author: DALY, J.

text:
    STATE OF CONNECTICUT v. ELTON ARLINE
    (AC 17665)
    Foti, Hermessy and Daly, Js.
    Argued February 23
    officially released August 15, 2000

      Neal Cone, assistant public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Gail P. Hardy, assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Elton Arline, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a). On appeal, the defendant claims that the trial court improperly denied his request to poll the jury upon return of the verdict. We reverse the judgment of the trial court.

The following facts are relevant to this appeal. The defendant was arrested on November 29, 1996, and charged with possession of narcotics with intent to sell. The jury returned a verdict of guilty. After the foreman announced the jury’s verdict, the defense counsel requested that the jury be polled. The court denied this request, instead instructing the courtroom clerk to read to the jury the verdict as recorded. The jury responded, “Yes,” to the question, “So say you one, so say you all?” which the clerk asked after reading the verdict. Defense counsel then renewed his request that the jurors be polled individually. The court again denied the request, noting that each of the jurors gave assent to the clerk’s question. Later that day, before the jury had been discharged, the defense counsel again renewed the request that the jurors be polled individually. The trial court again denied this request. This appeal followed.

On appeal, the defendant claims that the trial court improperly denied his repeated requests to have the jury polled. We need look no further than State v. Pare, 253 Conn. 611, 755 A.2d 180 (2000), which was decided after briefs were filed and oral argument was presented in this case. In short, Pare holds that “a violation of a party’s timely polling request requires automatic reversal of the judgment.” Id., 639. The defendant requested a poll of the jury in this case, and the trial court declined to do so. We follow State v. Pare, supra, 639, and conclude that the trial court’s failure to poll requires automatic reversal.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       There was also a part B information filed, charging the defendant with previously having been convicted of the crime of possession of narcotics with intent to sell. Following the defendant’s conviction on the underlying charge, the state entered a nolle on the part B information.

       The jury had not been discharged due to the possible need for it to hear evidence on the part B charge.

       The court stated: “As I read the Practice Book, counsel, I’m sure you read it the same way, the key word is ‘may.’ That’s discretionary. It was clear that the jury assented when asked by the clerk, ‘So say you one, so say you all?’ ”


source: Caselaw Access Project

author: ZARELLA, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. GREGORY MATHIS
    (AC 19148)
    SchaUer, Spear and Zarella, Js.

      Argued May 2
    officially released August 15, 2000

      Del Atwell, special public defender, for the appellant (defendant).

      Robin S. Schwarlz, special deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Rachel M. Baird, deputy assistant state’s attorney, for the appellee (state).
   Opinion

ZARELLA, J.

The defendant, Gregory Mathis, appeals from the judgment of conviction, rendered after a jury trial, of one count of possession of narcotics in violation of General Statutes § 2 la-279 (a) and one count of possession of narcotics within 1500 feet of an elementary school in violation of General Statutes § 21a-279 (d). The defendant was sentenced to a total effective term of seven years incarceration, suspended after five years, with three years of probation. On appeal, the defendant claims that (1) the evidence was insufficient to sustain the verdict, (2) the trial court improperly granted a motion to quash the defendant’s subpoena to have a deputy assistant state’s attorney testify on his behalf, (3) the court abused its discretion in imposing an unduly harsh or excessive sentence and (4) the court improperly allowed the state to comment on evidence during closing argument. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On February 18, 1996, Sergeant Steven Hauser of the Hartford police department was approached by a man who reported that he had been the victim of a robbery and assault at an apartment in Hartford. The police immediately investigated the site of the alleged incident at 34 Wethersfield Avenue. Upon arriving, the police officers observed ten people in the apartment, four of whom matched the victim’s description of the assailant. The officers also observed seven blue, heat sealed packets containing a white powdery substance.

The officers then took the four individuals downstairs to a police car on the street, where the victim identified the defendant as one of the men who had assaulted him. The defendant and several other individuals then were placed under arrest. The defendant was searched incident to his arrest. The arresting officer, Sandy Kim-brough, reported that the defendant was in possession of “one blue, heat sealed wrapper containing a white powder substance, suspected [to be] heroin.” Tests subsequently confirmed that the substance was heroin.

I

Prior to addressing the larger issue of the sufficiency of evidence, we first must address whether the court abused its discretion in allowing state’s exhibit nine into evidence. The defendant claims that the state failed to establish a proper and sufficient chain of custody from Kimbrough to the toxicology lab and to trial. We disagree.

Kimbrough testified that after the victim identified the defendant as one of the men who had robbed him, Kimbrough arrested the defendant and searched him incident to the arrest. Kimbrough testified that as a result of the search, he “found a blue packet of what appeared to be narcotics” in the defendant’s pocket and placed it in a “clear plastic evidence bag with a seal.” Kimbrough labeled the bag with the investigating officers’ names, Officer Achilles Rethis and Officer Charles Cochran, and then turned it over to Rethis.

The defendant claims that names of the investigating officers on the evidence bag containing the seized drugs rather than that of Kimbrough cast sufficient doubt on the chain of custody such that the court should not have admitted the bag into evidence. We find this claim to be wholly without merit.

At trial, Kimbrough identified state’s exhibit nine as the blue packet that he believed to contain narcotics. His testimony indicated that he recognized this packet to be the evidence that he seized from the defendant incident to his arrest on February 18, 1996. The officer also indicated that he recalled this same packet because he had seized it, sealed it, labeled the bag and submitted it to the police evidence room. Furthermore, he recognized his handwriting on the bag, which he had labeled with the names of Rethis and Cochran, the officers directing the investigation. Kimbrough also identified state’s exhibit nine as the narcotics he seized. Joel Mil-zoff, an expert in toxicology at the state toxicology laboratory, also identified state’s exhibit nine and testified that he had received the sealed packet for testing at the laboratory. He farther testified that he was able to identify the packet by the laboratory number, which was on the inside and outside of the packet. Milzoff testified that he prepared a report in connection with his tests of the contents of state’s exhibit nine and concluded that the packet contained twenty-five milligrams of heroin.

When reviewing a court’s ruling on the admissibility of evidence, great deference is granted to the court’s ruling, absent a clear abuse of discretion. State v. Barnes, 47 Conn. App. 590, 595, 706 A.2d 1000 (1998). “[0]ur review of a trial court’s evidentiary ruling is limited. Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. ... In considering whether the trial court abused its discretion, the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.” (Internal quotation marks omitted.) State v. Correa, 57 Conn. App. 98, 107, 748 A.2d 307, cert. denied, 253 Conn. 908, 753 A.2d 941 (2000). On the basis of our review of the record, we conclude that the testimony and evidence presented at trial was sufficient to establish an adequate chain of custody. Since no claim was made that the evidence had been tampered with in any way, the evidence was properly admitted.

Having determined that the evidence was properly admitted, we now turn to the defendant’s claim that the evidence was not sufficient to sustain the verdict. “The test for determining whether the evidence is sufficient to sustain a verdict is thus whether the [trier of fact] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.” (Internal quotation marks omitted.) Id., 110.

Contrary to the defendant’s claims, the state asserts that there is a reasonable view of the evidence that supports the jury’s guilty verdict. The jury heard testimony from Kimbrough that he arrested the defendant and found him in possession of the blue packet that later was introduced as state’s exhibit nine. The jury also heard testimony from Kimbrough that the evidence bag was sealed and submitted to the evidence room. Milzoff also testified that state’s exhibit nine had been submitted to his laboratory and that the contents tested positive for heroin. The state also offered testimony from a land surveyor that a private school, St. Cyril and St. Methodius School, is within 1500 feet of the site where the drugs were seized from the defendant.

The role of a reviewing court is not to determine if there is evidence that would support a defendant’s hypothesis of innocence. State v. Sivri, 231 Conn. 115, 134, 646 A.2d 169 (1994). Instead, the court asks whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty. Id. On the basis of our review of the evidence, we conclude that the jury reasonably could have found the defendant guilty of possession of narcotics and possession of narcotics within 1500 feet of a school.

II

The defendant’s second claim is that the court improperly granted the state’s motion to quash his subpoena to have a deputy assistant state’s attorney testify on his behalf. The defendant proposed to elicit testimony as to what, if any, exculpatory information had been obtained that led the state’s attorney to enter a nolle of the charges that had been lodged against one of the other individuals who was arrested with the defendant in connection with the incident at issue.

On September 11, 1996, the defendant caused a subpoena to be served on Herman Woodard, the deputy assistant state’s attorney. On September 12, 1996, the state filed a motion to quash and a motion in limine, requesting that the court prohibit the defendant from introducing evidence regarding the disposition of the charges against the other individual in connection with the incident at issue. The court granted the state’s motions at a hearing on September 12, 1996.

