author: DUPONT, J.

text:
    STATE OF CONNECTICUT v. KEVIN J. MCCOLL
    (AC 20624)
    Mihalakos, Flynn and Dupont, Js.

      Argued September 17, 2002
    officially released January 21, 2003

      Kent Drager, senior assistant public defender, with whom, on the brief, were Stephen J. Sczurek and Sheri Jones, certified legal interns, for the appellant (defendant).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Eva B. Lenczewski, senior assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

The defendant, Kevin J. McColl, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), assault of a victim sixty years of age or older in the second degree in violation of General Statutes § 53a-60b (a), and two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). On appeal, the defendant claims that (1) the evidence was insufficient to sustain his conviction on the assault and robbery counts, (2) the court improperly instructed the jury on “feet and footwear” as a dangerous instrument, (3) the court improperly denied his motion to suppress his confession as the fruit of an illegal entry or as involuntary, (4) the court improperly instructed the jury on intent when the crimes charged were specific intent crimes and (5) the constitutional prohibition against double jeopardy was violated when he was sentenced on two counts of robbery.

The jury reasonably could have found the following facts. The victims, Norman Lezotte, bom August 18, 1927, and his wife, Patricia Lezotte, lived in the third floor apartment of a three-family house in Waterbury. On the evening of March 21, 1999, the two went to bed at around 11:30 p.m. At approximately 1:30 a.m. on March 22, 1999, a banging sound from the back of the house, which later proved to be the defendant kicking down the door, awakened them. Norman Lezotte proceeded from the bedroom into the kitchen where he noticed that the rear porch door was open.

Thereafter, the defendant lunged out, grabbing Norman Lezotte by the throat and choking him. Norman Lezotte elbowed the defendant in the stomach and threw two punches at the defendant’s head. The defendant then grabbed Norman Lezotte in a chokehold and threw him to the ground. While Norman Lezotte was on the ground, the defendant, who was wearing sneakers, jumped, with two feet, onto Norman Lezotte’s back and kicked him about a dozen times in the side and back, and twice in the head. In the course of jumping on and kicking Norman Lezotte with his shod feet, the defendant continually threatened: “If you move, I’ll kill you,” “If you get up, I’ll kill you,” and, “Give me the money.” Norman Lezotte answered by telling the defendant that his wallet was on the counter with $11 and to take that. The defendant responded by kicking Norman Lezotte and threatening Patricia Lezotte, who by then was standing in the kitchen doorway. Norman Lezotte told his wife to get the money, and the defendant told her to get the money or he would kill her husband.

Patricia Lezotte, who had heard the defendant kicking her husband and saw the defendant with his foot on Norman Lezotte’s back, pinning him down, then retrieved from the bedroom an envelope containing approximately $1900. The money was the couple’s income tax refund, which had been put aside to pay various household expenses. Patricia Lezotte gave the money to the defendant. The defendant then demanded, “Give me the phone.” Patricia Lezotte obeyed and gave the defendant the telephone. The defendant then demanded that Patricia Lezotte “open the door.” She opened the screen door, which she noticed had a hole in it, and then, with the defendant pushing at her back, she opened the latches on a second door, which led down a stairway and out the back. The defendant then left.

After the defendant left, Norman Lezotte called the police from an apartment on the floor below. Initially, Norman Lezotte declined medical treatment, but later in the morning of March 22,1999, went to the St. Mary’s Hospital emergency room, complaining of pain in his back. His injuries consisted of severe bruising to the right side of his back, a bruise to his right ear, and multiple scratches on his back and neck.

On Friday, March 26,1999, two detectives investigating the crimes at the Lezotte residence went to the home of the defendant and Tracy Fortier, which was next door to the victim’s home. As the detectives approached the house, the defendant instructed Fortier to tell the police that the defendant was at home Sunday night into Monday morning, the time of the crimes. After the detectives left, Fortier, having just lied to them by stating that the defendant was home in the early morning of March 22, questioned him as to why he had instructed her to lie. The defendant responded that he had tried breaking into the Lezotte house to look for money to buy drugs. Upon further inquiry from Fortier, the defendant told her that he had not beaten Norman Lezotte, but only held him down.

On April 1, 1999, believing that the defendant had committed the crimes at the Lezotte residence, Fortier went to the police. Thereafter, Sergeant Eugene Coyle, Detective Nicholas Pesce and three uniformed officers proceeded to Fortier’s and the defendant’s home where they gained his consent to enter. Once inside, Coyle read the defendant his Miranda rights from a pre-printed rights card and asked if he would give the police permission to search the house. The defendant indicated that he knew and understood his rights as they were explained to him. He initialed and signed a consent to search form. Thereafter, the defendant admitted that he was responsible for the burglary, but that he did not have the clothes he wore that night or the money that he stole. He did, however, show the officers the sneakers he was wearing at the time of the crimes.

After being in the home for ten to fifteen minutes, the detectives asked if the defendant would be willing to give a statement at the Waterbury police station. The defendant agreed and Coyle and Pesce transported him, uncuffed, to the station in an unmarked police vehicle. At the police station, the defendant turned over the sneakers, which he had brought from his home, and was placed in an interview room, where Coyle took his statement. Additional facts will be set forth as necessary.

I

DANGEROUS INSTRUMENT CLAIMS

We first discuss the defendant’s claims that there was insufficient evidence to support his conviction of assault of a victim sixty years of age or older in the second degree and of two counts of robbery in the first degree, and that the court’s jury instructions as to his “feet and footwear” as a dangerous instrument were improper.

The defendant did not file a request to charge the jury and did not object to the court’s instructions about his “feet and footwear.” He therefore seeks review of his unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Because the record is adequate for review and the claim of improper jury instructions on an essential element of the crimes charged alleges the violation of a fundamental right, we conclude that the defendant’s claim satisfies the first two prongs of Golding and is reviewable. See State v. Ash, 231 Conn. 484, 493, 651 A.2d 247 (1994). We will, therefore, consider whether the alleged constitutional violation clearly exists and, if so, whether it denied the defendant a fair trial.

“[T]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. ... In determining whether the jury was misled, [i]t is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . The charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict.” (Internal quotation marks omitted.) State v. Amado, 254 Conn. 184, 194, 756 A.2d 274 (2000).

The defendant first argues that the court’s instructions improperly allowed the jury to find that his foot alone, rather than his “feet and footwear” in combination, was a dangerous instrument. He contends that this was error because as a matter of law, a foot or other body part cannot be considered a dangerous instrument. The state contends that the information, the evidence presented, the arguments by counsel, and the jury instructions all made it clear that the jury was to consider whether the “feet and footwear” in the manner used were a dangerous instrument.

The court instructed the jury on the use and definition of a dangerous instrument within the context of the facts of this case three separate times, in connection with counts two, three and four of the information. The court read the information verbatim as to each count. The information, a copy of which the jury had, charged the defendant with the use of “a dangerous instrument, to wit: his feet and footwear . . . .” Additionally, in its instructions, the court told the jury that the state had alleged that the defendant’s “feet and footwear” comprised the dangerous instrument.

On one occasion the court used the disjunctive, “feet or footwear,” rather than the conjunctive, “feet and footwear.” There was no dispute that the defendant was wearing footwear, however, and considering the charge as a whole, we find that it was not reasonably possible that the misstatement, “feet or footwear,” misled the jury to believe that the defendant was barefoot or to consider whether an unshod foot could be a dangerous weapon.

The defendant’s second argument is that the court should have instructed the jury to consider whether his footwear, separate from his foot, was a dangerous instrument. He contends that a “dangerous instrument,” as defined by General Statutes § 53a-3 (7), cannot include a body part because it is not an “instrument, article or substance which, under the circumstances in which it is used ... is capable of causing . . . serious physical injury General Statutes § 53a-3 (7). The state contends that the footwear cannot be separated from the foot because when determining if something is a dangerous instrument under § 53a-3 (7), the question is whether the instrument, that is, the “feet and footwear” of the defendant, as used, was capable of causing serious physical injury.

“Instrument” is not defined in the General Statutes. One dictionary provides that an instrument is “a means whereby something is achieved, performed or furthered.” Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993).

Using that definition, we conclude that an ordinary object may be a dangerous instrument. Therefore, “[ejach case must be individually examined to determine whether, under the circumstances in which the object is used or threatened to be used, it has the potential for causing serious physical injury.” (Internal quotation marks omitted.) State v. Barnett, 53 Conn. App. 581, 590, 734 A.2d 991, cert. denied, 250 Conn. 918, 738 A.2d 659 (1999). The question of whether in the given circumstances a particular object was used as a dangerous instrument is a question of fact for the jury. State v. Mercer, 29 Conn. App. 679, 682-83, 617 A.2d 916 (1992), cert. denied, 225 Conn. 902, 621 A.2d 285 (1993); see, e.g., State v. Sawicki, 173 Conn. 389, 392-94, 377 A.2d 1103 (1977) (state permitted to present testimony that defendant’s shod foot was dangerous instrument); State v. McFadden, 25 Conn. App. 171, 173-75, 593 A.2d 979 (jury allowed to consider whether shod foot, fist, cement floor or combination of any was used as dangerous instrument under facts of case), cert. denied, 220 Conn. 906, 593 A.2d 972 (1991); State v. Johnson, 14 Conn. App. 586, 597, 543 A.2d 740 (“jury could reasonably have concluded that the defendant’s act of kicking the victim with his shod foot was, under the circumstances, the use of a deadly instrument”), cert. denied, 209 Conn. 804, 548 A.2d 440 (1988).

