author: FOTI, J.

text:
    CITY OF TORRINGTON v. ZONING COMMISSION OF THE TOWN OF HARWINTON ET AL.
    (AC 20249)
    Foti, Dranginis and Hennessy, Js.
    Argued January 23
    officially released June 19, 2001

      Randall S. McHugh, with whom, on the brief, was Charles F. Basil, for the appellant (plaintiff).

      Michael D. Rybak, for the appellee (named defendant).

      Robert A. D’Andrea, for the appellees (defendant Anthony D’Andrea et al.).
   Opinion

FOTI, J.

The plaintiff, the city of Torrington, upon certification by this court, appeals from the judgment of the trial court dismissing its appeal from the decision of the named defendant, the zoning commission of the town of Harwinton, granting a special permit and site plan approval to the defendant Jerry Saglimbeni. The commission’s decision, subject to the terms and conditions stated therein, permits Saglimbeni to construct a residential community complex on the property of the other defendants in this action, Robert A. D’Andrea and Anthony D’Andrea.

On appeal, the plaintiff claims that the court improperly (1) upheld the Harwinton zoning commission’s decision despite the fact that the special use approved by the commission did not conform to the Harwinton zoning regulations, (2) concluded that a 1991 stipulated judgment in a previous zone change appeal waived, varied, amended or otherwise modified the Harwinton special permit and site plan regulations making the regulations more permissive in connection with the development of the site, (3) concluded that the 1991 stipulated judgment was not void or voidable where it conflicted with General Statutes §§ 8-2, 8-3 and 8-6, (4) failed to consider the plaintiffs claim that the stipulated judgment constituted a de facto amendment to Harwin-ton’s zoning regulations and thereby deprived the plaintiff and others similarly affected of due process protection, (5) failed to find that the stipulated judgment resulted in illegal contract zoning, (6) concluded that the plaintiff was bound by the terms set forth in the stipulated judgment and (7) found that the record contained sufficient evidence to support the commission’s approval of the special permit and site plan application. We affirm the judgment of the court based on our resolution of the first issue raised by the plaintiff and we decline to address the plaintiffs remaining claims because they were not raised before the trial court.

The following facts and procedural history are necessary for our resolution of this appeal. On August 23, 1989, the planning and zoning commission of the city of Torrington approved a subdivision application to develop a certain parcel of real property located in Torrington that abuts the real property that is the subject of the present case. The subject property is owned by the defendants Anthony D’Andrea and Robert A. D’Andrea (D’Andreas). The D’Andreas’ property consists of approximately 10.8 acres of land in Harwinton and is bounded to the north by the Torrington city line. The subdivision approved by the Torrington planning and zoning commission was called “Doolittle Heights Section HI” (Doolittle III). As a condition prior to approval of Doolittle III, the Torrington planning and zoning commission required that the D’Andreas place a covenant on the Harwinton land records regarding their property. The covenant provided that the city of Torrington’s engineering department must approve any public or private access from the D’Andreas’ Harwinton property to a Torrington road.

On November 27, 1989, the D’Andreas applied to the Harwinton zoning commission to change the zone in which their property is located from a “town residential zone” to a “multi-family zone.” The zone change from a “town residential zone,” which required 65,000 square foot lots, to a “multi-family zone” would allow for multifamily dwelling projects, such as condominiums, to be constructed on lots of five acres or larger by special permit.

On April 23, 1990, the commission denied the D’An-dreas’ application. On June 5, 1990, the D’Andreas appealed from the commission’s denial of their application. On January 28, 1991, the D’Andreas and the commission agreed to a stipulated judgment. The stipulated judgment sustained the D’Andreas’ appeal and changed the zone designation. Additionally, the agreement contained three significant provisions in which the commission acknowledged that the D’Andreas (1) had adequate “usable” area, (2) could build thirty-six units and (3) could submit a single application for a special permit.