The defendant claims that because he and the other individual were arrested in connection with the same incident, any information that exculpated that individual could exculpate him by association. The state responds by arguing that prosecutors are entitled to exercise discretion in disposing of cases. The state argues further that there would have to be a compelling need to require Woodard to testily because the other individual’s case was not relevant to exculpate the defendant. In addition, the state claims that it had no exculpatory information outside of the information that it already had provided to the defense. It also claims that any evidence about the other individual’s case would have served only to confuse and prejudice the juiy. Finally, the state argues that the defendant was charged with several counts of robbery and possession of narcotics, none of which contained an element relating to the guilt or innocence of any other individual.

Connecticut courts have applied the compelling need test where there is a risk that a prosecutor may be called as a witness. State v. Thompson, 20 Conn. App. 290, 296, 567 A.2d 837 (1989). “First, there is the risk that the prosecutor may not be a fully objective witness. Second, there exists the justifiable fear that, when a prosecutor takes the witness stand, the prestige or prominence of the prosecutor’s office will artificially enhance his credibility as a witness. . . . Third, the jury may understandably be confused by the prosecutor’s dual role. . . . The jury would be required to segregate the factual testimonial account of the prosecutor-witness from the exhortations of the prosecutor-advocate. . . . Naturally, the potential for jury confusion is perhaps at its height during final argument when the prosecutor must marshall all the evidence, including his own testimony, cast it in a favorable light, and then urge the jury to accept the government’s claims. . . . Finally, a broader concern for public confidence in the administration of justice suggests the maxim that justice must satisfy the appearance of justice. Public confidence in our criminal justice system may be eroded by even the appearance of impropriety.” (Citations omitted; internal quotation marks omitted.) Id.

“Permitting a defendant to call his prosecuting attorney as a witness, ‘therefore, inevitably confuses the distinctions between advocate and witness, argument and testimony, [and] is acceptable only if required by compelling and legitimate need.’ ” Id.

“Under this [compelling need] test, the party wishing to call a prosecutor to testify must show that the testimony of the prosecutor is ‘necessary and not merely relevant,’ and that all other available sources of comparably probative evidence have been exhausted.” Ullmann v. State, 230 Conn. 698, 717, 647 A.2d 324 (1994). Because the decision whether to allow an attorney to be called is within the discretion of the trial court, appellate courts will reverse trial court decisions only when there has been an abuse of discretion. Id. The issue is only whether the trial court acted reasonably. Id. “Any improper evidence that may have a tendency to excite the passions, awaken sympathy, or improperly influence the judgment of the jury cannot be considered.” State v. Loughlin, 149 Conn. 21, 26, 175 A.2d 367 (1961).

In this case, any evidence concerning the other individual’s case could have improperly influenced the jury. Furthermore, the defendant failed to establish, as required by the compelling need test, that the information sought from Woodard was information that was not available from any other source. See State v. Colton, 234 Conn. 683, 701, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996); Ullmann v. State, supra, 230 Conn. 717; State v. Thompson, supra, 20 Conn. App. 296. Because the defendant failed to show that all other available sources of comparably probative evidence were exhausted, the court did not abuse its discretion in finding that the compelling need test had not been met.

Finally, there was no evidence that exculpatory evidence was being withheld by the state. If evidence of the nolle of the charges against the other individual had come before the jury, the state would have been compelled to defend its decision to nolle those charges and explain why the defendant’s case was treated differently. Because the information sought from Woodard was not relevant and because there was no exculpatory information to be had, the court acted well within its discretion in granting the state’s motion to quash the defendant’s subpoena.

Ill

The defendant claims that the court abused its discretion in imposing an unduly harsh or excessive sentence.

“It is well established that when the sentence imposed is within the limits fixed by statute for the offenses charged, an appellate claim that the sentence is excessive is nothing more than an appeal for clemency and a request that this court exercise discretionary authority it does not possess. . . . [Our Supreme Court has] stated that we have no discretionary power to modify or overturn a sentence that was within the limits fixed by statute for the offense charged, except where a trial court appears to have abused its discretion.” (Citations omitted.) State v. Baldwin, 224 Conn. 347, 370-71, 618 A.2d 513 (1993). Our review of the record discloses that the court properly sentenced the defendant within the limits set by statute. The defendant’s claims are not reviewable here. A petition for sentence review is the appropriate means by which to evaluate this claim. Id.

IV

The defendant’s final claim is that the court improperly allowed the state to comment on evidence during closing argument. This claim is raised for the first time on appeal. “Our review of this claim, therefore, is limited to either plain error review; see Practice Book § [60-5]; or review pursuant to the constitutional bypass doctrine of Evans-Golding. See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). The defendant fails, however, to request review of this claim under either of these doctrines. As this court has previously noted, it is not appropriate to engage in a level of review that is not requested. . . .” (Citation omitted.) State v. Hermann, 38 Conn. App. 56, 64-65, 658 A.2d 148, cert. denied, 235 Conn. 903,665 A.2d 904 (1995). Accordingly, we decline to review this unpreserved claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       State’s exhibit nine was the blue, heat sealed packet containing a white substance that was seized from the defendant.

       The report was identified as state’s exhibit ten and subsequently was admitted into evidence as a full exhibit

       The court did not articulate on the record its reasons for granting the motion to quash. Our Supreme Court has directed that where the factual or legal basis of a trial court’s decision is unclear, the appellant should file a motion for articulation. In the absence of such action, the reviewing court should presume that the trial court considered all of the facts before it and applied the correct legal standard. Walton v. New Hartford, 223 Conn. 155, 164-65, 612 A.2d 1153 (1992); State v. Prutting, 40 Conn. App. 151, 162, 669 A.2d 1228, cert. denied, 236 Conn. 922, 674 A.2d 1328 (1996).

       General Statutes § 51-195 provides, “Application for review of sentence. Any person sentenced on one or more counts of an information to a term of imprisonment for which the total sentence of all such counts amounts to confinement for three years or more, may, within thirty days from the date such sentence was imposed or if the offender received a suspended sentence with a maximum confinement of three years or more, within thirty days of revocation of such suspended sentence, except in any case in which a different sentence could not have been imposed or in any case in which the sentence or commitment imposed resulted from the court’s acceptance of a plea agreement or in any case in which the sentence imposed was for a lesser term than was proposed in a plea agreement, file with the clerk of the court for the judicial district in which the judgment was rendered an application for review of 1he sentence by the review division. Upon imposition of sentence or at the time of revocation of such suspended sentence, the clerk shall give written notice to the person sentenced of his right to make such a request. Such notice shall include a statement that review of the sentence may result in decrease or increase of the term within the limits fixed by law. A form for making such application shall accompany the notice. The cleric shall forthwith transmit such application to the review division and shall notify the judge who imposed the sentence. Such judge may transmit to the review division a statement of his reasons for imposing the sentence, and shall transmit such a statement within seven days if requested to do so by the review division. The filing of an application for review shall not stay the execution of the sentence.”


author: O’CONNELL, C. J.

text:
    STATE OF CONNECTICUT v. ELEUTERIO CRUZ
    (AC 18921)
    O’Connell, C. J., and Laveiy and Hennessy, Js.

      Argued February 15
    officially released August 15, 2000

      Louis S. Avitabile, special public defender, for the appellant (defendant).

      Joy K. Fausey, deputy assistant state’s attorney, with whom, on the brief, was James E. Thomas, state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

O’CONNELL, C. J.

The defendant, Eleuterio Cruz, appeals from the judgments of conviction, rendered after a jury trial, of larceny in the second degree in violation of General Statutes § 53a-123 (a) (2), possession of narcotics in violation of General Statutes § 21a-279 (a) and possession of narcotics within 1500 feet of a school in violation of § 21a-279 (d). The defendant claims that the trial court improperly (1) failed to instruct the jury that it must not draw an unfavorable inference from the failure of the defendant to testify, (2) joined the larceny and narcotics counts for trial, and (3) failed to instruct the jury on expert witness testimony. We reverse the judgments of the trial court and remand the cases for a new trial.

The jury reasonably could have found the following facts. On October 16, 1997, the defendant was arrested by Hartford police officers pursuant to a warrant charging him with larceny in the second degree. The larceny that provided the basis for the warrant occurred between August 16 and September 30, 1997, when the defendant was a shift manager at a McDonald’s restaurant. A search incident to the defendant’s arrest resulted in the seizure of three bags of heroin from his person. The place of the arrest was within 1500 feet of a public school.

The larceny count was contained in docket no. CR-97-512861, and the two drug counts were in docket no. CR-97-512860. The court granted the state’s motion to consolidate the two cases for trial.

I

The defendant claims first that the trial court improperly failed to instruct the jury that it must not draw an unfavorable inference from his failure to testify. We agree.