We conclude that “feet and footwear” can be a dangerous instrument in some circumstances. As the court properly instructed, the question of whether the defendant’s “feet and footwear” were a dangerous instrument is a question for the jury’s consideration under the given circumstances.

Having concluded that “feet and footwear” can be a dangerous instrument in some circumstances, and that the court’s instructions on “feet and footwear” were not improper, we next consider whether the evidence in this case was sufficient to allow a jury to so conclude.

“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 [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Green, 261 Conn. 653, 667, 804 A.2d 810 (2002).

The defendant claims that the evidence was insufficient to support his conviction of assault of a victim sixty years of age or older in the second degree and of two counts of robbery in the first degree. Although each of those crimes has several elements, the defendant challenges the sufficiency of the evidence only as it relates to the dangerous instrument elements of those crimes. First, with respect to both counts of robbery, he argues that the evidence was insufficient to find that a dangerous instrument was used. He further argues with respect to these counts that the evidence was insufficient to show that his threats related to the use of a dangerous instrument. Last, regarding the assault count, he argues that the evidence was insufficient to prove that the dangerous instrument caused the injuries to Norman Lezotte.

The evidence adduced at trial reveals that during the break-in at the Lezotte residence, the defendant, who was wearing sneakers at all times, repeatedly kicked Norman Lezotte in the head and back. The defendant at the time was five feet, eleven inches tall, weighing 195 pounds. The victim was a seventy-one year old man with a heart condition.

Peter Jacoby, a physician, testified that the area that the defendant continually kicked contains several vital organs, including the lungs and kidneys. He further testified that repeated kicks to those organs could cause serious internal injuries, which could result in death, especially of an older victim. He testified that any increased weight on the foot, including a sneaker, would have increased the force that the defendant inflicted on the victim’s midsection.

Additionally, the evidence showed that the defendant at all times either was kicking the victim or had his foot on the victim to prevent him from getting up or fighting back. When the defendant demanded money from Norman Lezotte and he did not comply, the defendant kicked him. Last, when the defendant threatened the Lezottes and demanded money from Patricia Lez-otte, who had heard the defendant kicking her husband, the defendant had his foot on Norman Lezotte’s back.

From that evidence, the jury reasonably could have found that the defendant’s “feet and footwear” were a dangerous instrument because under the circumstances in which they were used or attempted or threatened to be used, the repeated kicking of the victim in the midsection rendered the defendant’s “feet and footwear” capable of causing death or serious physical injury. The jury reasonably could have found that the “feet and footwear” were a dangerous instrument in the manner in which they were used because of the size of the defendant, the age and health condition of the victim, the location of the kicking, and the number and force of the kicks, which was intensified by the weight of the footwear.

Additionally, for the purpose of the robbery counts, because the defendant continually used his “feet and footwear” to restrain, incapacitate and kick Norman Lezotte in an attempt to take the Lezottes’ money, it was reasonable for the jury to find that the defendant had used or threatened the use of a dangerous instrument while in the course of a larceny. Further, in relation to the assault count, it was reasonable for the jury to find that the defendant had used a dangerous instrument, his “feet and footwear,” to cause physical injury to the victim.

We therefore conclude that the evidence was sufficient to find the defendant guilty of the assault count and the two robbery counts.

II

MOTION TO SUPRESS THE CONFESSION

The defendant next claims that the court improperly denied his motion to suppress his confession. Specifically, the defendant argues that the confession was the fruit of an illegal and warrantless entry into his home and that it was involuntary. We disagree.

A

Validity of Police Officer’s Entry

The defendant argues that the police unlawfully entered his home in violation of article first, § 8, of the constitution of Connecticut and the fourth amendment to the United States constitution. We initially note that the defendant does not dispute the court’s factual findings. Instead, he argues that such findings do not give rise to a finding of voluntary consent to enter his dwelling and, therefore, that any evidence obtained subsequent to the officers’ entry should have been suppressed.

In its memorandum of decision on the defendant’s motion to suppress, the court found the following relevant facts related to the voluntariness of the defendant’s consent. On April 1, 1999, Fortier went to the police station and informed the police that she believed the defendant was responsible for the burglary at the Lez-otte residence. The police indicated that they were going to search for the defendant.

Later that same morning, Coyle, Pesce and a uniformed officer knocked on the side door of the defendant’s home. When the defendant opened the door, it appeared to the officers that the defendant had just gotten out of bed, but there was no indication that he was under the influence of any drugs or alcohol. Coyle informed the defendant that the police were investigating a burglary. The defendant turned back into the house, and the detectives followed him, stepping into the kitchen. The defendant never objected to the police entry or presence in his home and was fully cooperative thereafter. On the basis of those facts and the testimony of the officers, the court concluded that the entry was consensual.

“The touchstone of the Fourth Amendment is reasonableness. . . . The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable.” (Citation omitted.) Florida v. Jimeno, 500 U.S. 248, 250, 111 S. Ct. 1801, 114 L. Ed. 2d 297 (1991). Searches and seizures inside a home without a warrant are presumptively unreasonable. Paylon v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). However, “[i]t is . . . well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). Therefore, a “warrantless search or entry into a house is not unreasonable . . . under the fourth amendment to the United States constitution . . . when a person with authority to do so has freely consented.” (Internal quotation marks omitted.) State v. Martinez, 49 Conn. App. 738, 743, 718 A.2d 22, cert. denied, 247 Conn. 934, 719 A.2d 1175 (1998); see also State v. Wragg, 61 Conn. App. 394, 401, 764 A.2d 216 (2001).

“To ascertain whether consent is valid, courts examine the totality of all the circumstances to determine whether the consent was [the] product of that individual’s free and unconstrained choice, rather than a mere acquiescence in a show of authority.” (Internal quotation marks omitted.) United States v. Garcia, 56 F.3d 418, 422 (2d Cir. 1995). “The voluntariness of the consent is . . . decided by the trial court based on the evidence it deems credible along with the reasonable inferences that can be drawn therefrom.” (Internal quotation marks omitted.) State v. Martinez, supra, 49 Conn. App. 743. “Voluntariness may not be established simply by a showing of acquiescence to apolice officer’s order to allow entry; such consent, however, need not be expressed in a particular form but can be found from an individual's words, acts or conduct.” (Internal quotation marks omitted.) United States v. Deutsch, 987 F.2d 878, 883 (2d Cir. 1993). “The ultimate question is whether the will of the consenting individual was overborne . . . .” (Internal quotation marks omitted.) State v. Martinez, supra, 743.

An examination of other cases bolsters our conclusion that the motion to suppress was denied properly. This court in State v. Boyd, 57 Conn. App. 176, 182, 749 A.2d 637, cert. denied, 253 Conn. 912, 754 A.2d 162 (2000), upheld a finding of consent because the defendant through words, acts and conduct revealed that his consent was freely given. In Boyd, an officer approached the defendant’s apartment door with his gun drawn, and the defendant, who had been involved with the system previously, opened the door without the officer’s knocking. Id., 178-79. The defendant was extremely polite and cooperative, knew why the police were there, and invited them in after they explained their purpose and asked to look around. Id., 182. This court concluded that throughout the time the police were present, the defendant had provided consent on repeated occasions, and there were no signs of coercion or duress. Id.

In State v. Cardona, 6 Conn. App. 124, 132, 504 A.2d 1061 (1986), this court upheld a finding of consent where four officers had knocked on the door of a house in which the defendant was present, a woman answered and, while opening the door wider, gestured toward the upstairs when the police inquired as to the whereabouts of the defendant. The court noted that there was no objection or any indication of coercion. Id., 134-35; see also United States v. Turbyfill, 525 F.2d 57, 59 (8th Cir. 1975) (consent found where officers rang doorbell, defendant answered by opening inside door, officers identified selves, defendant stepped back allowing officers to open screen door, enter).

The defendant asserts that the present case parallels United States v. Shaibu, 920 F.2d 1423 (9th Cir. 1990), rather than the previously discussed cases. We disagree. The Shaibu court held that the state cannot show consent to enter merely from the defendant’s failure to object. Id., 1428. Shaibu, however, is factually distinguishable from this case. In Shaibu, the officers initially rang the bell and did not respond to the defendant’s asking who was there. Id., 1424. After the defendant buzzed the officers in, he made a point to step out of and away from his apartment to meet the officers in the hallway. Id. Upon an officer identifying himself, the defendant walked back into the apartment where the officers followed through an open door. Id. The United States Court of Appeals for the Ninth Circuit, specifically noting the failure of the police to request to enter, determined that the defendant’s failure to object was a submission to authority rather than voluntary consent. Id., 1427-28.