On April 27,1998, Saglimbeni applied to the commission for a special permit and site plan approval of a development to be located on the 10.8 acres of the D’Andreas’ land. Saglimbeni’s application sought approval of a thirty-six unit residential common interest ownership community with one site plan showing the development having full vehicular access in Harwinton and only gated emergency access into Torrington. A second site plan in the application sought approval of the development with unrestricted access to both Har-winton and Torrington.

Because the proposed development was located within five hundred feet of the Torrington city line, the commission, pursuant to General Statutes § 8-3h, notified the Torrington town clerk of the pendency of Saglimbeni’s application. On May 27,1998, the planning and zoning commission of the city of Torrington voted unanimously to recommend that no access be allowed from the D’Andreas’ property to any Torrington street. On June 1, 1998, the Torrington planning and zoning commission sent notice of its decision to the Harwinton zoning commission.

On various dates between June 9, 1998, and July 27, 1998, the Harwinton zoning commission held public hearings pursuant to General Statutes § 8-3c (b). Har-winton’s town engineer recommended to the commission that any access to Torrington roads be on an emergency basis only.

Saglimbeni’s application proposed that all of the drainage from the proposed development enter into an on-site detention basin, the outlet of which would connect to the Torrington storm sewer system. The proposed connection to Torrington’s sewer required the plaintiffs approval. The plaintiff did not approve the connection to its storm sewer system because Sag-limbeni did not demonstrate that Torrington’s storm water system would have the capacity to handle the proposed development’s generated storm water.

Saglimbeni’s application also sought to discharge the sewage from the site to the Harwinton water pollution control authority sewer main located under Mountain View Drive. The Harwinton water pollution control authority did not provide formal approval for the sewage disposal because Saglimbeni did not formally apply for a sewer connection permit. The commission required this as a condition prior to approval.

At the public hearings in June and July, 1998, Saglim-beni’s attorney referred to the 1991 stipulated judgment as binding on the commission despite the Harwinton zoning regulations that may in some instances impose greater restrictions or higher standards on the use of the site. On September 17,1998, the commission unanimously approved Saglimbeni’s application and site plan, which showed the development as having full and unrestricted vehicular access into both Harwinton and Torrington. The commission did, however, place nineteen restrictions on its approval. The two most significant restrictions required that Saglimbeni receive final approval from the Torrington engineering department and the Harwinton water pollution control authority prior to commencing construction on the site. The commission published notice of its approval of Saglimbeni’s application in the Waterbury Republican-American on September 25, 1998. The plaintiff appealed from the commission’s decision to the Superior Court on October 7, 1998. On July 30, 1999, the court found for the defendants and dismissed the appeal. The plaintiff appealed, and we granted certification.

The plaintiff claims that the court improperly upheld the commission’s decision when the special use for which Saglimbeni applied did not conform to the Har-winton zoning regulations governing special permits. In response, the commission argues that it properly approved the application on the basis of the contents of the 1991 stipulated judgment and the additional restrictions that it placed on the application. We agree with the commission.

Before we address the plaintiffs claims, we first state the applicable standard of review. “Conclusions reached by [a zoning] commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission]. . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached. . . . Calandro v. Zoning Commission, 176 Conn. 439, 440, 408 A.2d 229 (1979). . . . West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 513, 636 A.2d 1342 (1994). The settled standard of review of questions of fact determined by a zoning authority is that a court may not substitute its judgment for that of the zoning authority as long as it reflects an honest judgment reasonably exercised. . . . The court’s review is based on the record, which includes the knowledge of the board members gained through personal observation of the site ... or through their personal knowledge of the area involved. . . . Cybulski v. Planning & Zoning Commission, [43 Conn. App. 105, 111, 682 A.2d 1073, cert. denied, 239 Conn. 949, 686 A.2d 123 (1996)].” (Internal quotation marks omitted.) Raczkowski v. Zoning Commission, 53 Conn. App. 636, 642-43, 733 A.2d 862, cert. denied, 250 Conn. 921, 738 A.2d 658 (1999).