General Statutes § 54-84 (b) expressly mandates that the jury be so instructed unless the defendant requests otherwise. The defendant filed no request that the mandatory jury instruction not be given. It is apparent that the court was of the opinion that such an instruction did not have to be given unless the defendant requested it. Following the court’s final instruction, the following colloquy took place out of the presence of the jury:

“[Defense Counsel]: Isn’t there a statutory requirement to instruct the [jury regarding the defendant’s] not testifying?

“The Court: If you requested—I asked you if you had any requests to charge on it. I’ve already given two instructions during the period of the trial. During the trial, I pointed out that he did not—that, they could draw no inference from his failure to testify and so forth. However, if you want a further charge on that, I’ll be delighted to give it to you. Okay? I think it’s—I think, though, that’s something you have to request if you want it, if you want anything further. But I did cover it at least two or three times, at least once during the preliminary statement and at least two or three times during the course of the trial.

“[Defense Counsel]: All right.

“The Court: If you want something further, I’ll be happy to give it. You don’t want anything else at this stage? Anything else? Let’s do the exhibits.”

The defendant did not respond in any way to the court’s offer to give the charge at that juncture. The state argues that the defendant’s silence in the face of the court’s offer should be construed as an intentional exercise of his option under the statute that the instruction not be given. It is the state’s contention that, because the defendant declined the court’s offers to give a late instruction, he waived his claim on appeal. We are not persuaded.

None of the cases relied on by the state involved the § 54-84 (b) mandatory instruction. None carries the heavy weight of the automatic reversal rule fashioned by this court in State v. Suplicki, 33 Conn. App. 126, 130, 634 A.2d 1179, cert. denied, 229 Conn. 920, 642 A.2d 1216 (1994).

In Suplicki, we held that “the total omission of the ‘no adverse inference’ instruction is plain error that is not subject to a harmless error analysis. The unconditional language of the statute is a legislative mandate and the failure to use that language is a pivotal aspect of the defendant’s privilege against self incrimination. The statutory language is based on a constitutional right and its omission can never be harmless.” Id. We will not infer a waiver from the defendant’s silence. Because the trial court failed to give the mandatory instruction, the judgments must be reversed and a new trial ordered.

II

The defendant claims next that the trial court improperly consolidated the trial of the drug counts with the larceny count. We do not agree.

We note that even though our decision on the first issue requires a new trial, we also consider this claim because this issue is likely to arise again at retrial. Prior to the start of jury selection, the state filed a motion to consolidate the larceny and the drug informations. See Practice Book § 41-19. In deciding whether a defendant should be tried jointly on charges arising separately, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb. State v. King, 187 Conn. 292, 299, 445 A.2d 901 (1982). The defendant bears the heavy burden of showing that the court’s action resulted in substantial injustice and that any resulting prejudice was beyond the curative power of the court’s instructions. State v. Boscarino, 204 Conn. 714, 721, 529 A.2d 1260 (1987). Factors for the trial court to consider in determining whether cases should be consolidated are well established. These include (1) whether the charges involved discrete, easily distinguishable factual scenarios, (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part and (3) the duration and complexity of the trial. Id., 722-23.

An examination of those factors in the present case shows that the charges involved discrete, easily distinguishable factual scenarios. The fact patterns were simple and direct, and the crimes were totally different from each other and involved different locations and times. The evidence was presented in a simple chronological order that clearly distinguished the evidence applicable to each case. State v. Bell, 188 Conn. 406, 411, 450 A.2d 356 (1982). There is no likelihood that the jury could confuse the evidence from one case with the other case. The crimes were not of a brutal or shocking nature. The trial was brief and not complex, the evidentiary portion lasting only two days. Only eight witnesses testified, six very briefly. Our Supreme Court has upheld consolidation in cases involving longer and more complex trials. See, e.g., State v. Jennings, 216 Conn. 647, 659-60, 583 A.2d 915 (1990) (fourteen witnesses and twenty-eight exhibits over five days); State v. Herring, 210 Conn. 78, 97, 554 A.2d 686 (twenty-three witnesses over eight days), cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989).

Although the trial court did not include a cautionary charge in its final instructions, it did remark to the jury, just prior to final arguments, that it must be careful to not use the evidence from one case to influence its decision on the other. Although it might have been preferable for the court to include these remarks as part of its final instructions, it is clear that keeping the cases separate was brought to the jury’s attention.

The trial court did not abuse its discretion in consolidating the two cases for trial.

Ill

The defendant claims finally that the trial court improperly failed to instruct the jury on the assessment of expert testimony. Because this issue may not arise on retrial, we decline to review it.

The judgments are reversed and the cases are remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 54-84 (b) provides in relevant part: “Unless the accused person requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. . . .”

       The court commented to the jury as follows: “I think it is important just to reiterate one or two other things. It’s important to remember that you have to judge these cases, the three cases in the three counts separately from one another. Just because you find one, doesn’t mean that you have to find the other. So, I just want to make sure that you keep these clear cut distinctions in your mind.”


author: PER CURIAM.

text:
    ROBERT LITTLEFIELD v. COMMISSIONER OF CORRECTION
    (AC 19215)
    O’Connell, C. J., and Hennessy and Zarella, Js.

    Argued February 22
    officially released August 22, 2000

      David B. Rozwaski, for the appellant (petitioner).

      James E. Ralls, assistant state’s attorney, with whom, on the brief, were John Bailey, chief state’s attorney, and Kimberley Perrelli, assistant state’s attorney, for the appellee (respondent).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

PER CURIAM.

The petitioner, Robert Littlefield, appeals from the habeas court’s denial of his amended petition for a writ of habeas corpus. Following a review of the record and briefs and after hearing the parties at oral argument, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right. Accordingly, we affirm the judgment of the habeas court.

On February 9, 1995, the petitioner pleaded guilty to six charges in two files. He was sentenced to a total effective sentence of twenty-five years, suspended after thirteen years, with seven years probation. In 1998, the petitioner filed an amended petition for a writ of habeas corpus, alleging that he had been denied effective assistance of trial counsel. Specifically, the petitioner alleged that trial counsel failed to advise him adequately regarding his decision to plead guilty and failed to move to suppress his confessions based on the petitioner’s allegations of coercion. Following trial, the habeas court denied the petition.

The habeas court’s denial of the petitioner’s petition was predicated on a factual review of the petitioner’s claim. “This court does not retry the case or evaluate the credibility of witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the-credibility of witnesses based on its firsthand observation of their conduct, demeanor and attitude.” (Citation omitted; internal quotation marks omitted.) State v. McClam, 44 Conn. App. 198, 208, 689 A.2d 475, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997).

In a thoughtful and comprehensive memorandum of decision, the habeas court analyzed the petitioner’s claim and the law applicable thereto. Littlefield v. Commissioner of Correction, 46 Conn. Sup. 495, 757 A.2d 1272 (1998). Because the habeas court’s memorandum of decision fully addresses the issues raised in this appeal, we adopt it as a proper statement of the facts and the applicable law. It would serve no useful purpose for us to repeat the discussion contained therein. See Diggs v. Commissioner of Correction, 57 Conn. App. 734, 736, 750 A.2d 1151 (2000). We conclude that the habeas court had before it sufficient evidence to find as it did.

The judgment is affirmed.

       In file CR94-53505, the petitioner pleaded guilty to arson in the first degree in violation of General Statutes § 53a-lll (a) (1), reckless endangerment in the first degree in violation of General Statutes § 53a-63, and risk of injury to a child in violation of General Statutes § 53-21.
      In file CR94-53404, the petitioner pleaded guilty to sexual assault in the second degree in violation of General Statutes § 53a-71, sexual assault in the fourth degree in violal ion of General Statutes § 53a-73a and risk of injury to a child in violation of § 53-21.


author: HEALEY, J.

text:
    STATE OF CONNECTICUT v. ARTHUR COSCUNA
    (AC 19180)
    Foti, Hennessy and Healey, Js.

      Argued April 4
    officially released August 22, 2000

      Pasquale Young, for the appellant (defendant).

      Milehell S. Brody, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Lisa A. Riggione, senior assistant state’s attorney, for the appellee (state).
   Opinion

HEALEY, J.

The defendant, Arthur Coscuna, appeals from the judgment of conviction, rendered after a trial to the court, of improper parking in violation of General Statutes § 14-251 and failure to signal in violation of General Statutes § 14-244. On appeal, the defendant claims that the trial court improperly determined that there was sufficient evidence to find him guilty of violating either statute. We affirm the judgment of the trial court.

The court reasonably could have found the following facts. On May 23,1998, at about 3:15 a.m., the defendant was operating his 1996 Cadillac El Dorado westbound on East Main Street, a public highway in Meriden. On that portion of East Main Street, there is one lane in each direction. At that time, John Williams, an officer with the Meriden police department, was patrolling westbound on East Main Street in a marked police cruiser. Williams observed two vehicles also headed in a westerly direction, one behind the other, which were stopped in the middle of the highway. The first of these two vehicles was that of the defendant, who had the westbound lane completely blocked. When Williams first saw the defendant’s vehicle, it was stopped.