Contrary to the facts in Shaibu, in this case, the defendant’s conduct was not a submission to authority, and his failure to object was not the only fact underlying the court’s finding of consent. Specifically, in contrast to Shaibu, the defendant did not meet the officers outside his house. Second, unlike the officers in Shaibu, the officers in this case identified the reasons for their presence, stated that they wanted to talk to the defendant and requested entry. Therefore, because of the defendant’s knowledge and understanding of the situation and what the police wanted, when he walked from the door and allowed the officers entry, it was an affirmative action indicating his consent to the entry. In Shaibu, however, the only affirmative action by the defendant was his walking away from the officers upon their identifying themselves.

Following a full hearing on the defendant’s motion to suppress, the court concluded that the defendant had consented to the police entry because “[t]he credible facts established that the defendant allowed the officers in without any complaint and full cooperation.” The court found that the defendant’s will was not overborne and his consent was a product of his unconstrained choice. We agree with the court’s findings.

The question of whether a defendant has given voluntary consent to enter premises is a question of fact for the trial court upon consideration of the totality of the circumstances surrounding the entry. State v. Ortiz, 17 Conn. App. 102, 103, 550 A.2d 22, cert. denied, 209 Conn. 828, 552 A.2d 1216 (1988). Given the findings in this case, as previously recited, and with which the defendant does not disagree, we agree with the court. Any evidence obtained as a result of the entry into the defendant’s home was not the fruit of an illegal entry and, thus, was admitted properly.

B

Voluntariness of the Defendant’s Confession

The defendant argues that his confession given at the police station was involuntary because Coyle promised him a drug treatment program instead of jail if he cooperated. The court found that the defendant’s confession was voluntary.

The following facts are relevant to the court’s conclusion. After the officers brought the defendant to the police station, Coyle read him his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), for the second time. The defendant proceeded to recount what had occurred in the early morning of March 22, 1999. Coyle typed the statement on a computer screen, which the defendant was able to read as Coyle typed. Coyle had the defendant read out loud the first paragraph to verify that he could read. The defendant did not make any changes while Coyle typed. After finishing, Coyle printed the statement on a voluntary statement form. The defendant read the statement, made no changes, read aloud and initialed the Miranda warnings on the top of the form and, under oath, signed the bottom of the statement.

“[T]he use of an involuntary confession in a criminal trial is a violation of due process. . . . The state has the burden of proving the voluntariness of the confession by a fair preponderance of the evidence.” (Citations omitted; internal quotation marks omitted.) State v. Pinder, 250 Conn. 385, 418, 736 A.2d 857 (1999). “[T]he test of voluntariness is whether an examination of all the circumstances discloses that the conduct of law enforcement officials was such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined.” (Internal quotation marks omitted.) Id. The ultimate question is whether the confession is the product of an essentially free and unconstrained choice. Id. “If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.” (Internal quotation marks omitted.) Id., 418-19.

Initially, the trial court determines whether a statement is voluntary by considering the circumstances surrounding the making of the statement. Id., 419. Factors the court considers include the age, education and intelligence of the accused, whether any advice was given as to constitutional rights, the length of detention, whether the questioning was repeated and prolonged, and whether any physical punishment was used. State v. Smith, 65 Conn. App. 126, 142, 782 A.2d 175, cert. granted on other grounds, 258 Conn. 930, 783 A.2d 1032 (2001). “[F]indings as to the circumstances surrounding the defendant’s interrogation and confession are findings of fact . . . which will not be overturned unless they are clearly erroneous.” (Internal quotation marks omitted.) Id., 141. We, however, make a scrupulous examination and “conduct a plenary review of the record in order to make an independent determination of voluntariness.” State v. Pinder, supra, 250 Conn. 421; see also State v. Hafford, 252 Conn. 274, 299, 746 A.2d 150, cert. denied, 531 U.S. 855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000); State v. Smith, supra, 142.

In this case, after a hearing on the defendant’s motion to suppress, the court found that the defendant was twenty-nine years old, had a high school education, spoke and wrote English, and did not show any signs of physical impairment due to the influence of alcohol or drugs. He was advised of his constitutional rights twice before making his written statement. The defendant appeared to have understood his rights. The defendant gave a signed and sworn statement. Within the statement, he initialed that he had been advised of and had understood the Miranda warnings; he also initialed that he was giving the statement “freely and voluntarily without any threats or promises.” The detention of the defendant lasted at most one and one-half hours. Further, the court found that the defendant had given his statement so that he could benefit from a drug treatment program and that he did not testify that he had been subjected to any police pressure. Those facts are amply supported by the record and are not clearly erroneous.

Therefore, except for the alleged promise made by Coyle, the record shows, and the defendant does not dispute, that the confession was freely and voluntarily given. The defendant argues, however, that the court’s finding that he had given his statement “for the benefit of obtaining a drug [treatment] program” demonstrates an improper promise by Coyle, which thus rendered the statement involuntary.

In some cases, a promise of leniency may affect the vohmtariness of a confession. However, “[a] confession, otherwise freely and voluntarily made, is not vitiated by a promise of leniency unless such promise was the motivating cause of the confession.” (Internal quotation marks omitted.) State v. Janice, 20 Conn. App. 212, 217, 565 A.2d 553, cert. denied, 213 Conn. 811, 568 A.2d 795 (1989).

In regard to the alleged promise made by Coyle, the defendant testified that Coyle offered to get him into a drug treatment program instead of jail if he cooperated. Coyle testified that the defendant indicated his interest in a drug program, but that he made no promises and, in fact, told the defendant that he was unable to get him into a program. The record also discloses that the defendant signed a voluntary statement in which he initialed that he was making the statement without any promises having been made to or threats made against him.

The court heard and evaluated the evidence. In its memorandum of decision, the court found that the defendant’s motivation for making the statement was his desire to obtain drug treatment. Thus, it did not find the defendant’s testimony regarding Coyle’s alleged promise credible. This finding is supported by Coyle’s testimony regarding the defendant’s interest in a program. We agree that the motivating factor for the defendant’s cooperation was the defendant’s wish, rather than Coyle’s promise, that the defendant would get into a drug treatment program. That subjective belief does not make his confession involuntary. See, e.g., State v. Rodriguez, 56 Conn. App. 117, 119-22, 741 A.2d 326 (1999), cert. denied, 252 Conn. 926, 746 A.2d 791 (2000). Having scrupulously examined the record, we conclude that the defendant’s confession was voluntarily given.

Ill

DOUBLE JEOPARDY CLAIM

The defendant’s next claim is that his conviction of two counts of robbery in the first degree under § 53a-134 (a) (3), which incorporates § 53a-133 (1) and (2), violated the constitutional prohibition against double jeopardy. We disagree.

“The double jeopardy clause of the fifth amendment to the United States constitution provides: ‘[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .’ This constitutional provision is applicable to the states through the due process clause of the fourteenth amendment. . . . The Connecticut constitution provides coextensive protection, with the federal constitution, against double jeopardy. . . . This constitutional guarantee . . . protects against multiple punishments for the same offense [in a single trial].” (Citations omitted). State v. Ferguson, 260 Conn. 339, 360-61, 796 A.2d 1118 (2002).

In the context of a single trial, the double jeopardy analysis is a two part process. Id., 361. “First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense.” Id.

“[T]he role of the constitutional guarantee [against double jeopardy] is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.” (Internal quotation marks omitted.) Id. “The issue, though essentially constitutional, becomes one of statutory construction. State v. Rawls, 198 Conn. 111, 120, 502 A.2d 374 (1985); State v. Madera, 198 Conn. 92, 109, 503 A.2d 136 (1985).” (Internal quotation marks omitted.) State v. Greco, 216 Conn. 282, 290, 579 A.2d 84 (1990).

“The traditional approach to analyzing whether two offenses constitute the same offense was set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).” (Internal quotation marks omitted.) State v. Greco, supra, 216 Conn. 291. Our Supreme Court, however, has decided that “when a defendant is convicted of multiple violations of the same statutory provision,” rather than Blockburger analysis, “[t]he proper double jeopardy inquiry ... is whether the legislature intended to punish the individual acts separately or to punish only the course of action which they constitute.” (Internal quotation marks omitted.) State v. Miranda, 260 Conn. 93, 121, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002); State v. Garvin, 242 Conn. 296, 304, 699 A.2d 921 (1997).

It is clear in this case that the offenses the defendant was convicted of arose out of the same transaction and occurrence. Under relevant law, therefore, to determine whether the two offenses are the same offense for double jeopardy purposes, we must decide whether the two offenses charged are distinct statutory provisions, requiring Blockburger analysis, or the same statutory provision, requiring legislative intent analysis.

With respect to that issue, the defendant argues that the statutory provisions charged are conceptually indistinct and, therefore, Blockburger analysis is not required, but instead, legislative intent analysis is necessary. On the contrary, the state argues that § 53a-133 (1) and (2) are distinct statutory provisions and Blockburger analysis is all that is required. We agree with the state.

