiff received a net recovery of $16,556.50.

After the settlement, the plaintiff filed for additional compensation from the defendants based on an increase in the percentage of disability to his thumb. The commissioner denied any further award, finding that the employer had a continuing, offsetting lien from the settlement of the third party action. At no time before or at the termination of the third party action did the commissioner establish an amount equal to the present worth of any probable future payments that the employer would become obligated to pay. The plaintiff appealed to the compensation review division, which affirmed the decision of the commissioner, relying on its decision in Love v. J. P. Stevens & Co., 378 CRD-7-85 (November 10, 1988). In this court’s decision on the appeal from the compensation review division in Love v. J. P. Stevens & Co., 21 Conn. App. 9, 570 A.2d 1136 (1990), we recently found error. On the basis of that decision, we find error here.

In Love, as in this case, the sole issue was whether a workers’ compensation commissioner has the authority to award a credit in the amount of a worker’s net recovery from a third party tortfeasor, thereby relieving the employer of its obligations under the workers’ compensation statutes until such a time as the worker’s expenses relating to the injury exceed that credit. In Love, this court decided that the commissioner does not have that authority. Id., 13.

General Statutes § 31-293 (a) provides that where an employer joins an employee in an action to recover damages from a third party responsible for an injury compensable under the workers’ compensation statute, the employer’s claim “shall take precedence over that of the injured employee.” The statute defines the employer’s claim as “(1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of such injury.” General Statutes § 31-293 (a). It is only when the amount received from the third party exceeds the employer’s claims that the employee receives anything. Love v. J. P. Stevens & Co., supra, 14.

“Section 31-293 is the exclusive route for an employer to assert a claim over any portion of an employee’s recovery from a third party. In Skitromo v. Meriden Yellow Cab Co., 204 Conn. 485, 489, 528 A.2d 826 (1987); our Supreme Court held that an employer must strictly comply with the procedures of § 31-293 (a). In that case, the employer failed to follow the statutory mandate, and as a result, ‘any right of the [employer] to the [employee’s] third party recovery, including the alleged right to credit that recovery against future liability, was extinguished.’ Id.” Love v. J. P. Stevens & Co., supra.

To recover for future expenditures, an employer must assert a claim before the termination of the action against the third party. Failure to do so will result in the claim being waived. Id., 18.

At the time of the settlement in September, 1984, the defendants did not preserve their claim for future payments. They asserted only their claim to the original $2500 award. The net proceeds from the settlement of $16,556.50 are not subject to any credit in favor of the defendants.

There is error, the decision is set aside and the case is remanded to the compensation review division for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       General Statutes § 31-293 (a) provides: “When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of such injured employee against such other person, but such injured employee may proceed at law against such person to recover damages for such injury; and any employer having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such other person to recover any amount that he has paid or has become obligated to pay as compensation to such injured employee. If either such employee or such employer brings such action against such third person, he shall forthwith notify the other, in writing, by personal presentation or by registered or certified mail, of such fact and of the name of the court to which the writ is returnable, and such other may join as a party plaintiff in such action within thirty days after such notification, and, if such other fails to join as a party plaintiff, his right of action against such third person shall abate. In any case in which an employee brings an action against a third party in accordance with the provisions of this section, and the employer is a party defendant in such action, the employer may join as a party plaintiff in such action. The bringing of any such action against an employer shall not constitute notice to such employer within the meaning of this section. If such employer and employee join as parties plaintiff in such action and any damages are recovered, such damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of such recovery, after the deduction of reasonable and necessary expenditures, including attorneys’ fees, incurred by the employee in effecting such recovery. The rendition of a judgment in favor of the employee or the employer against such party shall not terminate the employer’s obligation to make further compensation, including medical expenses, which the compensation commissioner thereafter deems payable to such injured employee. If the damages, after deducting the employee’s expenses as provided above, are more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse him for his claim, and the excess shall be assessed in favor of the injured employee. No compromise with such third person by either employer or employee shall be binding upon or affect the rights of the other, unless assented to by him. For the purposes of this section the employer’s claim shall consist of (1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of such injury. The word ‘compensation’, as used in this section, shall be construed to include not only incapacity payments to an injured employee and payments to the dependents of a deceased employee, but also sums paid out for surgical, medical and hospital services to an injured employee, the one-thousand-dollar burial fee provided by law and payments under the provisions of sections 31-312 and 31-313.”


author: Daly, J.

text:
    Town of Voluntown v. Julius Rytman et al.
    (7748)
    Dupont, C. J., Daly and Norcott, Js.
    Argued November 9, 1989
    decision released April 17, 1990

      Donald R. Beebe, for the appellant (named defendant).