For approximately two or three minutes, Williams sat in his cruiser behind both vehicles and observed the defendant talking through the car window to a woman who was standing on the sidewalk. After a few minutes, the operator of the vehicle immediately behind the defendant drove around the defendant’s vehicle, crossed into the other lane over the double yellow lines and drove off. Another minute or so passed, and Williams pulled his cruiser behind the defendant’s vehicle. As he was doing so, the defendant was still talking to the female pedestrian. The pedestrian then got into the defendant’s vehicle and they drove away. Williams followed the defendant for one-half block before signaling him to pull over.

Williams gave the defendant a motor vehicle summons for improper parking in violation of § 14-251 and failure to signal in violation of § 14-244. He pleaded not guilty to those charges and appeared at a hearing before a magistrate. The magistrate found him not guilty of violating § 14-244 and guilty of violating § 14-251. Thereafter, a trial de novo was held in the Superior Court before Dunnell, J. The defendant moved for a judgment of acquittal at the end of the state’s case as well as at the close of the entire case. The court denied both motions. The court found the defendant guilty on both charges and fined him $90 on each infraction. This appeal followed. Additional facts will be discussed where necessary.

I

The defendant claims that the court improperly determined that he violated § 14-251. We disagree.

A

The defendant claims first that § 14-251 does not apply in Meriden. We disagree.

The defendant argues that § 14-251 is not applicable because Meriden has adopted its own parking regulations. In making this claim, the defendant draws on the language of § 14-251, which provides in relevant part: “Nothing in this section shall be construed to . . . prohibit a vehicle from . . . stopping on any highway within the limits of an incorporated city, town or borough where the parking of vehicles is regulated by local ordinances. ...” In support of that position, he cites an opinion rendered by the office of the attorney general. He argues that the city of Meriden has adopted its own parking regulations and, therefore, § 14-251 does not apply in Meriden.

The state objects to any consideration of this claim sounding in preemption. In doing so, the state contends that the burden of proving that a superseding local ordinance regulating parking involves an affirmative defense for the defendant to prove and not an element of the infraction, as the defendant appears to claim. In any event, the state claims that review of the superseding local ordinance also is unwarranted because this defense was not mentioned at trial, and the defendant did not address State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), in his appeal. In effect, the defendant, through his preemption claim, is contending that the Meriden parking ordinance applies, as opposed to the state statutes. Therefore, although the state’s argument regarding the defendant’s lack of acknowledgement of Golding is correct, we must reach this issue because it would be error as a matter of law to have submitted a wholly inapplicable statute to the finder of fact as the basis for its finding of guilt or innocence in this case. See Medley v. Mogelnicki, 170 Conn. 583, 587, 368 A.2d 60 (1976); Lutkus v. Kelly, 170 Conn. 252, 258, 365 A.2d 816 (1976); Angelino v. Hersey, 147 Conn. 638, 640, 165 A.2d 152 (1960).

“[T]he process of statutory interpretation involves a reasoned search for the intention of the legislature. ... As with any issue of statutory interpretation, our initial guide is the language of the statute itself. . . . Furthermore, we interpret statutory language in light of the purpose and policy behind the enactment. . . . Finally, in seeking to ascertain the intent of the legislature regarding the proper construction of [a statute], we are guided by the golden rule of statutory interpretation . . . that the legislature is presumed to have intended a reasonable, just and constitutional result.” (Internal quotation marks omitted.) Kulig v. Crown Supermarket, 250 Conn. 603, 607-608, 738 A.2d 613 (1999).

“We are required to construe a statute in a manner that will not thwart [the legislature’s] intended purpose or lead to absurd results. . . . We must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve.” (Internal quotation marks omitted.) State v. Ehlers, 252 Conn. 579, 593, 750 A.2d 1079 (2000). The interpretation that the defendant would have us apply to § 14-251, i.e., that it is superseded by the parking regulations in the Meriden City Code, would lead to an absurd result.

The burden of proving that the Meriden parking regulations supersede the relevant statute is on the proponent of that claim. See State v. Radzvilowicz, 47 Conn. App. 1, 36, 703 A.2d 767, cert. denied, 243 Conn. 955, 704 A.2d 806 (1997). The only authority that the defendant cites to support his superseding local ordinance claim is a 1950 opinion issued by the attorney general. See Opinions, Conn. Atty. Gen. No. 50-94 (March 9, 1950). An examination of the Meriden code reveals, however, that there is no language regarding stopping or parking in such a way as would “constitute a traffic hazard or obstruct the free movement of traffic,” as stated in § 14-251. We recognize that the Meriden code addresses other aspects of parking, but it does not specifically address that portion of § 14-251 with which the defendant was charged. Therefore, the Meriden code does not supersede § 14-251 because it does not include, as permitted by § 14-251, any provision concerning any vehicle remaining “stationary within the limits of a public highway in such a manner as to constitute a traffic hazard or obstruct the free movement of traffic thereon . . . .” General Statutes § 14-251. Any other interpretation of this statute would produce absurd and bizarre results because, as the state suggests, it would render § 14-251 inoperative against any generally pertinent municipal ordinance. We therefore conclude that § 14-251 applies in the absence of any superseding provision of the Meriden code.

B

The defendant claims next that even if § 14-251 does apply in Meriden, there was insufficient evidence for the court to determine that he violated the statute. We disagree.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In this process of review, it does not dimmish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . .

“While the [trier of fact] must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the [trier] to conclude that a basic fact or an inferred fact is true, the [trier] is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . . Moreover, [i]n evaluating evidence that could yield contrary inferences, the [trier of fact] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. ... As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [trier of fact], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier’s] verdict of guilty.” (Citations omitted; internal quotation marks omitted.) State v. Torres, 242 Conn. 485, 489-90, 698 A.2d 898 (1997).

It is well established that “[t]his court cannot substitute its own judgment for that of the [trier of fact] if there is sufficient evidence to support the [trier’s] verdict. . . . Accordingly, [w]e do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. . . . Rather, we must defer to the [trier’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . Finally, [i]n reviewing the. . . verdict, it is well to remember that [triers of fact] are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct. . . . [S]ee also State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985) ([i]t is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom).” (Citations omitted; internal quotation marks omitted.) State v. Torres, supra, 242 Conn. 490-91.

The defendant argues that he stopped his vehicle only to pick up a passenger and that he did not shut off the motor or leave his vehicle at any time. He claims further that the evidence failed to show that he actually “parked” his vehicle at any time. Pursuant to General Statutes § 14-297 (4), “parking” is defined as “the standing of a vehicle, whether occupied or not, on a highway, except it shall not include the temporary standing of a vehicle for the purpose of and while engaged in receiving or discharging passengers . . . .” Section 14-251, however, merely uses the term “parking” in its title. “While the title of [a statute] may be considered ... it is not conclusive, and it is of little importance compared with the text.” (Citations omitted.) Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 98, 291 A.2d 721 (1971). The specific provision of § 14-251 at issue in this case provides: “No vehicle shall be permitted to remain stationary ... in such a manner as to constitute a traffic hazard or obstruct the free movement of traffic . . . .” According to Williams’ testimony, the defendant’s vehicle was stopped in the middle of the road, even though there was another vehicle directly behind him. Furthermore, the defendant’s vehicle was in that position long enough to cause the vehicle immediately to its rear to go around the defendant’s vehicle by crossing the double yellow lines. By obstructing the free flow of traffic, the defendant created a situation that could have caused an accident.

In announcing its decision, the court found Williams’ testimony to be credible and further stated that because the defendant kept his vehicle stationary long enough to require the other vehicle to go around the defendant’s vehicle, he could not avail himself of the protection that § 14-297 (4) affords for picking up and discharging passengers. We conclude that it was reasonable for the court to not only find Williams’ testimony credible, but also to find that there was sufficient evidence to support the determination that the defendant violated § 14-251.

II

The defendant’s final claim is that the court improperly found him guilty of not signaling when he was planning to stop his vehicle on the highway in violation of § 14-244. We disagree.

The defendant claims that Williams could not have seen him signal because the defendant already was stopped when Williams arrived and that the defendant therefore should not have received a summons. Furthermore, the defendant maintains that because Williams did not see him until he already was stopped, the fact that his brake lights were functioning properly should have been enough of a signal to Williams that he was stopped. The defendant, however, admitted during trial that he did not signal when he was planning to stop, as required by § 14-244. In deciding that the defendant was guilty of violating § 14-244, the court acknowledged that the evidence showed that Williams had not seen the defendant’s vehicle come to a stop. The defendant’s admission that he did not signal, however, was the basis for the court’s decision.