In the information the state charged the defendant with having violated § 53a-134 (a) (3) in that the defendant, “in the course of committing a larceny, used and threatened the immediate use of physical force upon NORMAN LEZOTTE ... for the purpose of preventing and overcoming resistance on the part of NORMAN LEZOTTE to the taking of a sum of [United States] currency and a telephone.” It further charged the defendant with having violated § 53a-134 (a) (3) in that the defendant, “in the course of committing a larceny, used and threatened the immediate use of physical force upon NORMAN LEZOTTE . . . for the purpose of compelling PATRICIA LEZOTTE to deliver up a sum of [United States] currency and a telephone and to unlock a door in order to effectuate his escape from the scene. ”

The information, in separate counts, accurately tracked subdivisions (1) and (2) of § 53a-133, which provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

The cases on which the defendant relies for the proposition that those two statutory subdivisions are “conceptually indistinct” are distinguishable. See, e.g., State v. Scott, 20 Conn. App. 513, 568 A.2d 1048, cert. denied, 214 Conn. 802, 573 A.2d 316 (1990); State v. Horne, 19 Conn. App. 111, 562 A.2d 43 (1989), rev’d on other grounds, 215 Conn. 538, 577 A.2d 694 (1990); State v. Webb, 8 Conn. App. 620, 514 A.2d 345 (1986). First, in each case, the questions before the court related to the court’s instructions. The questions were, whether, when only one count of § 53a-133 is charged, the court properly instructed the jury and whether, when both subdivisions (1) and (2) are charged, a unanimity instruction is required. Second, each case involved only a threat or use of force against one victim. Third, the factual scenarios in each case were different.

For example, in State v. Scott, supra, 20 Conn. App. 518-19, the court held that it was not improper to charge under both subdivisions (1) and (2) because the act of dragging a woman as she was holding the strap of her purse to take the purse away could have satisfied both subdivision (1), overcoming resistance to the taking or the retention of the property, and subdivision (2), compelling the owner to deliver up the property. Under those facts, the states of mind of the defendant were not conceptually distinct. In State v. Horne, supra, 19 Conn. App. 134-37, in which the defendant did not actually compel the victim to deliver up property, it was not error to instruct on both subdivisions because the subdivisions implicate the defendant’s purpose rather than what actually happened, and the jury reasonably could have found the defendant’s purpose to meet both subdivisions (1) and (2). See also State v. Webb, supra, 8 Conn. App. 626 (court held that jury charge on both subdivisions [1], [2] proper where statement of essential facts could have implicated either subdivision).

In the present case, unlike the cases cited by the defendant, the facts were such that the statutory provisions charged were conceptually distinct. In a separate trial for the robbery of Norman Lezotte, the court could not have instructed, and the state could not have accurately charged, under subdivision (2) because he was not compelled to deliver up any property or to aid in the commission of the larceny. On the other hand, in a separate trial for the robbery of Patricia Lezotte, subdivision (1) could not have been charged because physical force was not used on her at all.

Having found that the offenses charged as they apply to this case are not the same statutory provision for double jeopardy purposes, we analyze the defendant’s claim under Blockburger. “ [U]nder the Blockburger test, a defendant may be convicted of two offenses arising out of the same criminal incident if each crime contains an element not found in the other.” (Internal quotation marks omitted.) State v. Woodson, 227 Conn. 1, 10, 629 A.2d 386 (1993). The term element “means any fact that the legislature has deemed essential to the commission of the crime.” Id.

For example, in State v. Tweedy, 219 Conn. 489, 594 A.2d 906 (1991), the defendant was charged with and convicted of two counts of kidnapping in the first degree after he forced his way into the victim’s apartment, demanded money, followed her into her bedroom, received money from her, took a camera, commanded her to undress and to sit on her bed, took jewelry, sexually assaulted her and thereafter ordered her at gunpoint to an automated teller machine to make a withdrawal to give to him.

The court reasoned that under those facts, there was no double jeopardy violation on the conviction of two counts of kidnapping under General Statutes § 53a-92 (a) (2) (A) and (B) because they were separate offenses. State v. Tweedy, supra, 219 Conn. 496. In one count, under subdivision (A), the state had to prove that the defendant abducted the victim with the specific intent to violate or to abuse her sexually. Id. In the other count, under subdivision (B), the state had to prove that the defendant abducted the victim with the specific intent to achieve the felonious objective of robbery. Id.; see also State v. Woodson, supra, 227 Conn. 9 (defendant charged with, convicted of, two counts of arson in first degree under General Statutes § 53a-lll (a) (3), (4) after setting fire to building; applying Blockburger, court found no double jeopardy violation because for one count, state had to prove defendant started or caused explosion for purpose of collecting insurance proceeds, and for other count, state had to prove that at scene of fire or explosion, peace officer or firefighter subj ected to substantial risk of bodily injuiy).

In this case, for each of the offenses, the state had to prove a different purpose. In the third count, for the robbery of Norman Lezotte, under subdivision (1), the state was required to prove that the defendant’s “purpose” in using force on him was to overcome his resistance to the taking of the property or to the retention thereof immediately after the taking. In the third count, for the robbery of Patricia Lezotte, under subdivision (2), the state was required to prove that the force used on another, Norman Lezotte, was for the purpose of compelling the owner of the property or another, Patricia Lezotte, to deliver up the property. Those two elements are different and had to be separately proved for each offense. The proof of each purpose was essential to proving the commission of the crimes under both subdivisions (1) and (2). Therefore, because each statutory provision contains an element that the other does not, they are not the same offense under Blockburger. The defendant’s double jeopardy protection was not violated.

Although we have concluded that Blockburger is the proper test and that under Blockburger, double jeopardy was not violated, because the ultimate question in double jeopardy analysis is legislative intent, we briefly comment. See Blockburger v. United States, supra, 284 U.S. 303. The defendant argues that in enacting § 53a-133, the legislature intended only as many robberies as there are larcenies by force. Therefore, he contends that because there was only one larceny by force, against Patricia Lezotte, only one conviction of robbery can stand. As to legislative intent, the state argues that because robbery is a crime against the person and because there were multiple victims in this case, the legislature intended multiple punishments. We agree with the state.

“A fundamental purpose of the criminal law is to protect individual citizens from the criminal conduct of another. People are neither fungible nor amorphous. Where crimes against persons are involved, a separate interest of society has been invaded for each violation. Therefore when two or more persons are the victims of a single episode there are as many offenses as there are victims.” (Internal quotation marks omitted.) State v. Lytell, 206 Conn. 657, 666, 539 A.2d 133 (1988); State v. Ingram, 43 Conn. App. 801, 818-19, 687 A.2d 1279 (1996), cert. denied, 240 Conn. 908, 689 A.2d 472 (1997).

Although the defendant is correct in arguing that robbeiy is a larceny by force, he fails to recognize that our robbery statutes aim at the force or threat of force used and where, as here, there are two victims of force, there are two robberies. The robbery statutes “clearly [evince] a legislative intent that robbeiy is a person and victim oriented crime and, thus, is of a higher order than a crime against property . . . .” State v. Ingram, supra, 43 Conn. App. 819. “[T]he distinguishing characteristic of [robbery] is the intimidation of the victim. State v. Gaines, 196 Conn. 395, 400, 493 A.2d 209 (1985) . . . .” (Internal quotation marks omitted.) State v. Ingram, supra, 820-21. “As concerns § 53a-133, the singular term another person has been construed to evince the legislative purpose that a spatially indistinct robbery of two individuals be punishable as two separate offenses of robbery.” (Internal quotation marks omitted.) Id., 821.

A distinction in this case, not recognized by the defendant is that subdivision (2) allows an individual to be the victim of a robbery without having been personally subject to a threat or to the use of force at all. In this case, Patricia Lezotte was the victim of a robbery because one of the defendant’s purposes in using force on her husband was to compel her to give up property and to open the door latches for him to leave. That intimidation of the victim is one of the targets of the robbery statute. The defendant’s other purpose in using force was to make Norman Lezotte the victim of a robbeiy by preventing his resistance to the larceny. Those facts demonstrate two different purposes of the defendant, which resulted in the intimidation of two different victims, Norman Lezotte, who was forced to let the defendant take the property, and Patricia Lezotte, who was forced to give up the property to the defendant. The words of the statute evince the legislative intent to punish those two offenses separately.

“While double jeopardy prohibits multiple punishments for the same offense, distinct repetitions of a prohibited act, however closely they may follow each other . . . may be punished as separate crimes without offending the double jeopardy clause. . . . The same transaction, in other words, may constitute separate and distinct crimes where it is susceptible of separation into parts, each of which in itself constitutes a completed offense. . . . [T]he test is not whether the criminal intent is one and the same and inspiring the whole transaction, but whether separate acts have been committed with the requisite criminal intent and are such as are made punishable by the [statute].” (Internal quotation marks omitted.) State v. Ferguson, supra, 260 Conn. 362-63; see State v. Lytell, supra, 206 Conn. 657 (no violation of double jeopardy for two convictions of, sentences for, robbery in first degree where defendant held up husband, wife at gunpoint while taking property from each); State v. Ingram, supra, 43 Conn. App. 801 (no violation of double jeopardy for three convictions of, sentences for, robbery where defendant held up three bank tellers at gunpoint, took money from each).