      Richard J. Duda, with whom, on the brief, was W. Bradford Goodwin, for the appellee (plaintiff).

      Ben M. Krowicki, for the appellee (defendant Connecticut National Bank).
   Daly, J.

The plaintiff town of Voluntown instituted this action pursuant to General Statutes § 12-181 against the named defendant, Julius Rytman, for the foreclosure of municipal tax liens owed on a poultry farm for the tax lists 1984 through 1986. The defendant appeals from the trial court’s judgment ordering a foreclosure by sale of the entire property following the denial of the defendant’s motion to order a sale of a portion of the property. On appeal, the defendant claims that the trial court erred (1) in denying his motion to order a sale of a portion of the property, (2) in refusing to hear evidence concerning the apportionment of the property, (3) in denying his two motions to set aside the default for failure to disclose a defense, (4) in not considering evidence relating to the value of the premises as an egg production facility, and (5) in denying his motion for a stay of the proceedings. We find no error.

The relevant procedural history is as follows. In February, 1988, the plaintiff began a strict foreclosure action against Rytman, the owner of the premises, and a number of encumbrancers. The premises, known as the Jalkanen egg farm, consists of a 64.67 acre tract that is traversed by a highway. On one side of the highway is the defendant’s residence located on 1.74 acres. On the other side of the highway is the egg farm containing several buildings (egg production facility), all of which are located on 62.93 acres.

In May, 1988, the defendant filed a motion to stay the present foreclosure action until a pending foreclosure action that had been filed by the Connecticut National Bank (CNB), the next succeeding encumbrancer, was resolved. The defendant claimed that if he was successful in that proceeding, he could pay the municipal tax liens owed to the plaintiff. On June 20, 1988, the court denied the motion to stay and granted the plaintiff’s motion for default for failure to plead and disclose a defense.

On June 20,1988, the plaintiff offered the expert testimony of its tax assessor who testified that the present market value of the property was $452,800, even though the assessed value was $1,680,000. The court was not satisfied with this evidence and continued the matter for further evidence of value. On June 23 and June 30,1988, the defendant filed motions to open the default for failure to disclose a defense. In the first motion, the defendant asserted two defenses: (1) He disputed the amount of the tax owed to the town; and (2) he claimed that the town did not come into this equity proceeding with clean hands because of the difference between the assessed value and the market value of the premises. The second motion asserted that the plaintiff had committed deceptive trade practices in violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a. The court denied these motions on November 7.

On December 16,1988, the defendant made an oral motion for foreclosure by sale. A hearing was held and both sides presented expert testimony on the value of the premises. The court found that the debt owed the plaintiff was $113,541.90 and continued the matter to December 21 so that the defendant could present an additional expert witness on value. On that date, the defendant filed a motion for foreclosure by sale of a portion of the premises. The defendant sought to have sold the 1.74 acre lot and residence, and a building lot across the street. The matter was continued to January 9, 1989, when the court heard argument on the defendant’s motion for foreclosure by sale of a portion of the premises and motion to present additional evidence regarding the feasibility of apportioning the property that was filed December 23. The court denied the two motions and instead ordered foreclosure by sale of the whole tract. In addition, the court found that the value of the property was $800,000, appointed a committee and three appraisers; see General Statutes § 49-25; and ordered that the sale be made on June 10, 1989, at 12 noon. The defendant brought this appeal.

I

The defendant first claims that the trial court erred in denying his motion for a foreclosure by sale of a portion of the property. Specifically, the defendant asserts that the trial court erred in concluding that it did not have authority to grant this type of foreclosure. We do not agree.

General Statutes § 12-181 permits the trial court to order the sale of real estate to satisfy the foreclosure of municipal tax liens. See also General Statutes § 49-24. The procedure for the foreclosure of municipal tax liens, like all other liens is governed by General Statutes § 49-25. Cf. General Statutes §§ 12-182 through 12-194 (procedure for summary foreclosure of municipal tax liens). Specifically, § 49-25 provides in pertinent part: “When the court in any such proceeding is of the opinion that a foreclosure by sale should be decreed, it shall . . . direct whether the property shall be sold as a whole or in parcels . . . .” “ ‘The foreclosure of a mortgage by sale is not a matter of right, but rests in the discretion of the court.’ ” Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 184, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985). Similarly, the trial court, in its discretion, has the authority to allow a foreclosure of municipal tax liens by the sale in parcels of land rather than the entire tract. General Statutes § 49-25; see also New England Mortgage Realty Co. v. Rossini, 121 Conn. 214, 219, 183 A.2d 744 (1936). Although a trial court has the discretion to order a sale of a portion of premises, the court did not abuse its discretion in this case when it denied the defendant’s motion.