“Our standard of review is well established. In'a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. ... On appeal, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled. ... A factual finding may be rejected by this court only if it is clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Weyel v. Catania, 52 Conn. App. 292, 295, 728 A.2d 512, cert. denied, 248 Conn. 922, 733 A.2d 846 (1999).

It is clear that the court used the defendant’s admission that he did not signal his stop to reach its conclusion that he violated § 14-244. The defendant claims, however, that he never admitted to not signaling. He claims that when the state asked, “Did you signal?” to which the defendant responded, “No,” he believed that the state was asking if he signaled the passenger to enter his vehicle. This argument is not persuasive.

Again, “[i]n considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.” State v. Sandra O., 51 Conn. App. 463, 468, 724 A.2d 1127 (1999). The record is rife with the word “signal,” and its usage always was in reference to the operation of the defendant’s vehicle.

In our view, the court acted properly in treating the defendant’s admission as the basis for finding him guilty of the charge under § 14-244. We cannot say, as a matter of law, that the trial court’s conclusion was, in accordance with the principles already set out, clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-251 provides: “No vehicle shall be permitted to remain stationary within ten feet of any fire hydrant, or upon the traveled portion of any highway except upon the right-hand side of such highway in the direction in which such vehicle is headed; and, if such highway is curbed, such vehicle shall be so placed that its right-hand wheels, when stationary, shall, when safety will permit, be within a distance of twelve inches from the curb. No vehicle shall be permitted to remain parked within twenty-five feet of an intersection or a marked crosswalk thereat, or within twenty-five feet of a stop sign caused to be erected by the traffic authority in accordance with the provisions of section 14-301. No vehicle shall be permitted to remain stationary upon the traveled portion of any highway at any curve or turn or at the top of any grade where a clear view of such vehicle may not be had from a distance of at least one hundred and fifty feet in either direction. The Commissioner of Transportation may post signs upon any highway at any place where the keeping of a vehicle stationary is dangerous to traffic, and the keeping of any vehicle stationary contrary to the directions of such signs shall be a violation of this section. No vehicle shall be permitted to remain stationary upon the traveled portion of any highway within fifty feet of the point where another vehicle, which had previously stopped, continues to remain stationary on the opposite side of the traveled portion of the same highway. No vehicle shall be permitted to remain stationary within the limits of a public highway in such a manner as to constitute a traffic hazard or obstruct the free movement of traffic thereon, provided a vehicle which has become disabled to such an extent that it is impossible or impracticable to remove it may be permitted to so remain for a reasonable time for the purpose of making repairs thereto or of obtaining sufficient assistance to remove it. Nothing in this section shall be construed to apply to emergency vehicles and to maintenance vehicles displaying flashing lights or to prohibit a vehicle from stopping, or being held stationary by any officer, in an emergency to avoid accident or to give a right-of-way to any vehicle or pedestrian as provided in this chapter, or from stopping on any highway within the limits of an incorporated city, town or borough where the parking of vehicles is regulated by local ordinances. Violation of any provision of this section shall be an infraction.”

       General Statutes § 14-244 provides: “Any stop or turn signal required by section 14-242 or 14-243 may be given either by means of the hand and arm or by a signal lamp or lamps or mechanical signal device. Hand signals shall be as follows: (1) To stop or decrease speed: Hand and arm extended downward; (2) to turn left or to leave or draw away from a curb or the edge of the highway: Hand and arm extended horizontally with forefinger pointed; (3) to turn right: Hand and arm extended upward. Each operator of a motor vehicle who makes a turn signal by means of signal lamps or mechanical signal device shall turn in the direction indicated and return such signal to the nonoperating position immediately after completing the movement for which a signal has been given. Violation of any of the provisions of this section shall be an infraction.”
      General Statutes § 14-242 provides in relevant part: “(c) No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided in section 14-244 to the driver of any vehicle immediately to the rear when there is opportunity to give such signal. . . .
      “(f) Violation of any of the provisions of this section shall bean infraction.”

       There are certain subissues, especially as to his claim regarding the violation of § 14-251, that are set forth in our discussion of the defendant’s claims.

       Also, there were numerous vehicles parked along the curb of East Main Street.

       The defendant was double-parked at the time, and his brake lights and signal lights were operating properly.

       The defendant cites a 1950 opinion by the attorney general. See Opinions, Conn. Atty. Gen. No. 50-94 (March 9, 1950). The opinion by the attorney general, however, is the only legal authority cited in the defendant’s brief on what fairly can be called a claim of preemption. “The opinion of the attorney general is entitled to substantial weight, but is not binding on the court.” Cairns v. Shugrue, 186 Conn. 300, 309, 441 A.2d 185 (1982).

       It is true that the defendant did not make this claim in the trial court. More to the point, he provides sparse analysis on appeal of his claim that the Meriden parking regulations supersede § 14-251.

       If this court were to conclude in favor of the defendant that the statute does not apply, the trial court would have committed plain error, which would be reviewable by this court. See State v. Thornton, 55 Conn. App. 28, 31, 739 A.2d 271 (1999).

       If the Meriden code did address 1he circumstance of any vehicle remaining ‘'stationary ... in such a manner as to constitute a traffic hazard or obstruct the free movement of traffic,” the defendant should have been charged under that provision.


author: PELLEGRINO, J.

text:
    SUSAN POSPISIL v. EDWARD POSPISIL
    (AC 19037)
    Foti, Spear and Pellegrino, Js.
    Argued April 27
    officially released August 22, 2000

      C. Michael Budlong, with whom were Campbell D. Barrett and Davis S. Allen, for the appellant (defendant).

      Bruce S. Beck, for the appellee (plaintiff).
   Opinion

PELLEGRINO, J.

The defendant, Edward Pospisil, appeals from the trial court’s denial of his motion to open the judgment of dissolution of his marriage with the plaintiff, Susan Pospisil. The defendant claims that the court (1) abused its discretion by denying his motion to open the judgment and (2) improperly granted the plaintiff’s motion for counsel fees. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On August 2,1995, the parties entered into a written agreement to dissolve their twenty-five year marriage. The parties’ agreement was incorporated into the judgment of dissolution. As of the date of the dissolution of the marriage, the parties had four minor children, and the defendant was awarded sole custody of them. The agreement required the plaintiff to pay support to the defendant in an amount as provided under the child support guidelines, and the defendant agreed to pay alimony in the same amount as the plaintiffs support obligation, so that in effect the obligations of both parties were equal and offset each other. The defendant’s alimony obligation was to terminate at the time the plaintiffs support obligation terminates. There was no provision in the agreement for termination of the alimony at the time the plaintiff remarries. During the negotiation of the dissolution agreement, the plaintiff harbored, but never disclosed, an intention to remarry after the dissolution of the marriage. On October 7,1995, approximately two months after the dissolution judgment was rendered, the plaintiff remarried.

On June 15, 1998, the plaintiff caused the defendant to be served with a motion for contempt for his failure to execute a qualified domestic relations order. Thereafter, on July 27, 1998, the defendant filed a motion to open the dissolution judgment on the basis of fraud. On September 11, 1998, the plaintiff, pursuant to General Statutes § 46b-62, filed a motion for counsel fees, claiming that the defendant’s motion to open lacked merit. After a hearing on October 28, 1998, the court denied the defendant’s motion to open the judgment, denied the plaintiffs motion for contempt and granted her motion for counsel fees. On November 17, 1998, the defendant filed this appeal. Subsequently, on February 2, 1999, the defendant filed a motion for articulation, to which the trial court responded on June 22, 1999, with an oral articulation.

I

The defendant first claims that the court abused its discretion by denying his motion to open the dissolution judgment. We disagree.

At the hearing on the defendant’s motion to open, the defendant claimed that the plaintiffs failure to disclose her intention to remarry was a material fact that the defendant should have been accorded the opportunity to consider when the parties entered into the dissolution agreement. The defendant argued that because the plaintiffs failure to disclose her intention to remarry amounted to fraud, the court should open the dissolution judgment. The court reasoned that because an intention to remarry in the future is not a fact but a mere expectation or ambition, the nondisclosure of such an intention was not a misrepresentation of a fact that would support a finding of fraud. Because the plaintiffs actions did not amount to fraud, the court denied the defendant’s motion to open the judgment.

Our review of a court’s denial of a motion to open is well settled. “We do not undertake a plenary review of the merits of a decision of the trial court to grant or to deny a motion to open a judgment.” (Internal quotation marks omitted.)Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 809, 695 A.2d 1010 (1997). “In an appeal from a denial of a motion to open a judgment, our review is limited to the issue of whether the trial court has acted unreasonably and in clear abuse of its discretion.” Carlin Contracting Co. v. Dept. of Consumer Protection, 49 Conn. App. 501, 502-503, 714 A.2d 714 (1998). “In determining whether the trial court abused its discretion, this court must make eveiy reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Searles v. Schulman, 58 Conn. App. 373, 377, 753 A.2d 420 (2000).