Absent bad faith, collusion or other improper conduct by the parties, a planning commission may settle an appeal by way of a stipulated judgment. See Sendak v. Planning & Zoning Commission, 7 Conn. App. 238, 244, 508 A.2d 781 (1986). Competing social interests exist when a commission decides to settle an appeal in such a manner. See id., 242. “One is the powerful interest in the promotion of settlement of litigation by agreement of the parties. See, e.g., Blake v. Levy, 191 Conn. 257, 264, 464 A.2d 52 (1983). Our Supreme Court has clearly recognized that this interest applies to administrative proceedings by explicitly approving a stipulation for judgment in an administrative appeal then pending before it. See Hartford v. Hartford Electric Light Co., 173 Conn. 340, 377 A.2d 1090 (1977). This interest would be seriously undercut if, after a planning commission has in good faith settled a pending appeal by agreeing to a stipulated judgment, that settlement could be challenged by a subsequent appeal by third parties.

“The other powerful competing social interest is the need for protection of the integrity of the land use planning process. This interest derives from the recognition that, where an initially unsuccessful applicant before a planning commission takes an appeal to the court, the applicant and the commission could abuse the entire process by collusively stipulating to a judgment in the applicant’s favor, and thus evade both judicial review and effective scrutiny by potentially aggrieved neighbors whose attempts to intervene had not yet been acted upon. This recognition derives, in turn, from the reality that there are cases in which ‘the propriety of the conduct of the commission is open to criticism.’ Mills v. Town Plan & Zoning Commission, 145 Conn. 237, 241, 140 A.2d 871 (1958).” Sendak v. Planning & Zoning Commission, supra, 7 Conn. App. 242-43.

The legislature enacted General Statutes (Rev. to 1999) § 8-8 (n), now § 8-8 (m),to address the challenges created by these competing interests by requiring that any settlement between the parties to a zoning appeal shall not be effective until a hearing is held before the Superior Court and that court approves the proposed settlement. “[This court] has recognized the policy of protecting the public interest by holding open hearings prior to Superior Court approval of a settlement of a land use appeal. Levine v. Plan & Zoning Commission, 25 Conn. App. 199, 203, 594 A.2d 9 (1991); Sendak v. Planning & Zoning Commission, [supra, 7 Conn. App. 243 & n.1], [We have] explained: ‘The purpose of the statute is to ensure that zoning matters can be scrutinized by the public by means of a public record.’ Levine v. Plan & Zoning Commission, supra, 203.” Willimantic Car Wash, Inc. v. Zoning Board of Appeals, 247 Conn. 732, 741-42, 724 A.2d 1108 (1999).

“A stipulated judgment is not a judicial determination of any litigated right. ... It may be defined as a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction. ... [It is] the result of a contract and its embodiment in a form which places it and the matters covered by it beyond further controversy. . . . The essence of the judgment is that the parties to the litigation have voluntarily entered into an agreement setting their dispute or disputes at rest and that, upon this agreement, the court has entered judgment conforming to the terms of the agreement. . . . Gillis v. Gillis, 214 Conn. 336, 339-40, 572 A.2d 323 (1990). . . . Tureck v. George, 44 Conn. App. 154, 161, 687 A.2d 1309, cert. denied, 240 Conn. 914, 691 A.2d 1080 (1997). In approving a settlement affecting the public interest ... a trial court must be satisfied of the fairness of the settlement. Janus Films, Inc. v. Miller, 801 F.2d 578, 582 (2d Cir. 1986). . . . Willimantic Car Wash, Inc. v. Zoning Board of Appeals, [supra, 247 Conn. 744].” (Internal quotation marks omitted.) Rocque v. Northeast Utilities Service Co., 254 Conn. 78, 83, 755 A.2d 196 (2000).