Therefore, here, where the defendant used force to prevent Norman Lezotte from resisting the taking of the Lezottes’ money and telephone, and used force to compel Patricia Lezotte to give the money and the telephone, the legislative intent was that both were victims of different crimes, and the defendant should be punished accordingly.

The offenses in this case were not the same offense for double jeopardy purposes and, therefore, the defendant’s claim fails.

IV

JURY INSTRUCTIONS ON INTENT

The defendant claims that the instructions of the court were improper because the jury was allowed to consider, in determining guilt as to all of the crimes with which the defendant was charged, both types of statutory intent as defined in General Statutes § 53a-3 (ll). The defendant argues that it is reasonably possible that the jury was misled by the instruction and relies on State v. DeBarros, 58 Conn. App. 673, 678-84, 755 A.2d 303, cert. denied, 254 Conn. 931, 761 A.2d 756 (2000), in seeking a new trial as to all of the charges against him. The defendant’s argument requires an analysis of § 53a-3 (11) and the statutory elements of the crimes with which he was charged, as well as the DeBarros case.

Section 53a-3 (11) provides that “[a] person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct . . . .” The definition embraces both the specific intent to cause a result and the general intent to engage in conduct described by a statute defining an offense.

The defendant insists that the court’s instructions allowed the jury to find him guilty of all the crimes without finding that he intended to cause the specific result prohibited by the statute, but solely finding instead that he intended to engage in conduct that caused that result. His argument is that because the court’s instruction allowed the jury to find either that he had intended to engage in conduct or intended to cause a specific result, the jurors were misled. He relies on DeBarros for the proposition that an instruction that contains the entire definition of intent as provided in § 53a-3 (11) in cases involving specific intent crimes is improper. He then completes his argument by concluding that the instructions misled the jury and that a new trial is required. The state argues that the improper instruction in DeBarros is unlike that in this case, and that even if the instruction were improper, the jury could not have been misled.

General Statutes § 53a-60 (a) (2), assault in the second degree, in relevant part requires a jury to find beyond a reasonable doubt that a defendant, with intent to cause physical injury to another, causes such injury by means of a dangerous instrument. Section 53a-101 (a) (2), burglary in the first degree requires in relevant part that a defendant, in the coruse of committing the offense of burglary, intentionally inflicts or attempts to inflict bodily harm on anyone. Section 53a-134 (a) (1), robbery in the first degree in relevant part requires that a defendant cause serious physical injury in the coruse of committing a robbery. Section 53a-133 defines robbery as follows: “A person commits robbery when, in the coruse of committing a larceny, he uses or threatens the use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

In every specific intent crime, there must be an intent to cause the particular result prohibited by the criminal statute. See State v. DeBarros, supra, 58 Conn. App. 680-81. Subsumed in the intended result is the intent to engage in the conduct. In other words, as correctly pointed out by the defendant, a jury must find not only that the defendant intended to engage in the particular conduct, but intended the result, that is, the harm that ensued from the conduct. Robbery in the first degree, burglary in the first degree and assault in the second degree all have as an element, the intentional causing of a result, rather than just the intentional engaging in conduct that led to the prohibited result. In this case, for example, the conduct involved in the assault charge was the intentional kicking of the victim, and the result was the physical injury inflicted on the victim by means of a dangerous instrument, the “feet and footwear” of the defendant. The conduct involved in the burglary was entering a building with the intent to commit a crime (larceny), and the taking of property to permanently deprive another of possession (larceny) was the prohibited result. The conduct involved in the robbery was the use of physical force by means of a dangerous instrument, the kicking, and the prohibited result was the commission of the larceny.

State v. DeBarros, supra, 58 Conn. App. 673, involved the crimes of murder, attempt to commit murder and assault in the first degree with a firearm. This court held that a portion of § 53a-3 (11), namely, “[a] person acts ‘intentionally’ . . . when his conscious objective is ... to engage in such conduct,” was inapplicable to the facts of the case. Id., 681-82. The trial court referred to that inapplicable portion seven times in its instructions and, additionally, after a request by the jury for clarification of “intent,” twice repeated the same inapplicable portion. Id., 683. The defendant in DeBarros claimed that because the court read the entire definition, the jury was permitted to find him guilty of the specific intent crimes, namely, assault and murder, without necessarily finding that he had intended to cause the specific results of physical injury and death, respectively. Id., 679.

The court in DeBarros concluded that there was a constitutional violation and that the state had failed to show the harmlessness of the violation beyond a reasonable doubt. Id., 682-84. After reiterating the black letter law maxim that a jury charge is to be read as a whole, without focusing on individual instructions in artificial isolation, the court determined that it was reasonably possible that the jury was misled because the probable effect of the improper charge was that it guided the jury to an incorrect verdict. Id., 682-83. That conclusion rested, in large part, on the fact that the improper instructions were given to the jury at least nine times, counting the subsequent clarification of the instruction. Id., 683. The court also noted that the jury specifically asked for a clarification of the instruction on intent. The DeBarros jury did not have the court’s written instructions in the jury room while deliberating, some portions of which rectified the improper instruction. In the present case, no inquiry was made by the jury as to intent, and the court’s written instructions were given to the jury while it deliberated.

The court’s written instructions, which the jury had, not only contained the entire definition of § 53a-3 (11), but related to the result of the defendant’s conduct. As to the crime of burglary in the first degree, the court made it clear that to find the defendant guilty, the jury had to find that he intended to enter the building, the act, that he intended to commit a crime, larceny, and that he intended to deprive another of property, that he wrongfully took property of the victims, intending to deprive them of ownership, and that he intentionally inflicted bodily harm on Norman Lezotte. The court instructed in relevant part: “In summary, then, if you find [that] the state has proved beyond a reasonable doubt that the defendant intentionally . . . inflicted bodily injury on Norman Lezotte, then the state has proved this element [§ 53a-101 (a) (2)] of the crime of burglary in the first degree. Thus, if you find beyond a reasonable doubt [that] the defendant, one, entered into the apartment unlawfully, and, two, that at the time he entered that apartment, his intent was to commit a crime, the crime of larceny, and, three, in the course of committing the offence, he intentionally . . . inflicted . . . bodily injury on Norman Lezotte, your verdict would be guilty . . . .”

In charging on the crime of assault of a victim sixty years of age or older in the second degree, the court stated that there must be an intent “to physically injure another person.” It also charged that there must be “an intent to cause physical injury . . . and that the defendant must have caused such injury ... by means of a dangerous instrument.”

The court also charged on intent in connection with the crime of robbery in the first degree. The court instructed: “You must find that the state has proven beyond a reasonable doubt . . . that the defendant in the course of committing a larceny . . . used physical force upon another ... for the puipose of preventing or overcoming resistance to the taking of the property.” The court in discussing larceny, elements of which are included in both robbery and burglary in this case, reiterated that the defendant must wrongfully take property with the intention of depriving its possessor or owner of possession.

We conclude that the juiy was not misled and that the entire instruction in this case is more closely akin to those instructions given in State v. Francis, 246 Conn. 339, 358-59, 717 A.2d 696 (1998), State v. Austin, 244 Conn. 226, 232, 710 A.2d 732 (1998), and State v. Prio-leau, 235 Conn. 274, 322, 664 A.2d 743 (1995). In those cases, by giving other proper instructions, the trial courts lessened the risk of jury confusion about the two types of statutory intent in the crimes with which the defendants in those cases were charged.

The instructions as a whole in those cases and in the present case make it clear that the state had to prove beyond a reasonable doubt that the defendant had the intent to cause the specific results involved in the crimes with which he was charged. See State v. Jaynes, 36 Conn. App. 417, 430, 650 A.2d 1261 (1994), cert. denied, 233 Conn. 908, 658 A.2d 980 (1995). The defendant is not entitled to a new trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       The facts related to the defendant’s consent are set forth in part II A, in which we discuss the court’s denial of the defendant’s motion to suppress.

       See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The preprinted card reads: “The constitution requires that I inform you of your rights: You have the right to remain silent. If you talk to any police officer, anything you say can and will be used against you in court.
      “You have a right to consult with a lawyer before you are questioned and may have him with you during questioning.
      “If you cannot afford a lawyer one will be appointed for you, if you wish, before any questioning.
      “If you wish to answer questions, you have the right to stop answering at any time.
      “You may stop answering at any time if you wish to talk to a lawyer, and may have him with you during any further questioning. . . .
      “Do you understand these rights?
      “Are you willing to waive (give up) these rights and answer my questions?”

       The facts surrounding the defendant’s statement are set forth in part II B, in which we discuss the voluntariness of the defendant’s confession.

       Usually, we would first address the defendant’s sufficiency of the evidence claims because if the defendant were to prevail on those claims, he would be entitled to a judgment of acquittal on his conviction of assault of a victim sixty years of age or older in the second degree and of two counts of robbery in the first degree. See State v. Smith, 73 Conn. App. 173, 178, 807 A.2d 500, cert. denied, 262 Conn. 923, 812 A.2d 865 (2002). Because the defendant’s claim of insufficiency of the evidence, however, is intricately bound to his claim that the court’s instructions concerning “feet and footwear” were improper, we will initially discuss the instructions.