The defendant argues that the court abused its discretion by denying his motion to open the dissolution judgment because the plaintiffs failure to disclose her intention to remarry amounted to a fraudulent nondisclosure of a material fact. The plaintiff asserts that the court properly denied the defendant’s motion to open the dissolution judgment because her failure to disclose an intention to remarry in the future does not amount to a fraudulent nondisclosure.

It is clear that a “marital judgment based upon a stipulation may be opened if the stipulation, and thus judgment, was obtained by fraud.” Billington v. Billington, 220 Conn. 212, 217-18, 595 A.2d 1377 (1991); Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980). It is equally well established that a stipulated marital judgment may be opened if obtained by fraudulent nondisclosure. See Gelinas v. Gelinas, 10 Conn. App. 167, 173, 522 A.2d 295, cert. denied, 204 Conn. 802, 525 A.2d 965 (1987); Jackson v. Jackson, 2 Conn. App. 179, 194, 478 A.2d 1026, cert. denied, 194 Conn. 805, 482 A.2d 710 (1984). “Fraud involves deception practiced in order to induce another to act to her detriment, and which causes that detrimental action.” Gelinas v. Gelinas, supra, 173. “The four essential elements of fraud are (1) that a false representation of fact was made; (2) that the party making the representation knew it to be false; (3) that the representation was made to induce action by the other party; and (4) that the other party did so act to her detriment. . . . Fraud by nondisclosure, which expands on the first three of these four elements, involves the failure to make a full and fair disclosure of known facts connected with a matter about which a party has assumed to speak, under circumstances in which there is a duty to speak.” Id. A judgment will be set aside on the basis of fraud, however, only if the movant is not barred by any of the following restrictions: (1) there must have been no laches or unreasonable delay by the injured party after the fraud was discovered; (2) there must be clear proof of the fraud; and (3) there is a substantial likelihood that the result of the new trial will be different. Billington v. Billington, supra, 218.

In the present case, it is clear that the plaintiff harbored, but never disclosed, an intention to remarry at some point after the dissolution of her marriage with the defendant. At no point during the dissolution proceedings, however, did the court or the defendant ever question the plaintiff about her intentions to remarry. Thus, we are satisfied that the plaintiff did not deliberately conceal or purposely mislead the court or the defendant about her intention to remarry.

Furthermore, the plaintiffs failure to disclose her intention to remarry cannot amount to fraudulent nondisclosure. The mere intention to perform an act in the future cannot be considered a “known fact” because a party’s intention to perform may never materialize into actual performance. A finding of fraudulent nondisclosure requires a failure of a “disclosure of known facts.” Gelinas v. Gelinas, supra, 10 Conn. App. 173. There is no such obligation as to one’s intention or expectation. The court found that the plaintiffs intention to remarry was a mere expectation and not a certainty. Therefore, it did not abuse its discretion by denying the defendant’s motion to open the dissolution judgment after concluding that the plaintiffs actions did not amount to a fraudulent nondisclosure of a known fact.

II

The defendant next claims that the court improperly granted the plaintiff counsel fees. We decline, however, to review this claim because the defendant has failed to furnish us with an adequate record.

At the conclusion of the October 28, 1998 hearing, the court awarded the plaintiff counsel fees. Because the basis for the court’s award of counsel fees was unclear, the defendant subsequently filed a motion for articulation. On June 22,1999, the court, by oral articulation, failed to clarify properly the basis of the counsel fee award. In both his principal brief and reply brief, the defendant admits that the court’s oral articulation lacked clarity. “[W]here a party is dissatisfied with the trial court’s response to a motion for articulation, he may, and indeed under appropriate circumstances he must, seek immediate appeal ... to this court via the motion for review.” Barnes v. Barnes, 190 Conn. 491, 493 n.2, 460 A.2d 1302 (1983); Buchetto v. Haggquist, 17 Conn. App. 544, 549, 554 A.2d 763, cert. denied, 211 Conn. 808, 559 A.2d 1141 (1989). The defendant, however, failed to file a motion for review pursuant to Practice Book § 66-7.

“Because it is the appellant’s responsibility to provide this court with an adequate record for review . . . we will not remand a case to correct a deficiency the appellant should have remedied.” (Internal quotation marks omitted.) State v. One 1993 Black Kenworth Truck, 41 Conn. App. 779, 789, 679 A.2d 13 (1996); Rogozinski v. American Food Service Equipment Corp., 34 Conn. App. 732, 735 n.5, 643 A.2d 300, cert. denied, 231 Conn. 910, 648 A.2d 156 (1994). Therefore, because the defendant has failed to provide us with an adequate record for review, we decline to review his claim that the court improperly granted the plaintiffs motion for counsel fees.

The judgment is affirmed.

In this opinion the other judges concurred.

       The guidelines were issued by the commission for child support guidelines pursuant to General Statutes § 46b-215a, which provides in relevant part: “The Commission for Child Support Guidelines is established to review the child support guidelines promulgated pursuant to section 8 of public act 85-548, to establish criteria for the establishment of guidelines to ensure the appropriateness of child support awards and to issue updated guidelines not later than October 1, 1993, and every four years thereafter. . . .”

       General Statutes § 46b-62 provides in relevant part: “In any proceeding seeking relief under the provisions of this chapter . . . the court may order either spouse or . . . either parent to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in 46b-82. . . .”

       The awarded counsel fees amount to $3994.50.

       Practice Book § 66-7 provides in relevant part: “Any party aggrieved by the action of the trial judge as regards . . . articulation under Section 66-5 may, within ten days of the issuance of notice of the order sought to be reviewed, make a written motion for review to the court, to be filed with the appellate clerk, and the court may, upon such a motion, direct any action it deems proper. ...”


author: SHEA, J.

text:
    JANET G. HOPFER v. RICHARD A. HOPFER, JR.
    (AC 19162)
    Schaller, Hennessy and Shea, Js.

      Argued February 24
    officially released August 22, 2000

      Lawrence P. Weisman, for the appellant (plaintiff).

      Susan M. Cormier, with whom were Michelle Killion, certified legal intern and, on the brief, Edward Nus-baum, for the appellee (defendant).
   Opinion

SHEA, J.

The plaintiff, Janet G. Hopfer, appeals from the judgment of the trial court dissolving her marriage to the defendant, Richard A. Hopfer, Jr. On appeal, the plaintiff claims that the court improperly (1) found that the defendant’s unvested stock options were not marital assets and therefore not subject to distribution, (2) awarded nonmodifiable time limited alimony for a period of eleven years and (3) awarded an inadequate amount of alimony, that is, $72,000 annually for two years and $48,000 annually for an additional nine years. We affirm the judgment of the trial court.

The court found the following facts. After eighteen years of marriage, the plaintiff brought a dissolution action against the defendant. The defendant then filed a cross complaint and, soon thereafter, the plaintiff withdrew her complaint. The cross complaint sought a dissolution of the marriage on the ground that it had irretrievably broken down, joint custody of the parties’ two children, an equitable distribution of the parties’ real and personal property, and such other relief, legal or equitable, as the court should deem proper.

On December 18, 1998, the court rendered judgment on the cross complaint, dissolving the marriage on the ground that it had irretrievably broken down and implicitly approving the stipulation of the parties for joint custody of the children, who are to reside with the plaintiff. The judgment provided that the plaintiff shall retain title to the marital residence as her sole property, but shall assume the mortgages and hold the defendant harmless from and indemnified as to them. The contents of the home were awarded to the plaintiff as her sole property. She also was awarded 50 percent of the defendant’s 401 (k) plans, valued at $80,087, and 50 percent of his 667 vested stock options from Viacom, which options on December 4, 1998, had a gross value of $19,343 before taxes.

The court found that from 1995 to November, 1998, the defendant was employed by Simon & Schuster, a subsidiary of Viacom. He worked for Simon & Schuster for three years between 1995 and November, 1998. His salary was $219,000 per year with a bonus of up to 35 percent. In December, 1997, the parent company, Viacom, announced plans to sell Simon & Schuster. The defendant was offered a retention bonus of 50 percent of his base salary to stay with the company for a period beyond the date of sale. The date, however, was postponed several times, and the defendant became concerned about his future employment when the new management took over. In 1997, prior to the proposed sale, he had inquired about employment at Amazon.com, but he received no job offer.

In October, 1998, a year and three months after the plaintiff served her complaint seeking a dissolution of the marriage, the defendant was employed by NetSelect, Inc., located in Westlake Village, California. He was its chief information officer with a base salary of $170,000 and a target bonus of 25 percent. He also received options for 75,000 shares of stock at $6.31 per share, which vest at the rate of 25 percent per year with an initial vesting date of November, 1999.