In his motion, the defendant relied on New England Mortgage Realty Co. v. Rossini, supra, and General Statutes § 49-25. In the present case, the trial court determined that it did not have authority to grant the defendant’s motion for foreclosure by sale of a portion of the premises because of the Supreme Court’s holding in New Haven Bank v. Jackson, 119 Conn. 451, 177 A.2d 387 (1935). In New Haven Bank v. Jackson, supra, a strict foreclosure proceeding, the defendants requested that the court apportion “so much of the property . . . as would, upon foreclosure and appropriation, satisfy it, leaving the remainder subject only to their mortgage.” Id., 453-54. In that case, the court concluded that apportionment was not proper and rendered judgment for the plaintiff. The court reasoned that if the defendant were allowed relief by apportionment, that relief “would be demanded in most foreclosure actions and they would resolve themselves quite largely into actions in the nature of partition suits, not within the scope of that remedy as established by the statutes. Spencer v. Waterman, [36 Conn. 342, 344 (1870)].” Id., 454-55.

The defendant relied on the Supreme Court’s statement in New England Mortgage Realty Co. v. Rossini, supra, that “[t]he rights of the mortgagee are limited by the substantial necessities of such a remedy and in a foreclosure by sale he is entitled to a sale of the whole mortgaged property only if that is necessary in order to satisfy the mortgage debt.” This reliance is misplaced. New England Mortgage Realty Co., involved a strict foreclosure proceeding in which, unlike the present case, the mortgagor had conveyed parcels of the encumbered property subsequent to the date of the mortgage. In addition, New England Mortgage Realty Co. involved the application of the rule “that where all the property covered by a mortgage has been sold in parcels to different purchasers at different times, upon foreclosure of the mortgage the parcels are liable in inverse order of alienation.” Id., 216. There was no such previous sale of parcels in the present case, nor was there any evidence presented to the court that showed that in a deed description there were several parcels of land rather than one parcel.

The trial court in the present case also determined that General Statutes § 49-25 did not require a sale of parcels because the description of the property filed with the court was not sufficient to warrant a sale by parcels. The court reasoned that because it was given a running description of the property in rods and not feet, and was not presented with any type of record, namely an accepted survey subdivision approved by the planning commission that would enable it to make a division, it would not order a sale in parcels. The court had discretion under § 49-25 to order a sale in parcels or to refuse to order a sale in parcels. Although there was some testimony as to the divisibility of this parcel; see footnote 2, supra; the court did not abuse its discretion when it concluded that the land should not be sold in parcels.

In the case of Fidelity Trust Co. v. Irick, 206 Conn. 484, 490, 538 A.2d 1027 (1988), our Supreme Court stated that “[i]n 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.” In the present case, where there were several encumbrancers who had encumbrances on the entire premises, it would have been unfair to permit a sale of a portion of the encumbered premises, free of the succeeding encumbrances, because it would involuntarily reduce the security interest of those encumbrancers and force them to settle for less than what they had bargained for. Furthermore, if the defendant were allowed a sale such as this, these encumbrancers might never collect their due. The trial court did not abuse its discretion when it denied the defendant’s motion for foreclosure by sale of a portion of the premises.

II

The defendant next claims that the trial court erred in not permitting evidence on the apportionment of the property. The record indicates that the trial court would not allow this evidence because the evidence was not relevant to show that the land could be subdivided; it pertained only to the value of the premises that the defendant wanted to be sold and to the alleged fact that the defendant had a ready, willing and able buyer to purchase one portion of the property. While there is no precise test for relevancy, evidence is admissible if it tends to establish a fact in issue; Dunham v. Dunham, 204 Conn. 303, 324, 528 A.2d 1123 (1987); and if its probative value is not far outweighed by its prejudicial effect. State v. Fritz, 204 Conn. 156, 169, 527 A.2d 1157 (1987). The trial court has broad discretion in determining the admissibility of evidence and its rulings will not be disturbed absent a showing of a clear abuse of discretion. State v. Boucino, 199 Conn. 207, 225, 506 A.2d 125 (1986). Because the court properly determined that one of the facts in issue pursuant to a motion to sell in parcels was whether the property could be subdivided into parcels and because the evidence was not relevant to establish that the premises could be subdivided into parcels, the court did not abuse its discretion in refusing this evidence.

Ill

The defendant next claims that the court erred in denying his two motions to set aside the default for failure to disclose a defense. Specifically, the defendant claims that the court should have permitted his two defenses to the foreclosure and his claim under CUTPA. General Statutes § 42-110a et seq. Although they were not timely, the defendant claims they should have been allowed because he was not aware that the town was taxing his property at a higher assessed value than it believed it was worth in today’s market. We do not agree.