       Count two alleges assault of a victim sixty years of age or older in the second degree, and counts three and four allege robbery in the first degree.

       Because the jury was not misled into considering whether the defendant’s foot alone was a dangerous instrument, it is unnecessary, at this point, to address the defendant’s argument that as a matter of law a foot cannot be a dangerous instrument.

       This argument depends on the underlying argument that a foot alone, as a matter of law, cannot be a dangerous instrument. Because the information, the evidence presented and our finding on the previous issue all make it clear that whether the foot alone was a dangerous instrument was never at issue in this case, we view the defendant’s argument as if he were asking us to conclude that, as a matter of law, the feet and footwear could not be a dangerous instrument.

       Under General Statutes § 53a-134 (a) (3), it was necessary that the state prove only that a dangerous instrument was used or threatened to be used. We conclude, however, that the state could have prevailed either as to the use or threat.

       The defendant also claims that his sneakers were the fruit of the same warrantless entry and also should have been suppressed. In light of our conclusion regarding the legality of the entrance into the defendant’s home, it is not necessary to review that claim. Further, the defendant did not raise his claim in the trial court, and the record is not adequate for review under Golding because the court did not make any findings and was not presented with any evidence related to the suppression of the defendant’s sneakers.

       In his principal brief, the defendant invoked both the United States constitution and the constitution of Connecticut. Because he has not provided a separate and distinct analysis of his claim under the state constitution, we address only his federal constitutional claim. See State v. Joyce, 243 Conn. 282, 288 n.6, 705 A.2d 181 (1997), cert. denied, 523 U.S. 1077, 118 S. Ct. 1523, 140 L. Ed. 2d 674 (1998).

       The fourth amendment to the United States constitution provides in relevant part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”

       Coyle testified that prior to the police going to the defendant’s home, the officers searched for him at his son’s school.

       Coyle testified that the defendant personally knew him as a police officer and that the defendant could see the uniformed officer who was accompanying Coyle.

       Coyle testified that he asked the defendant, “Can we come in and talk to you?” to which the defendant responded by allowing the officers to enter.

       Because the entry was valid pursuant to the defendant’s consent, it is not necessary to engage in attenuation analysis pursuant to State v. Geisler,
        222 Conn. 672, 682-83, 610 A.2d 1225 (1992), to determine if the subsequent confession at the police station was tainted.

       At the hearing on the defendant’s motion to suppress, that argument was one of many raised to support his claim of involuntariness.

       The top of the voluntary statement form also contained a clause, which the defendant initialed, indicating that no promises or threats had been made.

       In a footnote in his brief, the defendant contends that even if Blockburger applies, it would not lead to a different result because the subdivisions are conceptually indistinct and, therefore, the same for Blockburger purposes.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 ... he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument . . . .” Therefore it incorporates the disputed statutory provisions at issue, General Statutes § 53a-133 (1) and (2).

       General Statutes § 53a-92 (a) provides in relevant part: “A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually; or (B) accomplish or advance the commission of a felony . . . .”

       See General Statutes § 53a-133 (a) (1) and (2).

       Although the statutory language does not seem specifically to require that there be a dual larceny for two robberies, Norman Lezotte and Patricia Lezotte both had an “ownership” interest in the telephone and the tax return money. Under the larceny statute, ownership merely requires a greater right to possession than that of the taker. Norman Lezotte and Patricia Lezotte both clearly had a greater right of possession to the money and telephone than did the defendant. See General Statutes § 53a-118 (a) (5).

       The claim was unpreserved because no request to charge on intent was filed by the defendant and no objection to the charge was made. It is reviewable under State v. Golding, supra, 213 Conn. 239-40, because the record is adequate for review and the claim is of constitutional magnitude. See State v. Hinton, 227 Conn. 301, 308-309, 630 A.2d 593 (1993).


source: Caselaw Access Project

author: FLYNN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. EVARISTO GONZALEZ, FKA WILLIAM SANCHEZ, FKA FELIX APONTE

    (AC 21597)
    Foti, Dranginis and Flynn, Js.

      Argued October 24, 2002
    officially released January 21, 2003

      David B. Rozwaski, special public defender, for the appellant (defendant).

      Peter D. Fearon, certified legal intern, with whom were Rita M. Shair, senior assistant state’s attorney, and, on the brief, James E. Thomas, state’s attorney, and Victor Carlucci, Jr., senior assistant state’s attorney, for the appellee (state).

       The defendant’s legal identity is Evaristo Gonzalez. He has, nonetheless, used various aliases, including Felix Aponte (see part II). As a condition of probation in this matter, the court ordered that the defendant refrain from using aliases or names other than his birth name in the future. He was prosecuted in this matter under the name William Sanchez.

   Opinion

FLYNN, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics in violation of General Statutes § 21a-279 (a), conspiracy to possess narcotics in violation of General Statutes §§ 53a-48 and 21a-279 (a), possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b), conspiracy to possess narcotics with intent to sell in violation of General Statutes §§ 53a-48 and 21a-278 (b), operating a drug factory in violation of General Statutes § 21a-277 (c), and conspiracy to operate a drug factory in violation of General Statutes §§ 53a-48 and 21a-277 (c). On appeal, the defendant claims that (1) the trial court improperly denied his motions to suppress his inculpatory statements, (2) there was insufficient evidence to support his conviction and (3) the court violated his right against double jeopardy by improperly sentencing him on all three counts of conspiracy. Additionally, the defendant claimed at oral argument, and the state conceded, that the court further violated his right against double jeopardy by improperly sentencing him on both the possession and the possession with intent to sell counts. We affirm in part the judgment of the trial court, but reverse it as to the sentence for multiple conspiracies and for both possession and possession with intent to sell.

The jury reasonably could have found the following facts. On October 13, 1999, Detective Ramon Baez of the vice and narcotics unit of the Hartford police department received information from a confidential informant that the Grand Chalet Hotel in Hartford was being used by a heroin supplier as a supply and packaging outlet. The informant also gave Baez information concerning an automobile driven by Orlando Ortiz, the codefendant in this case. Baez, with the use of an informant, then sought to conduct a “controlled buy” of heroin in room 271 of the hotel. Approximately ten or fifteen minutes after Baez and his partner, Detective Patricia Beaudin, escorted this informant to the hotel, the informant exited the hotel accompanied by Ortiz. The informant told Baez and Beaudin that he had made the buy and turned over nine bags of heroin. Baez later interviewed an employee of the hotel and learned that the room was rented to Felix Aponte of 41 Bond Street, Hartford.

Baez and Beaudin obtained a search warrant for room 271 of the hotel. Baez, Beaudin and two other officers, Sergeant Arvid Leftwich and Detective Anthony Martinez, searched the unoccupied room and found a duffle bag. The duffle bag contained 555 bags of heroin packaged for sale together with an additional twenty-three grams of raw heroin in pellet form, scales, packaging material and other drug paraphernalia. Police also seized from the room quinine and procaine cutting agents, coffee grinders to grind the pure heroin, packaging bags, heat sealing equipment, lactose, mortar and pestle to break down the heroin, strainers to break down the coarser heroin, and various other pieces of drug processing and packaging equipment.

Leftwich and Martinez left the hotel and went to the Bond Street address. On the basis of intelligence information given to them by Baez, they were searching for a short Hispanic male, with a light complexion and a bald head, who went by the name of “Willie.” Leftwich and Martinez soon notified Baez that a suspect, fitting Willie’s description, had been apprehended, and Baez and Beaudin went to the Bond Street address, took the suspect into custody and transported him to the Hartford police department. Once at the police station, Baez learned that the defendant, Willie, also known as William Sanchez, whom he had in custody, and Felix Aponte were one and the same person.

Baez informed the defendant of his Miranda rights by reading aloud the police department’s waiver form. Baez then gave the waiver form to the defendant and instructed him to read and initial the first five lines. Baez testified that he saw the defendant initial the waiver form, but the defendant, then, refused to sign it, stating that he did not want to sign any documents. Although the defendant had placed his initials on the first five lines, he then crossed out his initials on the first two lines and apparently reinitialed them after having crossed them out. Baez testified that he did not notice the defendant cross out his initials on the waiver form. Despite the defendant’s statement that he did not want to sign any documents, the defendant did sign a money receipt for the $338 that was seized from him upon his arrest.

While the defendant was being interviewed, two members of the Hartford police department arrested Ortiz. When searched, Ortiz was in possession of the room key for room 271 of the hotel.

On January 20, 2000, Baez and Beaudin met with Jenny Vosney, a front desk clerk of the hotel, and showed her an array of eight photographs. She identified the defendant’s photograph from that array and stated that he was the person she knew as Felix Aponte, the renter of room 271 from October 10 through October 15, 1999. Vosney also identified the defendant in court.