The court also ordered the defendant to pay to the plaintiff, as nonmodifiable periodic alimony, $6000 per month for twenty-four months and $4000 per month for an additional nine years. The alimony is subject to sooner termination if the plaintiff remarries, either party dies or if ordered by a court.

The court also ordered the defendant to pay $480 per week to the plaintiff as child support for the two children until they both attain nineteen years of age or sooner graduate from high school. The final paragraph of the judgment ordered the defendant to continue to maintain the existing life insurance policies providing $270,000 coverage for the plaintiff for as long as he is obliged to pay alimony to her and to provide the existing coverage for the children while he is obliged to pay child support.

The judgment did allow the defendant to retain his remaining assets consisting of life insurance having a cash value of $4010, a gold watch valued at $1500, a coin collection valued at $5000, and one-half of the furnishings with an estimated value of $12,500. For liabilities, the plaintiff listed $18,964 of credit card debt and the defendant listed $4050 of credit card debt and store charges.

The court also found, however, that the grant of stock options by NetSelect, Inc., to the defendant was made for future services to be performed after the final separation of the parties on September 3, 1996. Relying on Bornemann v. Bornemann, 245 Conn. 508, 752 A.2d 978 (1998), the court held that the NetSelect options were not marital assets subject to distribution pursuant to General Statutes § 46b-81. The plaintiff appealed from the court’s judgment. Additional facts will be discussed where necessary.

I

The plaintiff claims that the court improperly found that the defendant’s unvested stock options were not marital assets and therefore not subject to distribution. She claims that the decision in Bornemann, on which the court relied in concluding that the NetSelect stock options were not a marital asset subject to distribution pursuant to § 46b-81, was not applicable in this case. We disagree.

“Our review is guided by the well established principle that [t]he resolution of conflicting factual claims falls within the province of the trial court . . . [and] [t]he trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole.” (Internal quotation marks omitted.) Bornemann v. Bornemann, supra, 245 Conn. 527.

The plaintiff argues that Bornemann does not apply because the defendant in the present case voluntarily left his job, whereas the defendant in Bornemann was involuntarily terminated. We conclude that the claimed distinction was not pertinent to the decision in Bornemann. In Bornemann, the court determined that unvested stock options could be considered marital property. Id., 518-20. It further concluded that to be considered marital property, the “court must determine whether an asset was earned prior to or subsequent to the date of dissolution in order to determine whether the asset is marital property. This approach is common in other jurisdictions that have considered the extent to which unvested stock options represent marital property for the reason that state statutes commonly distinguish between assets earned or acquired prior to separation or dissolution and assets earned or acquired subsequent to separation or dissolution. In determining when unvested stock options were earned, or will be earned, the purpose for which the options were granted must be considered. Stock options may be awarded for a variety of purposes—including to compensate the employee for past or present services, or to provide an incentive for future service—that may or may not relate in whole or in part to the period of the marriage.” Id., 521-22.

The defendant’s employment with NetSelect, Inc., began on November 11,1998, approximately one month before the court rendered judgment in the dissolution trial. Furthermore, the first 25 percent of the options would not vest until November 11,1999. hiBomemann, the stock options were found to be awarded for past services. Id., 529. In the present case, however, the court found that the stock options were rendered entirely as incentive for future services and therefore were not considered marital assets subject to division. This finding is supported by the facts and it therefore is not clearly erroneous.

II

The plaintiff next claims that the court improperly awarded nonmodifiable time limited alimony for a period of eleven years because it was inappropriate and inadequate under all the circumstances, including the duration of the marriage, the plaintiffs age, her work experience and the defendant’s responsibility for the breakdown of the marriage. We disagree.

“The standard of review of financial awards in dissolution appeals is well settled. Our role as an appellate court is not to retry the facts of the case, substitute our judgment for that of the trial court, or articulate or clarify the trial court’s decision. ... In reviewing the trial court’s decision under [an abuse of discretion] standard, we are cognizant that [t]he issues involving financial orders are entirely interwoven. The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other. . . . When reviewing claims that the trial court abused its discretion in making these awards, every reasonable presumption should be given in favor of its correctness.” (Citations omitted; internal quotation marks omitted.) Cordone v. Cordone, 51 Conn. App. 530, 532-33, 752 A.2d 1082 (1999).

“When awarding time limited alimony, the trial court need not make a detailed finding justifying its award. . . . Although a specific finding for an award of time limited alimony is not required, the record must indicate the basis for the trial court’s award. . . . There must be sufficient evidence to support the trial court’s finding that the spouse should receive time limited alimony for the particular duration established. If the time period for the periodic alimony is logically inconsistent with the facts found or the evidence, it cannot stand.” (Citation omitted; internal quotation marks omitted.) Ashton v. Ashton, 31 Conn. App. 736, 744, 627 A.2d 943, cert. denied, 228 Conn. 901, 634 A.2d 295 (1993).

The court found that during the parties’ marriage, the plaintiff taught school for two year’s in Arizona before her children were born. She has a bachelor of arts degree in education and sociology that she received in 1979. More recently, she was employed at an art gallery and at a preschool. She also is licensed as a real estate sales agent and worked for about two years during the 1980s at her mother’s real estate business. She was a publisher of a children’s periodical that circulated in southwestern Connecticut.

“Underlying the concept of time limited alimony is the sound policy that such awards may provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency.” Markarian v. Markarian, 2 Conn. App. 14, 16, 475 A.2d 337 (1984). We conclude that the court’s memorandum of decision and the findings therein indicate that the court’s purpose was indeed to provide an incentive for the plaintiff to become self-supporting at some occupation for which she can become reasonably qualified through additional education and training. Having observed the plaintiff during the court proceedings, the trial court is better qualified than we are to evaluate the likelihood that the plaintiff will become self-supporting by the time the alimony order expires. The court, therefore, did not abuse its discretion.

Ill

The plaintiffs final claim is that the court’s award of alimony was inadequate. We disagree.

“As in the distribution of marital assets, the trial court is afforded broad discretion in making awards of alimony.” (Internal quotation marks omitted.) Milbauer v. Milbauer, 54 Conn. App. 304, 312, 733 A.2d 907 (1999). In the present case, the court ordered the defendant to pay to the plaintiff periodic alimony of $6000 per month for twenty-four months and $4000 per month for an additional nine years. See General Statutes § 46b-86 (a). In addition, the defendant was ordered to pay to the plaintiff $480 per week to support the children until they reach nineteen years of age or graduate sooner from high school. Furthermore, in calculating the plaintiffs award, the court excluded any evidence regarding the postmajority expenses of the two children.

On appeal, the plaintiff claims that the alimony award of $72,000 per year for two years and $48,000 per year for the remaining nine years is inadequate in view of the plaintiffs needs and the defendant’s probable earnings at his new employment, $170,000 in annual salary plus a target bonus of $42,500. She focuses on one of the factors, “station,” which General Statutes § 46b-82 requires the court to consider in making an alimony award. She maintains that the inclusion of “station,” as one of the statutory criteria for an alimony award, refers to the lifestyle or standard of living of the parties during the marriage, including their commensurate expectations for the education and advancement of their children. Relying on that interpretation, she challenges the court’s ruling excluding any evidence of the postmajority expenses of the two children.

Agreements between parties regarding the postmajority education of children are required to be in writing. General Statutes § 46b-66; Hirtle v. Hirtle, 217 Conn. 394, 399, 586 A.2d 578 (1991). Furthermore, in Lowe v. Lowe, 47 Conn. App. 354, 704 A.2d 236 (1997), this court reversed that part of the trial court’s judgment that enforced an oral stipulation by the father during trial that he would pay for the postmajority education of his three children to the extent that he was financially able to do so. Section 46b-66 provides, with respect to agreements for support of children after reaching eighteen years of age, as follows: “If the agreement is in writing and provides for the care, education, maintenance or support of a child beyond the age of eighteen, it may also be incorporated or otherwise made a part of any such order and shall be enforceable to the same extent as any other provision of such order or decree, notwithstanding the provisions of section 1-ld.” In the present case, there never was any written agreement in which the defendant agreed to pay the education expenses of his two children, nor was there such an oral agreement. The court, therefore, properly excluded evidence of the postmajority expenses of the children. The excluded evidence was irrelevant to any issue before the court.

The judgment is affirmed.

In this opinion the other judges concurred.

       The case proceeded on the cross complaint

       The parties stipulated that they shall have joint legal custody of their two children, twin boys born on January 14, 1981.

       The court found that the value of the equity in the marital residence was $207,609. Prior to commencement of trial, the defendant transferred his undivided one-half interest in the residence to the plaintiff.

         The court found that the primary cause of the breakdown in the marriage was the defendant’s three extramarital affairs.

       That job required him to commute from Westport to New Jersey.

       The provisions of General Statutes § 46b-86, modification of alimony or support orders and judgments, apply to this order.