At the outset, we note that, because judgment had not been rendered on the default for failure to disclose a defense at the time the defendant filed his two motions to set aside that default, the governing rule of practice is Practice Book § 376, and not § 377, as alleged by the defendant.

“Pursuant to Practice Book § 376 ‘[a] motion to set aside a default when no judgment has been rendered may be granted by the court for good cause shown upon such terms as it may impose.’ The determination of whether to set aside the default is within the discretion of the trial court. See White’s Appeal, 75 Conn. 314, 318, 53 A. 582 (1902).” Skyler Limited Partnership v. S.P. Douthett & Co., 18 Conn. App. 245, 248-49, 557 A.2d 927, cert. denied, 212 Conn. 802, 560 A.2d 984 (1989). “ 'A trial court’s conclusions are not erroneous unless they violate law, logic, or reason or are inconsistent with the subordinate facts in the finding.’ Kaplan & Jellinghaus v. Newfield Yacht Sales, Inc., 179 Conn. 290, 292, 426 A.2d 278 (1979).” Costello v. Hartford Institute of Accounting Inc., 193 Conn. 160, 167, 475 A.2d 310 (1984). Because the defendant’s three claims would not have been good defenses, the trial court’s finding that the defendant had not shown good cause did not violate law, logic or reason, and was therefore, not an abuse of discretion.

In his motion to set aside the default, the defendant first challenged the amount of the assessment and claimed that the amount was wrongfully or excessively assessed. This claim was untimely and would not have been a good defense to the foreclosure. “The claim that the property had been wrongfully or excessively assessed could have been appealed in one of two ways: (1) to the board of tax review and from there, within two months, to the Superior Court pursuant to §§ 12-111 and 12-118; or (2) by direct action to the court within one year from the date when the property was last evaluated for purposes of taxation pursuant to § 12-119.” Norwich v. Lebanon, 193 Conn. 342, 346-48, 477 A.2d 115 (1984); see also Hartford v. Faith Center, Inc., 196 Conn. 487, 491-92, 493 A.2d 883 (1985).

The defendant then alleged a second defense to the foreclosure, namely, that the plaintiff did not come into the proceeding with clean hands when it requested that the value of the property be the lower present market value for the purpose of strict foreclosure yet it taxed the property at the higher assessed value. This too is not a good defense.

“In Connecticut, the remedy for variations in the effect of market conditions on different parcels is set forth in General Statutes § 12-62. The remedy of revaluation was established by the legislature . . . that the remedy need only be available once each decade. . . . By way of contrast, § 12-64‘is concerned with the manner of taxation, not the frequency of valuation, and it does not purport to require assessors to be updated on their valuations at all times. . . . [A]s a practical matter, assessors cannot be expected to revalue each year, even though changes which affect property values may occur within a given year.’ ” (Citation omitted.) Uniroyal, Inc. v. Board of Tax Review, 182 Conn. 619, 629-30, 438 A.2d 782 (1981); see also Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 437-38, 525 A.2d 91 (1987), reiterating the court’s holding in Uniroyal, Inc. v. Board of Tax Review, supra.

In the present case, the defendant has alleged nothing more than the following: The town, through the testimony of its assessor, believed that there had been a change in the market conditions that resulted in the reduction of the current market value of the property. The present market value is the value that the court should consider when determining the present value of the property for the purposes of strict foreclosure, even though the town continues to tax the property at the higher assessed value. Whatever the town was alleged to believe, it was not required to perform an interim revaluation of this property for the purposes of taxation. Uniroyal, Inc. v. Board of Tax Review, supra; Ralston Purina Co. v. Board of Tax Review, supra. The defendant, therefore, did not have a good defense when he alleged that the town was acting in bad faith because of its belief that the property was worth less than the assessed value for the purpose of obtaining the property by strict foreclosure.

The defendant also alleged a violation of CUTPA. It is not necessary to determine whether CUTPA applies since, even if the plaintiff could be sued under CUTPA, the allegation that the plaintiff had engaged in deceptive trade practices would fail, and the defendant would be deprived of a good defense. The defendant argues that the deceptive trade practices the plaintiff had committed refer to the allegation that the town believed that the property had decreased in market value, and continued to tax at the higher assessed value, yet based the value for the purposes of strict foreclosure at the lower market value. For the reasons previously discussed, this defense must fail, and, accordingly, the defendant’s third claim of error must also fail.

IV

The defendant’s fourth claim is that the trial court erred in valuing the property at $800,000. Specifically, the defendant claims that the trial court failed to consider the testimony of his expert, Boris Bravo-Ureto, an agricultural economist, that the value of the egg production facility was worth $1,405,250, and the defendant’s own testimony that the overall value of the farm was $2,254,000. This claim has no merit.