I

We first address the defendant’s claim that the trial court improperly denied his repeated motions to suppress the statements he made to Baez during his interrogation. The defendant argues that the court should have granted his motion to suppress because he did not voluntarily, knowingly and intelligently waive his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). He contends that the manner in which he was interviewed, alone in a room with Baez and the duffle bag full of narcotics related evidence, created a coercive atmosphere. Specifically, he argues that “the crossing out of his initials on the first two lines [of the waiver form] and his refusal to sign any statement, along with the way in which the [police] interview was conducted, does not satisfy the waiver requirement. As such, his statements should not have been admissible during the course of the trial.” We disagree.

“Pursuant to the fifth and fourteenth amendments to the United States constitution, a statement made by a defendant during custodial interrogation is admissible only upon proof that he . . . waived his rights [under Miranda] .... To be valid, a waiver must be voluntary, knowing and intelligent. . . . The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights. . . . Whether a purported waiver satisfies those requirements is a question of fact that depends on the circumstances of the particular case. . . . Although the issue is therefore ultimately factual, our usual deference to fact-finding by the trial court is qualified, on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence.” (Internal quotation marks omitted.) State v. Williams, 65 Conn. App. 59, 72-73, 782 A.2d 149, cert. denied, 258 Conn. 923, 782 A.2d 1251 (2001).

“Furthermore, [although a] defendant’s express written and oral waiver is strong proof that the waiver is valid”; (internal quotation marks omitted) id., 73; the failure to sign a form or give a written statement does “not necessarily indicate an involuntary waiver.” State v. Whitaker, 215 Conn. 739, 755, 578 A.2d 1031 (1990); see also State v. Shifflett, 199 Conn. 718, 732-34, 508 A.2d 748 (1986) (despite refusal to sign waiver form, voluntary waiver found); State v. Harris, 188 Conn. 574, 578, 452 A.2d 634 (1982) (defendant’s incriminating oral admissions admitted despite refusal to sign written waiver and unwillingness to make written statement), cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983); State v. Derrico, 181 Conn. 151, 154-56, 434 A.2d 356 (defendant, after initial hesitancy to sign waiver form, mutilated it after giving confession), cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980); State v. Frazier, 185 Conn. 211, 220-22, 440 A.2d 916 (1981) (defendant agreed to make oral, but not written statement to police), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982); State v. Pecoraro, 198 Conn. 203, 207-209, 502 A.2d 396 (1985) (waiver implied from defendant’s exercise of right to cut off further questioning).

In this case, the court’s conclusion that the defendant waived his Miranda rights voluntarily, knowingly and intelligently is supported by substantial evidence. Baez testified that he followed standard procedures when obtaining the waiver from the defendant. He asked the defendant if he wished to speak about the investigation, and the defendant answered in the affirmative. Baez read the waiver form to the defendant and went over it with him. Baez also gave the form to the defendant to read himself. The defendant initialed the form, but refused to sign it. Baez signed the form on the witness line. Beaudin was present and witnessed this advisement. Beaudin, however, was not present when Baez questioned the defendant.

Baez showed the defendant the evidence that was seized from room 271 and told him that Ortiz also had been arrested. Initially, the defendant was cooperative. When the defendant realized that he could not negotiate his release with Baez in exchange for information, he refused to be interviewed further. He then was transferred to the booking area.

Although the defendant stresses that he did not sign his name on the signature line of the waiver form, and he crossed out his initials before reinitialing the form on the first two lines, he does not deny that he did, in fact, initial the first five lines of the form. These initials along with the circumstances surrounding the defendant’s statements, are strong proof that the waiver was valid. See id. Additionally, the record is devoid of evidence that Baez or any other officer employed threats, promises or deceptive measures to obtain the defendant’s initials on the waiver form. Rather, the evidence demonstrates that the defendant originally initialed the waiver form and cooperated with the police in an effort to secure his release. Nevertheless, a written waiver is not required. See State v. Whitaker, supra, 215 Conn. 755. When the defendant’s efforts to negotiate his release failed, he refused to cooperate further, and the interview was concluded. Accordingly, we reject the defendant’s claim and conclude that the court properly determined that he knowingly, intelligently and voluntarily waived his Miranda rights.

The second part of the defendant’s claim alleges that his statements to Baez should not have been admitted because his interview was conducted in a coercive atmosphere. Specifically, the defendant argues that “[t]o have an interrogation in a police station [one-on-one] with apile of evidence and the threat of significant exposure creates a coercive atmosphere.” We find no merit to the defendant’s claim.

The evidence demonstrated that the defendant voluntarily discussed with Baez the evidence seized from the hotel. Initially, he was cooperative. He told Baez that he was a bigger dealer than Ortiz and that he could get much more heroin than was seized. He asked Baez if he would let him go in exchange for more narcotics and information on his supplier. Upon being told that Baez would not make such a deal and was documenting the defendant’s responses, the defendant refused to continue with the interview.

After reviewing the record, we find no support for the defendant’s claim that Baez’ act of conducting a custodial interview one on one, with evidence in view, was coercive and thereby violated the defendant’s constitutional rights. The defendant presents no evidence that this interview was conducted in a coercive manner. The court found, and we agree, that the defendant was aware of his rights and, in fact, exercised those rights when he discontinued the interview and refused to sign a statement. The defendant’s conduct in stopping the interview, upon realizing that no deal would be made, and his refusal to sign a statement demonstrate not only that he understood his Miranda rights but also that he knew how to exercise those rights. His conduct in initially agreeing to an interview, printing his initials on the first five lines of the waiver form, actively participating in an interview and subsequently bringing to an end that interview demonstrate a valid waiver and exercise of those constitutional rights.

Accordingly, we reject the defendant’s claim that the court improperly denied his motions to suppress his statements to the police.

II

The defendant next claims that there was insufficient evidence to support his conviction of possession of narcotics, possession with intent to sell and operating a drug factory. The defendant further argues that evidence of a conspiracy was also lacking in this matter. We are not persuaded.

“The standard of review of an insufficiency claim is twofold. We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Mikolinski, 56 Conn. App. 252, 260-61, 742 A.2d 1264 (1999), aff'd, 256 Conn. 543, 775 A.2d 274 (2001).

A

The defendant argues that there was insufficient evidence to support his conviction on the charges of possession of narcotics, possession with intent to sell and operating a drug factory. Specifically, he argues that “because [he] was never involved in any transactions, was not present at the time of the search, there was no forensic evidence tying him to the seized evidence, he had no drug contraband on him or other items on him when he was arrested, there was insufficient evidence to sustain the drug convictions in this matter.”

“In order to prove illegal possession of a narcotic substance, it is necessary to establish that the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it. . . . Where, as here, the [narcotics were] not found on the defendant’s person, the state must proceed on the theory of constructive possession, that is, possession without direct physical contact. . . . One factor that may be considered in determining whether a defendant is in constructive possession of narcotics is whether he is in possession of the premises where the narcotics are found. . . . Where the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that [the defendant] knew of the presence of the narcotics and had control over them, unless there are other incriminating statements or circumstances tending to buttress such an inference.” (Citations omitted; internal quotation marks omitted.) State v. Berger, 249 Conn. 218, 225, 733 A.2d 156 (1999).

Although there was no physical evidence placing the defendant at the hotel at the time the heroin and other narcotics related items were seized, the state presented sufficient evidence to support the inference that the defendant knew of the presence of the narcotics and the related processing and packaging equipment and exercised control over them.

First, the evidence demonstrates that it was the defendant who had rented room 271 at the time of the drug seizure on October 14, 1999. Various employees of the hotel stated that room 271 was rented to Felix Aponte. During his interview, the defendant admitted to Baez that he had rented room 271 under the name Felix Aponte to avoid tainting his own name. Vosney, one of the front desk clerks at the hotel, told Baez that she saw the defendant going into and out of room 271. She also testified that the defendant was renting room 271 at the time of the narcotics seizure, was a regular at the hotel and had attained VIP status. Further, she identified the defendant as Felix Aponte from a photograph in an array. She also identified the defendant at trial.

Baez explained to the jury that drug factory dealers typically do not use their homes to package drugs because they do not want their homes located by the police, customers or competitors. They often use locations that are close to home, however. The defendant’s Bond Street home was less than one mile from the hotel.

There were also many other incriminating statements or circumstances that tend to buttress the inference of constructive possession of the heroin and other narcotics related items. See id. The controlled buy of heroin was made in the defendant’s room, and the duffle bag containing a substantial amount of heroin was seized from that room, along with various sorts of drug processing and packaging equipment. Intelligence information led the police to a short Hispanic male, with a light complexion and a bald head, who went by the name of “Willie.” Leftwich and Martinez identified the defendant as fitting this description when they found him at the Bond Street address listed on the hotel registration form.

When interviewed by Baez, the defendant did not deny that the heroin and other processing and packaging equipment were his; rather, he insinuated that they were his. When asked where he had obtained the narcotics, he told Baez that he would give him the name of his supplier in exchange for his release. The defendant then boasted about his ability to obtain even larger quantities of narcotics. He also boasted that he was a bigger dealer than Ortiz. Additionally, although the defendant had not earned any wages since some time prior to the end of 1996, $338 was seized from him upon his arrest.