Because a stipulated judgment is considered to be a contract, “the interpretation of a stipulated judgment, like the interpretation of a contract, is usually a question of fact. Griffin v. Planning & Zoning Commission, [30 Conn App. 643, 650, 621 A.2d 1359 (1993)], citing Gurliacci v. Mayer, 218 Conn. 531, 567, 590 A.2d 914 (1991). The interpretation of a contract is a question of law only where the language is definitive and unambiguous. Levine v. Massey, 232 Conn. 272, 278, 654 A.2d 737 (1995).” (Internal quotation marks omitted.) Town Close Associates v. Planning & Zoning Commission, 42 Conn. App. 94, 108, 679 A.2d 378, cert. denied, 239 Conn. 914, 682 A.2d 1014 (1996).

The plaintiff argues that Saglimbeni’s application did not comply with the Harwinton regulations relating to (1) usable land area requirements, (2) vehicular access, (3) water supply and sewage disposal certification by the health officer and (4) the number of dwelling units allowed in an application for a special permit. Here, the first, second and fourth issues raised by the defendant are expressly provided for by the stipulated judgment. Although the third issue is not provided for in the stipulated judgment, the commission expressly addressed it as a condition of approval. We address each of the plaintiffs claims in turn.

I

The plaintiff first claims that Saglimbeni’s application did not conform with the usable land area requirement in violation of § 4.7.4 (c) of the zoning regulations of the town of Harwinton. Specifically, the plaintiff argues that the application does not comply with the portion of that regulation that states that “the minimum required land area per dwelling unit shall be 45,000 square feet of usable land area for each dwelling unit unless the development is served by a public water system approved by the State Department of Health Services and public sewer facilities approved by the Water Pollution Control Authority in which case the maximum number of dwelling units shall be 3.5 per usable acre.” The plaintiff cites several reasons why the application does not comport with § 4.7.4. The plaintiff ignores, however, the fact that the judgment controls as a binding contract. Indeed, paragraph four of the stipulated judgment provides: “Notwithstanding any provisions to the contrary contained in the Zoning Regulations, the [commission] acknowledges that the [applicants] have adequate ‘usable’ area, as said term is defined in Section 4.7.4 of the Zoning Regulations, contained on the Parcels so as to permit the construction of said 36 single family units.”

The commission stated that it approved the application for the following reasons: (1) “The application, as presented, meets the regulations, as modified by the Judgment”; and (2) “[b]ased on the public record, the Commission has taken into careful consideration, the health, safety, and welfare of the citizens of the Town of Harwinton.” The commission determined that it was bound by the terms of its contract with the D’Andreas. After examining the record, we conclude that the commission properly approved the application because it concluded that the stipulated judgment modified the aforementioned regulation.

II

The plaintiff next argues that the application did not provide proper vehicular access to the proposed development in violation of § 4.7.4 (d) of the zoning regulations of the town of Harwinton. Specifically, the plaintiff challenges the portion of that regulation that provides: “Any development with 30 or more dwelling units or 250 or more projected vehicle trips per day shall have its primary vehicular access either . . . directly onto a State Highway and shall have more than one point of vehicular- access to a State Highway or Town road, or . . . directly onto a Town road leading to a State Highway where the Town road has a minimum paved surface width of 22 feet and no grade in excess of 12 [percent] and shall have more than one point of vehicular access to the Town road.”

Here, again, the commission found that the regulation was satisfied because the 1991 stipulated judgment modified it to the extent that paragraph five of the judgment provides: “Notwithstanding any provisions to the contrary contained in the Zoning Regulations, the [commission] acknowledges that the [applicants] have adequate road access to the Project which road access shall be either through Torrington, Harwinton, or a combination of the two as determined by the [commission]. The constructed roads within the Project shall be private roads. The roadways, storm water drainage system, ponds, sewer system and any other common area improvements within the Project shall be maintained by a Unit Owner’s Association to be formed by the [applicants] pursuant to the provisions of Chapter 828 of the General Statutes, which chapter is cited as ‘The Common Interest Ownership Act.’ ” We conclude that the commission properly concluded that § 4.7.4 (d) was satisfied because of the modifications contained in the 1991 stipulated judgment.