The trial court heard extensive evidence from both the plaintiff’s and the defendant’s appraisers as well as the testimony of the defendant regarding both the value of the egg production facility as well as the overall value of the property. In addition to the testimony of the defendant and Bravo-Ureto, the court also heard the defendant’s expert testimony of James Platt, a real estate appraiser, who valued the egg production facility and the land underneath these buildings at $680,000 and on cross-examination stated that $118,000 of the amount was the value of the land underneath the buildings and $550,000 was the value of the egg production facility. Platt also gave an overall value of the property of $822,000.

The plaintiff also presented two expert witnesses. Raymond Millar, the town assessor, valued the egg production facility at $194,800 and gave an overall value of $452,000 and Herbert Riess, gave a value of $452,000 to the egg production facility and $614,000 overall.

The trial court was presented with conflicting evidence as to the value of the property and specifically as to the value of the egg production facility and it is apparent that credibility was a crucial factor. Faced with a conflict between the testimony of the defendant and Bravo-Ureto, and the testimony of the other experts, “the court, as the trier of fact, was privileged to adopt the testimony it believed to be more credible.” Di Diego v. Zarro, 19 Conn. App. 291, 294, 562 A.2d 555 (1989), citing Hartford Federal Savings & Loan Assn. v. Tucker, supra, 183. “ ‘The acceptance or rejection of the opinion of the expert witness is a matter peculiarly within the province of the trier of fact and its determination will be accorded great deference by this court.’ ” Di Diego v. Zarro, supra, 295.

As to the trial court’s determination of the overall value of the property, we also conclude that the court did not commit error. “ ‘The determination of . . . value by a court is the expression of the court’s opinion aided ordinarily by the opinions of expert witnesses, and reached by weighing those opinions in light of all the circumstances in evidence bearing upon value and its own general knowledge of the elements going to establish it. Appeal of Cohen, 117 Conn. 75, 85, 166 Atl. 747 [1933].’ Lomas Nettleton Co. v. Waterbury, 122 Conn. 228, 233, 188 A. 433 (1936).” Hartford Federal Savings & Loan Assn. v. Tucker, supra.

The trial court’s conclusion, that the value of the egg production facility was $550,000 and the overall value was $800,000, was necessarily based upon the opinions of the appraisers and finds support in the evidence. “It is axiomatic that the determination of the credibility of expert witnesses and the weight to be accorded their testimony is within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible.” Id.; see also B. Holden & J. Daly, Connecticut Evidence § 118c (1988). The trial court did not err in valuing the property at $800,000.

V

The defendant’s fifth claim is that the court erred in denying the defendant’s motion to stay the proceeding pending the outcome of the foreclosure action that was instituted by CNB before the liens were placed on the defendant’s property.

“In the absence of a statutory mandate, the granting of an application or a motion for a stay of an action or proceeding is addressed to the discretion of the trial court, and its action in granting or denying application will not be disturbed by an appellate court unless that discretion has been abused.” 1 Am. Jur. 2d, Actions § 97. We cannot say that the trial court abused its discretion when the parties in the two foreclosure actions are not identical and particularly when priority is given to tax liens under General Statutes § 12-172.

There is no error.

In this opinion the other judges concurred.

       This action also named other encumbrancers. The named defendant, however, is the only defendant who has appealed and in this opinion the word “defendant” refers to him only.

       The land description in the deed provided to the court states that the entire tract contains “52 acres, more or less.” The evidence, however, was that there were 1.74 acres of land and a residence on one side of the highway and 62.93 acres of land and several buildings that comprised the egg production facility on the other side of the highway.

       The court valued the residence at $20,000, the 1.74 acres at $80,000, the 62.93 acres at $170,000 and the egg production facility at $550,000.

       We note that there was considerable confusion in the record as to whether judgment of default had been rendered at the time the defendant’s motions were filed. This confusion included the defendant’s representation to the trial court, Norm, J., who denied his motions, that judgment had been rendered following the entry of a default by the court, Walsh, J.


text:
    Frank Perrotti, Jr. v. George Chiodo et al.
    (7143)
    Dupont, C. J., Foti and Laveky, Js.
    Argued October 31, 1989
    decision released April 24, 1990

      Robert C. Leitze, with whom, on the brief, was Frederick M. Vollonó, for the appellant (plaintiff).

      Thomas E. Stevens, for the appellees (defendants).
   Lavery, J.

The plaintiff appeals in a summary process action from the judgment of the trial court denying him possession of the premises. The plaintiff claims that the trial court erred (1) in concluding that the defendants properly renewed their lease, and (2) in making several factual findings without any evidential basis in the record. We find no error.