       The defendant was ordered to provide medical coverage for the minor children so long as he is obliged to pay child support. The court also adjudged that uninsured bill balances and deductibles shall be shared equally by the parents.

       General Statutes § 46b-81 (a) provides: “At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the Superior Court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.”

       Furthermore, in her brief, the plaintiff does not argue that the court improperly found that the stock options were awarded for future services. She simply claims thstBomemann should not have been applied in this case.

       Both parties had agreed that the plaintiff would not work while the children were growing up.

       Also, the plaintiffs commitment to raising the twins was to end when they graduate high school, presumably in June, 1999. By that time, the children would be eighteen, having attained such age on January 14, 1999. Pursuant to General Statutes § 46b-215 (a), they lost their status as minors on January 14,1999, and their parents had no statutory obligation to support them after that date.

       The alimony order was made subject to earlier termination if the plaintiff remarries, either party dies or if ordered by a court.

       General Statutes § 46b-82 provides: “At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”


text:
    LANNELL REED EMMERSON v. SUPER 8 MOTEL-STAMFORD ET AL.
    (AC 19724)
    Lavery, C. J., and Mihalakos and Zarella, Js.

      Submitted on briefs June 14
    officially released August 22, 2000

      Lannell Reed Emmerson, pro se, the appellant (plaintiff), filed a brief.

      Stuart G. Blackburn filed a brief for the appellees (defendants).
   Opinion

ZARELLA, J.

The plaintiff, Lannell Reed Emmerson, appeals from the judgment of the trial court rendered on the granting of the defendants motion for summary judgment. The plaintiff claims that the trial court’s granting of the motion was (1) improper because genuine issues of material fact existed and (2) premature as the pleadings were not closed prior to the filing of the summary judgment motion. We affirm the judgment in part and reverse it in part.

The following facts and procedural history are necessary to our disposition of this appeal. In his complaint, the plaintiff alleged that on November 12, 1997, he was a paying guest at the defendant Super 8 Motel-Stamford. On that date, the plaintiff claimed that he delivered his automobile, attached trailer and personal property to the motel. The plaintiff claimed that on that day he asked the employees of the motel to provide a safe place for his vehicle and its belongings, which they agreed to do. The plaintiff moved the vehicle to the location in the parking lot as directed. The plaintiff additionally alleged that the defendants negligently failed to deliver the property back to the plaintiff.

In the second count of his complaint, the plaintiff alleged that as a result of the defendants’ failure to protect his car against criminal activity, his car was broken into and $36,000 was stolen from the glove compartment. The third count makes additional allegations of negligence with respect to the inadequacy of the lighting, and the fourth count alleges that the defendant negligently failed to render aid to the plaintiff.

The defendants filed a motion for summary judgment claiming that they had satisfied their obligations to the plaintiff pursuant to General Statutes § 44-1 and therefore were not liable for the plaintiffs loss. The defendants supplied the court with affidavits attesting to the fact that the appropriate notice as required by § 44-1 was posted in the plaintiffs room. Additionally, the defendants supplied the court with pictures of notices posted in the parking lot and motel lobby stating that the motel would not be responsible for “patrons vehicles and/or contents.” The plaintiff provided the court with an affidavit setting forth the allegations contained in his complaint and further averring that he did not see any of the signs or notices. Additionally, the plaintiff attested that Super 8 Motel-Stamford never advised him that there was a safe on the premises or that the notices were posted.

The court granted the defendants’ motion for summary judgment on all counts. The court found that as a matter of law the defendants were protected from liability pursuant to § 44-1 and there was no genuine issue as to any material fact.

“Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Tarzia v. Great Atlantic & Pacific Tea Co., 52 Conn. App. 136, 145, 727 A.2d 219 (1999).

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 693, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998). Because the trial court rendered judgment for the defendants as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. . . . Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995).” (Internal quotation marks omitted.) Kramer v. Petisi, 53 Conn. App. 62, 66-67, 728 A.2d 1097, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999).

I

The plaintiff claims first that the motion for summary judgment was improperly granted because a genuine issue of material fact existed. We are unpersuaded.

“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].” (Citations omitted; internal quotation marks omitted.) Barrett v. Danbury Hospital, 232 Conn. 242, 255, 654 A.2d 748 (1995).

General Statutes § 44-1 shields a hotel or inn that properly has posted notice from liability for the loss or damage to valuables brought to the hotel by a guest unless the guest takes certain steps. These steps include delivery of the valuables to the person in charge of the hotel for safekeeping and obtaining a written receipt for the item. In this case, the plaintiff does not allege in his complaint nor does he set forth in his affidavit that he received any receipt for the valuable items. Thus, the only issue is whether there is any genuine issue of material fact regarding the posting of the notice/ Three affidavits were presented regarding the posting of the notice in the plaintiffs room, each attesting to the fact that the notice was properly posted. The plaintiffs affidavit does not state that the notice was not posted, but rather, only that he did not see it. Whether the plaintiff saw the notice is not a genuine issue of material fact, as the statute does not require that the plaintiff see the notice to afford the hotel or inn the protections of the statute. The plaintiffs affidavit is, therefore, inadequate to raise an issue of material fact.

In his complaint, the plaintiff also alleged that his car was damaged as a result of the defendants’ negligence. The plaintiff claims on appeal that the trial court improperly granted the defendants’ motion for summary judgment in part because § 44-1 does not provide the defendants with immunity for the damage done to his automobile. We agree.

Pursuant to General Statutes § 44-2, a proprietor of a hotel may be held liable for damage to property if such damage is caused by the negligence of the proprietor or any of his employees. Section § 44-2 addresses damage to property “other than the property described in section 44-1 . . . .” Although § 44-1 limits liability for loss of or damage to “any securities, bank notes, money, jewelry, precious stones, watches or other valuables,” damage to an automobile is not governed by § 44-1. Rather, § 44-2, entitled “Loss of other property,” governs the plaintiffs claim for damage to his automobile.

The court, in its memorandum of decision, granted the defendants’ motion for summary judgment because “the defendants are protected from liability pursuant to General Statutes § 44-1.” We conclude that the plaintiffs claim for damage to his automobile is governed by § 44-2, and, therefore, the motion for summary judgment was not properly granted as to that claim.

II

The plaintiff also claims that the motion for summary judgment should not have been acted on because it was premature. Specifically, he claims that because the pleadings were not yet closed, the court should not have taken action on the summary judgment motion. We disagree.

Practice Book § 17-44 provides in relevant part: “In any action, except administrative appeals which are not enumerated in Section 14-7, any party may move for a summary judgment at any time, except that the party must obtain the judicial authority’s permission to file a motion for summary judgment after the case has been assigned for trial. ...” (Emphasis added.) We need only to point out that Practice Book § 17-44 states that a motion for summary judgment may be filed “at any time” prior to assignment for trial.

The judgment is reversed only insofar as it applies to the plaintiffs claim for damages to his automobile, and the case is remanded for further proceedings in accordance with law. In all other respects, the judgment is affirmed.

In this opinion the other judges concurred.

       The defendants in this action are Super 8 Motel-Stamford, Super 8 Northeast, Inc., and Super 8 Motels, Inc.

       General Statutes § 44-1 provides: “The proprietor of a hotel or inn shall not be liable for the loss of or damage to any securities, bank notes, money, jewelry, precious stones, watches or other valuables belonging to, or brought to such hotel or inn by, a guest of such hotel or inn unless such guest has delivered such property to the person in charge of the office of such hotel for safekeeping and taken a written receipt therefor, provided such proprietor shall have posted in the room of such guest or in the office of such hotel or inn a notice to the effect that such proprietor has provided a safe for the keeping of valuables, and such proprietor shall not be liable for more than five hundred dollars damages for the loss of or damage to such property so delivered unless such guest has declared a greater value and such proprietor has given a written receipt stating such value.”

       The statute does not require that hotel personnel tell the guest of the notice or its contents, nor does it require hotel personnel to advise the guest orally that the hotel has a safe. These arguments, as presented by the plaintiff, need not. be further addressed.

       General Statutes § 44-2 provides: “The proprietor of a hotel or inn shall not be liable for the loss of or damage to any property belonging to, or brought to such hotel or inn by, a guest of such hotel or inn other than the property described in section 44-1 and not in the room assigned to such guests unless such loss or damage is caused by the negligence of such proprietor or any of his employees, and such proprietor shall not be liable for more than one thousand dollars damages for any loss or damage so caused, provided, if any such property is deposited in the checkroom or baggage room of any such hotel or inn and a check or written receipt taken therefor, the proprietor of such hotel or inn shall be liable for the loss of or damage to such property to the extent of three hundred and fifty dollars, and provided such proprietor shall not be liable for more than one thousand dollars damages for the loss of property from the room assigned to such guest.”