Ill

The plaintiff next claims that the application did not conform to § 7.5.12 of the zoning regulations of the town of Harwinton, which requires that a site plan shall contain a certification by the health officer concerning water supply and sewage disposal. Section 7.5 is titled “SITE PLAN REQUIREMENTS” and provides in relevant part: “The plan shall contain the following, as applicable: Certification by the Health Officer concerning satisfactory conditions for water supply and sewage disposal, consistent with the Health Code.” This challenge by the plaintiff is not dealt with in the stipulated judgment, and our review of the record leads us to conclude that the site plan did not contain such a certification by the health officer. Nevertheless, we do not agree with the plaintiff that this lack of certification matters because conditions nine and eleven of the terms and conditions of the commission’s decision address these issues. Paragraphs nine and eleven of the conditions provide that the applicant must obtain and submit final approval to the commission of his compliance with regulation § 7.5.12. Moreover, § 7.5 of the Harwinton zoning regulations, which specifies the requirements of a site plan, provides that the site plan shall contain these requirements “as applicable.”

IV

The plaintiff next claims that the application did not satisfy the requirement that an application for a special permit consist of no more than thirty dwelling units in violation of § 4.7.3 of the Harwinton zoning regulations. Specifically, the plaintiff relies on the language of the regulation that provides: “[A]n application for a Special Permit in a PR zone shall consist of no more than 30 dwelling units. The Commission shall consider only one application for a Special Permit at a time and shall accept no further applications for a Special Permit within the Planned Residential Zone until such time as 70 [percent] of the dwelling units for any previously approved Special Permit in that Zone have been built and at least 50 [percent] of the total approved dwelling units have been occupied.”

The stipulated judgment also modified § 4.7 of the regulations. Indeed, paragraph three of the terms and conditions of the stipulated judgment provides: “Notwithstanding any provision to the contrary contained in the Zoning Regulations, the [applicants] may submit a single application for a Special Permit as required by Section 4.7 and Section 8 of the Zoning Regulations, and the [commission] agrees to permit the construction of 36 single family units on the Parcels.” The commission properly found that it was bound by the terms of the stipulated judgment.