The trial court found the following facts. In May, 1982, the defendants executed a lease and took possession of commercial premises on Whalley Avenue in New Haven, to operate an ice cream parlor. The lease provided a termination date of December 31,1986, and allowed the defendants to renew the lease for two successive five year periods. In order to renew the lease, the defendants were required to send the lessor written notice, by registered mail, of their intention to do so six months prior to the termination date.

The property was sold twice during the period of the first lease; the second purchaser was William LaRovera, who took title in early 1986. Each of these purchasers was assigned the rights under the existing leases. The trial court found that LaRovera was a relatively informal landlord, and that he had an office in the same building as the defendants’ leased premises, a mere fifty feet from the defendants’ shop. It was his custom to collect the rent in person, so that the defendants never were made aware of his business mailing address.

In late May, 1986, the defendant George Chiodo had a conversation with LaRovera in which LaRovera was advised of the defendants’ desire to renew the lease. On June 2, 1986, approximately seven months before the expiration of their lease, the defendants executed their monthly rent check and wrote on the face of the check “per our conversation we will exercise our next five year option per our contract.” The defendants hand delivered the check to LaRovera, who endorsed and cashed it.

The defendants continued their tenancy relation with LaRovera through the rest of 1986 and into the first three months of 1987. In April, 1987, LaRovera sold the property to the plaintiff and also executed an assignment of his interest and obligations in the property, including whatever leases were in force. Upon obtaining title, the plaintiff immediately sought to raise the defendants’ rent, arguing that they had failed to renew the lease with LaRovera and were therefore month-to-month tenants subject to a rental increase. This litigation ensued.

Whether an option in a lease to renew has been exercised is a question of fact for the trial court, which looks to the intent of the parties as expressed in their words and deeds. Zuckerman Group v. Raveis, 4 Conn. App. 568, 495 A.2d 300, cert. dismissed, 197 Conn. 811, 499 A.2d 62 (1985). This court will not disturb the trial court’s factual findings provided the evidence supports those findings.

The trial court determined that the defendants, by orally telling LaRovera of their intent to renew and by handing him written notice of that intent, had given LaRovera effective notice of their intention to renew. Essential to this conclusion was the court’s finding that LaRovera had waived the clause in the lease that required that notice of intent to renew be sent by registered mail, return receipt requested. We agree.

Although a notice requirement in an option to renew a real estate lease is a condition precedent to exercising the option, it is for the benefit of lessors and can be waived orally or by conduct. Adam v. Consolini, 135 Conn. 321, 324, 64 A.2d 44 (1949); see also Zaniewski v. Mancinone, 37 Conn. Sup. 698, 435 A.2d 50 (1981). The trial court found that LaRovera had conducted his business affairs in an informal manner, from an office in the same building as the defendants’ shop, and that the parties therefore had dealt with each other in person, without resort to the mails. The defendants testified that they did not even know LaRovera’s business mailing address. Given that the defendants, in response to the location and preference of their landlord, had established a course of performance of transacting business in person, the trial court reasonably found such conduct by LaRovera to have waived the registered mail provision in the defendants’ renewal option.

The trial court found that the defendants fulfilled the remaining conditions precedent to the renewal of their lease when they timely provided LaRovera written notice of their intent to renew the lease. The trial court’s finding is supported by the evidence and we will not disturb it.

There is no error.

In this opinion the other judges concurred.

       In his brief, the plaintiff states that “there is absolutely no testimony by any witness or any other evidence in the record indicating that this conversation took place.” In fact, the defendant George Chiodo testified to having a “full conversation” with LaRovera regarding the renewal of the lease only days before handing LaRovera the check.

       The plaintiff argues that the defendants, whose place of business was in the same building as LaRovera’s, have no tenable argument for not knowing his address. The plaintiff did not present any evidence, however, that LaRovera received his business mail at his office as opposed to a post office box or some different business address.


author: Kulawiz, J.

text:
    State of Connecticut v. Bernard Johnson
    (7539)
    Borden, Spallone and Kulawiz, Js.
    Argued November 14, 1989—
    decision released April 24, 1990

      Stephen V. Moran, assistant public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Stephen J. Sedensky, assistant state’s attorney, for the appellee (state).
   Kulawiz, J.

The defendant appeals from the judgment of conviction, after a jury trial, of robbery in the third degree in violation of General Statutes § 53a-136. The defendant claims that the trial court erred (1) in limiting his cross-examination of the victim, and (2) in allowing the testimony of a rebuttal witness. We find no error.