We do not find it unreasonable for the jury to have concluded that the defendant was in constructive possession of the heroin and other processing and packaging equipment based on the reasonable inferences drawn from the evidence presented. “It is well settled that in reviewing a defendant’s challenge to a verdict based on insufficient evidence, we defer to the jury. . . . We do not sit as [an additional] 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. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” (Citation omitted; internal quotation marks omitted.) State v. Young, 56 Conn. App. 831, 835, 746 A.2d 795, cert. denied, 253 Conn. 904, 753 A.2d 939 (2000). “The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Berger, supra, 249 Conn. 224.

Construing the evidence and the reasonable inferences drawn therefrom in the light most favorable to sustaining the jury’s verdict, as we must, we conclude that the evidence was sufficient to support the guilty verdict on the charges of possession of narcotics, possession of narcotics with intent to sell and operating a drug factory.

B

The defendant next claims that there was insufficient evidence to convict him on the conspiracy counts. He argues that “there was no evidence submitted during the trial to establish a conspiracy between Mr. Ortiz and the [defendant]. No intent or meeting of minds was offered . . . .”

“To establish the crime of conspiracy under § 53a-48 ... it must be shown that an agreement was made between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. The state must also show intent on the part of the accused that conduct constituting a crime be performed. . . . Further, the prosecution must show both that the conspirators intended to agree and that they intended to commit the elements of the underlying offense.” (Internal quotation marks omitted.) State v. Booth, 250 Conn. 611, 657-58, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000). “The existence of a formal agreement between the parties need not be proved; it is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act.” (Internal quotation marks omitted.) State v. Berger, supra, 249 Conn. 226-27.

“Because of the secret nature of conspiracies, a conviction usually is based on circumstantial evidence. . . . Consequently, it is not necessary to establish that the defendant and his coconspirators signed papers, shook hands, or uttered the words we have an agreement. . . . Indeed, a conspiracy can be inferred from the conduct of the accused . . . and his cocon-spirator, as well as from the circumstances presented as evidence in the case.” (Citations omitted; internal quotation marks omitted.) Id., 227.

The evidence demonstrated that the defendant rented room 271 of the hotel under a fictitious name and that Ortiz possessed a key to that room. The hotel, where the defendant was a well known VIP, was less than one mile from his home address. He used the name Felix Aponte in his dealing with the hotel to avoid ruining his own name. After making a controlled buy of nine bags of heroin from room 271, the confidential informant exited the hotel in the company of Ortiz. Soon thereafter, the police executed a search warrant for the room and seized over 550 bags of heroin packaged for sale, as well as uncut heroin, packaging agents and processing equipment. The defendant told the police that he was a bigger dealer than Ortiz and could obtain much larger quantities of narcotics.

It was not necessary for the state to prove that the defendant and Ortiz had drawn up a formal agreement to conspire. See id. The conspiracy here reasonably can be inferred from the conduct of the defendant and Ortiz, as well as from the circumstances presented as evidence in the case. See id. This evidence and the reasonable inferences drawn therefrom was sufficient to permit the jury to make a finding that the defendant and Ortiz had engaged in a mutual plan to possess heroin, to possess heroin with the intent to sell and to operate a drug factory. Accordingly, the defendant’s claim of evidentiary insufficiency is without merit.

Ill

We next address the defendant’s claim that the court violated his right against double jeopardy by improperly sentencing him on all three counts of conspiracy and on both the possession of narcotics count and the possession of narcotics with intent to sell count. The state concedes that the defendant’s conviction for multiple offenses of conspiracy arising from the same set of facts should be combined and the lesser sentences vacated. It also concedes that the defendant’s conviction of possession of narcotics and possession of narcotics with intent to sell should be combined and the lesser sentence vacated. We agree.

“The double jeopardy clause of the fifth amendment to the United States constitution, which is applicable to the states through the due process clause of the fourteenth amendment, protects against multiple punishments for the same offense in a single trial. . . . [Our Supreme Court has] also held that the due process guarantees of article first, § 9, of the Connecticut constitution include protection against double jeopardy.” (Citations omitted; internal quotation marks omitted.) State v. Whipper, 258 Conn. 229, 288, 780 A.2d 53 (2001). “This constitutional guarantee serves three separate functions: (1) It protects against a second prosecution for the same offense after acquittal. [2] It protects against a second prosecution for the same offense after conviction. [3] And it protects against multiple punishments for the same offense [in a single trial].” (Internal quotation marks omitted.) State v. Ferguson, 260 Conn. 339, 360-61, 796 A.2d 1118 (2002); see also State v. Chicano, 216 Conn. 699, 703, 584 A.2d 425 (1990) (defendant’s rights under double jeopardy clause violated where conviction and sentence for both felony murder and manslaughter in first degree were based on single homicide), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991); State v. John, 210 Conn. 652, 693-97, 557 A.2d 93 (same), cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989). The defendant’s claim implicates the last of these functions.

“Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one. . . . The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute. . . . For such a violation, only the single penalty prescribed by the statute can be imposed.” (Internal quotation marks omitted.) State v. Vasquez, 66 Conn. App. 118, 127, 783 A.2d 1183, cert. denied, 258 Conn. 941, 786 A.2d 428 (2001).

The defendant was convicted and sentenced on three separate conspiracy offenses arising from the same set of facts. As such, his multiple sentences cannot stand. See id. The proper remedy in this case is to combine the defendant’s conviction of multiple conspiracies and to vacate the lesser sentences.

We now address the defendant’s claim that the court improperly sentenced him both for possession of narcotics and for possession of narcotics with intent to sell. As we stated in State v. Cavanaugh, 23 Conn. App. 667, 680, 583 A.2d 1311 (1990), cert. denied, 220 Conn. 930, 598 A.2d 1100 (1991), double jeopardy precludes the trial court from sentencing a defendant for possession and possession with intent to sell when the violations resulted from the same act or transaction, because possession is a lesser offense included in the offense of possession with intent to sell.

Our Supreme Court, in State v. Chicano, supra, 216 Conn. 723, explained that when a defendant is convicted of both greater and lesser offenses arising out of a single transaction, the trial court must merge or combine the conviction on the lesser offense with the conviction on the greater offense. It is improper to sentence the defendant on both the greater and lesser offense. Id.

In this case, the defendant properly seeks to have his sentence for possession of narcotics under § 21a-279 (a) vacated and that conviction merged with the conviction for possession of narcotics with intent to sell under § 21a-278 (b). Because possession of narcotics is a lesser offense included within the offense of possession of narcotics with intent to sell and those convictions arose out of the same transaction or act, multiple punishments are improper. See id., 714; State v. Cavanaugh, supra, 23 Conn. App. 680.

The judgment is reversed in part and the case is remanded with direction to merge the conviction on the multiple conspiracy offenses in counts two, four and six, to merge the conviction of possession of narcotics with the conviction of possession of narcotics with intent to sell in counts one and three, and to resentence the defendant. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The defendant told Baez that he used the name Felix Aponte on the hotel registration because he did not want to ruin his own name. He did not specify which of the other names he used that caused this concern.

       See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The waiver form is preprinted and contains, inter alia, the following: “Before I am interviewed or asked any questions, I am aware that I must be advised of my rights and I must fully understand those rights:
      “1. I HAVE BEEN ADVISED AND KNOW THAT I HAVE A RIGHT TO REMAIN SILENT
      “2.1 HAVE BEEN ADVISED AND KNOW THAT ANYTHING I SAY CAN BE USED AGAINST ME IN A COURT OF LAW
      “3.1 HAVE BEEN ADVISED AND KNOW THAT I HAVE A RIGHT TO AN ATTORNEY, AND I KNOW THAT THE ATTORNEY CAN BE WITH ME WHILE I AM BEING QUESTIONED BY THE POLICE
      “4. I HAVE BEEN ADVISED AND KNOW THAT IF I CANNOT AFFORD AN ATTORNEY, ONE CAN BE APPOINTED FOR ME, AND I MAY HAVE HIM WITH ME BEFORE ANSWERING ANY QUESTIONS
      “5. I HAVE BEEN ADVISED AND I KNOW THAT I CAN REFUSE TO ANSWER ANY QUESTIONS, OR, I MAY STOP ANSWERING QUESTIONS AT ANY TIME I SO DESIRE
      “WAIVER:
      “6. NOW THAT I HAVE BEEN ADVISED OF MY RIGHTS AND THAT I FULLY UNDERSTAND THESE RIGHTS, I AM WILLING TO BE INTERVIEWED AND ANSWER QUESTIONS. I DO NOT WISH THE PRESENCE OF ANY ATTORNEY AT THIS TIME. I AM WAIVING THESE RIGHTS FREELY AND VOLUNTARILY, WITHOUT ANY FEAR, THREAT, OR PROMISES BEING MADE TO ME.” (Emphasis in original.)
      The waiver form, then, has a signature line, a date and time line, and a signature line for a witness.

       Vosney testified that VIP status affords certain privileges, such as late check-outs, at a cost of $10 per year.

       That claimed violation of the defendant’s right against double jeopardy was not preserved at trial. Nonetheless, we find the claim reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).