I

The defendant claims that the court violated his rights under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution to confront the witnesses against him by unduly limiting the cross-examination of the victim, Charles Douglas. Douglas reported to a police officer that the defendant, armed with a firearm, robbed him of $6. The defendant sought to show that he was unarmed during the incident and that he assaulted Douglas with his fist for selling imitation drugs. To this end, the defendant asked several questions during cross-examination of Douglas designed to impeach his credibility by showing that Douglas was soliciting drug sales at the time of the incident, and that he had committed various illegal or dishonest acts in the past. The trial court sustained the state’s objections to some of these questions, and the defendant assigns constitutional error.

The purpose of the constitutional right to confrontation is to ensure that criminal defendants are not denied the opportunity to cross-examine adverse witnesses. Pointer v. Texas, 380 U.S. 400, 405, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965). Connecticut courts have long recognized that cross-examination is a right, and its denial or undue restriction is error. State v. Luzzi, 147 Conn. 40, 46-47, 156 A.2d 505 (1959). The confrontation clause does not, however, suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985) (per curiam); State v. D'Ambrosio, 212 Conn. 50, 57, 561 A.2d 422 (1989). Interrogation must not be repetitive or unduly harassing. Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). The evidence sought through cross-examination must be relevant. See State v. Gaynor, 182 Conn. 501, 509, 438 A.2d 479 (1980), and cases cited.

Under the confrontation clause, there is a minimum of cross-examination that must be accorded the defendant into matters affecting the reliability and credibility of the state’s witnesses. Davis v. Alaska, supra; State v. Ortiz, 198 Conn. 220, 224, 502 A.2d 400 (1985). Hence, the trial court commits error if it precludes all inquiry upon a subject tending to show the bias of a witness. State v. James, 211 Conn. 555, 573, 560 A.2d 426 (1989); State v. Ortiz, supra, 226; State v. Ouellette, 190 Conn. 84, 103, 459 A.2d 1005 (1983). In order to determine whether cross-examination has been unduly restricted, this court must consider the two-step analysis set forth in State v. Castro, 196 Conn. 421, 493 A.2d 223 (1985).

The general rule that restrictions on the scope of cross-examination are within the court’s sound discretion comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment. State v. Gaynor, supra, 508. The first issue, therefore, is whether the defendant was accorded the minimum of cross-examination required by the constitution.

In the present case, the trial court did not preclude the defendant from cross-examining Douglas on matters tending to show bias, motive, or lack of credibility. The court permitted questions concerning his prior felony convictions, and whether he dropped out of school after robbing a woman who was carrying numbers money for organized crime. The defendant was permitted to enter into evidence a photograph of Douglas as he entered prison to serve a sentence for a 1983 robbery, and he was permitted cross-examination on the subject of whether Douglas had ever lied by using a false name either in court or in speaking with police officers. The defendant also cross-examined Douglas regarding whether he owed the defendant $75, and whether he and the defendant had agreed that he would either repay the defendant with $75 in cash or with $125 worth of “product,” or cocaine. The defendant also asked Douglas whether he knew the defendant was upset with him for selling “burn bags,” or phony drugs, and Douglas responded that he did not remember an argument and that he was not engaged in business with the defendant.

Although the defendant was allowed to cross-examine the complainant on all of these matters, he claims that the court erred in failing to allow the following question: “If you changed your story here you could be charged with making a false report by this man, right?” When Douglas first took the stand he attempted to invoke the fifth amendment privilege against self-incrimination, and when the court informed him that the privilege did not apply to him, Douglas stated that he did not “want to go through with it.” The jury was excused, and Douglas was given private legal advice outside the courtroom. Upon his return, the court asked him if he understood that he could be charged with contempt if he refused to testify, and that he could be charged with perjury if he testified falsely. Douglas’ attorney informed the court that he was also advised that he could be charged with making a false report if he refused to testify. Douglas agreed to testify and the jury was recalled.

The claim of bias that the defendant sought to develop was admissible to afford the jury a basis for an inference that there was potentially undue pressure placed on Douglas to testify. The question went to assessing the motive or bias of the complainant. It was error, therefore, to exclude the question.

Standards for determining whether constitutional error is harmless are set forth by this court in State v. Coleman, 14 Conn. App. 657, 679, 544 A.2d 194, cert. denied, 208 Conn. 815, 546 A.2d 283 (1988). It has been established that the harmless error standard applicable to a federal constitutional error is itself a matter of federal, not state, constitutional law. Chapman v. California, 386 U.S. 18, 21, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); State v. Coleman, supra. The proper harmless error standard applicable to federal constitutional errors is whether “ ‘the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.’ ” State v. Coleman, supra, quoting Rose v. Clark, 478 U.S. 570, 576, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986).

Applying this standard, we conclude upon review of the entire record of this case, that the error was harmless beyond a reasonable doubt. Because of the more than ample opportunity to impeach the credibility of Douglas afforded the defendant in the cross-examination allowed by the court, the disallowing of that one question was inconsequential.

To comport with the constitutional standard embodied in the confrontation clause, the defendant in exercising his right of cross-examination must be allowed to expose to the jury the facts from which the jurors, as the sole triers of facts or credibility, may appropriately draw inferences relating to the reliability of the witness. State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982). By allowing inquiry in the above manner, constitutional standards were satisfied as there was sufficient opportunity afforded the defendant to expose such facts in this case.

The second prong of the test is whether the trial court abused its discretion in restricting the scope of cross-examination. State v. Castro, supra, 425. The general rule is that restrictions on the scope of cross-examination are within the sound discretion of the trial judge. Id., 426. Every reasonable presumption should be given in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. Reversal is required only where an injustice appears to have occurred. State v. Briggs, 179 Conn. 328, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100A S. Ct. 3000, 64 L. Ed. 2d 862 (1980). To establish an abuse of discretion, it must be shown that restrictions imposed on cross-examination were clearly prejudicial. State v. Gaynor, supra. No such prejudice was shown to have occurred in this case.

II

The defendant’s second claim of error is that the court erred in allowing a police officer to testify as a rebuttal witness when the officer did not testify during the state’s case-in-chief, although he had been subpoenaed for the case-in-chief and had not appeared. On rebuttal by the state, the officer testified as to Douglas’ demeanor when he reported the alleged crime to the officer, namely, that he seemed shaken-up and out of breath, as though he had been running. The officer further testified, contrary to the testimony of a witness for the defendant, that he did not observe a “bum bag.” The defendant argues that the officer’s testimony was used to bolster a portion of the state’s evidence in chief that the defendant had not challenged: that Douglas ran to the officer after the incident and told the officer that he had been robbed.

Rebuttal evidence is usually confined to testimony tending to refute the evidence presented by the defense. State v. Simino, 200 Conn. 113, 123, 509 A.2d 1039 (1986). Although, ordinarily, rebuttal evidence should not merely bolster the state’s case; State v. Lisella, 187 Conn. 335, 337, 445 A.2d 922 (1982); the admission of rebuttal evidence is within the sound discretion of the trial court. State v. Watkins, 14 Conn. App. 67, 76, 540 A.2d 76, cert. denied, 208 Conn. 804, 545 A.2d 1102 (1988). The trial court appropriately limited the testimony by the officer on rebuttal. Some of the officer’s testimony contradicted evidence presented by the defendant.

This court will affirm a trial court’s admission of rebuttal evidence that would have been normally presented as part of the case-in-chief unless the party claiming error sustains his burden of establishing harmful error. State v. Lisella, supra, 337-38; see also State v. Simino, supra, 124. The defense did not meet its burden of establishing harmful error in this case.

There is no error.

In this opinion the other judges concurred.

       We do not separately analyze the defendant’s claims under the federal and state constitutions. See State v. D’Ambrosio, 212 Conn. 50, 57 n.5, 561 A.2d 422 (1989).

       The court sustained the state’s objection to the following questions which were put to Douglas during cross-examination: (1) whether Douglas had ever used crack cocaine; (2) whether the area in which the robbery occurred was known as a drug comer; (3) whether Douglas had ever broken a written promise to appear in court; (4) whether Douglas had lied to police in connection with a prior narcotics violation; and (5) whether Douglas was aware that he could be charged with making a false report to the police if he were to renounce his allegations against the defendant. The defendant took exception to each of these rulings.


author: Per Curiam.

text:
    William J. Furka v. Commissioner of Correction
    (7985)
    Bokden, O’Connell and Foti, Js.
    Argued January 17
    decision released April 24, 1990

      William J. Furka, pro se, the appellant (petitioner).

      L. D. McCallum, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, attorney general, for the appellee (respondent).
   Per Curiam.

The petitioner appeals from the judgment of the trial court dismissing his petition for a writ of habeas corpus. In his petition, the petitioner sought to prohibit the respondent from allowing the state of New York to take temporary custody of him, pursuant to Article IV of the Interstate Agreement on Detainers, General Statutes § 54-186, for the purpose of requiring him to answer pending criminal charges in that state. The petitioner claims that his proposed transfer is illegal because (1) the respondent did not make a timely offer of temporary custody of the petitioner to the state of New York, and (2) the request for temporary custody by the state of New York is invalid because it was not made by the governor of New York or his designee. We find no error.

The arguments raised by the petitioner were properly resolved in the well reasoned memorandum of decision filed by the trial court. Furka v. Commissioner of Correction, 41 Conn. Sup. 320, 573 A.2d 772 (1990). We adopt the trial court’s decision as a statement of the facts and applicable law. It serves no useful purpose to repeat them.

There is no error.