We conclude that the plaintiffs claims that the application violated the regulations are without merit because the stipulated judgment controlled all of the regulations with which the plaintiff takes issue. The plaintiff does not challenge the judgment on the basis of collusion, bad faith or other improper conduct. Moreover, the plaintiff neither challenged the 1991 stipulated judgment at the hearing at which the agreement was accepted by the court, nor did the plaintiff move to open the judgment within the time for doing so. We conclude that the commission properly approved the application on the basis of its regulations as modified by the stipulated judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs brief sets forth the following issues on appeal:
      “1. Did the Trial Court err in upholding the Commission’s decision despite the fact that the specially permitted use did not conform to the Harwinton Zoning Regulations governing special permits?
      “2. Did the Trial Court err in concluding that a 1991 stipulated judgment in a zone change appeal, properly waived, varied, amended or otherwise modified the Harwinton special permit and site plan regulations to malee the regulations more permissive in connection with the development of the subject site?
      “3. Did the Trial Court err in concluding that the 1991 stipulated judgment was not void or voidable, despite the fact that the agreement resulting in the stipulated judgment was in conflict with Connecticut General Statutes [§§] 8-2, 8-3 or 8-6?
      “4. Did the Trial Court err in failing to consider the claim that the effect of the stipulated judgment upon Harwinton’s zoning regulations constituted a de facto amendment to said regulations without due process protection to which Torrington and others similarly affected were entitled?
      “5. Did the Trial Court err in not finding that the stipulated judgment resulted in illegal contract zoning?
      “6. Did the Trial Court err in concluding that the 1991 stipulated judgment was conclusive and binding upon Torrington?
      “7. Did the Trial Court err in finding that there was sufficient evidence in the record to support the approval of the special permit and site plan applications by Harwinton?”
      Paragraph twenty-eight of the plaintiffs complaint provides: “In approving the special permit and site plan, the Zoning Commission acted illegally, arbitrarily and in abuse of the discretion vested in it in each of the following ways:
      “(a) The Zoning Commission failed to administer the Zoning Regulations by approving an application which did not comply with many of the requirements set forth in the Zoning Regulations;
      “(b) The Zoning Commission wrongfully allowed the applicant to submit for consideration two different site plans, in one application;
      “(c) The Zoning Commission wrongfully considered two different site plans in one application;
      “(d) The Zoning Commission illegally approved the application subject to approvals of agencies over which the Zoning Commission has no control;
      “(e) The Zoning Commission failed to follow the recommendation of [its] own engineer whose recommendation was that the access on the Torrington side be emergency only.”
      We address the plaintiffs first claim because it was raised in the plaintiffs complaint and briefed in the trial court. We note that the trial court, declined to address claims (b), (c), (d) and (e) because the plaintiff did not brief those claims. The plaintiff did not request an articulation of the court’s decision denying review of those claims. Practice Book § 66-5. “It is the appellant’s responsibility to furnish (his court with an adequate record for review.” Manchester v. Zoning Board of Appeals, 18 Conn. App. 69, 70 n.1, 556 A.2d 1026, cert. denied, 212 Conn. 804, 561 A.2d 946 (1989); see also Practice Book § 61-10.
      The plaintiffs remaining appellate issues, although included in the plaintiffs trial court brief and in its appellate brief, were not raised in the plaintiffs complaint. Therefore, we decline to address issues two through seven as raised by the plaintiff in its appellate brief because “[w]e are not required to review claims that were not distinctly raised in the trial court. Practice Book § 60-5; see Bell Atlantic Mobile, Inc. v. Dept. of Public Utility Control, 253 Conn. 453, 485, 754 A.2d 128 (2000).” Kroll v. Steere, 60 Conn. App. 376, 378 n.2, 759 A.2d 541, cert. denied, 255 Conn. 909, 763 A.2d 1035 (2000).
      Administrative appeals are civil actions. Practice Book § 14-8. “It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint.” (Internal quotation marks omitted.) Lamb v. Bums, 202 Conn. 158, 172, 520 A.2d 190 (1987). “A complaint must fairly put the defendant on notice of the claims . . . against him. . . . The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise.” (Citation omitted.) Farrell v. St. Vincent’s
        Hospital, 203 Conn. 554, 557, 525 A.2d 954 (1987). “This court will not consider issues which are brought to the court’s attention for the first time by way of the appellant’s brief.” Robinson v. ITT Continental Baking Co., 2 Conn. App. 308, 314, 478 A.2d 265 (1984).

       By quitclaim deed, made for the purpose of creating the covenant, the D’Andreas conveyed the property to themselves with the following covenant running with the land: “THAT SHOULD THE GRANTEES, their heirs, executors or assigns, now or in the future, desire to obtain public and/or private access from the above described property to property and/or a public street located in the Town of Torrington, it is understood that such access shall be made at a location to be approved by the City of Torrington Engineering Department.”

       The trial court, Susco, J., after a hearing, accepted the parties stipulated judgment. The terms and conditions of the judgment provide:
      “1. The [applicants’] application is granted, and, therefore, the parcels of property designed in said application as Parcels ‘A’ and ‘B,’ having a total area of 10.78 acres, and as more particularly shown on a certain survey map entitled ‘Map Showing Property of Anthony D’Andrea & Robert D’Andrea and Property to Be Acquired From Maureen J. Beyus Torcon Drive & Mountain View Drive Harwinton Connecticut’ dated 6-17-88 as revised 10-10-89, a copy of which is attached hereto and made a part hereof, (the ‘Parcels’), are hereby designated as being zoned ‘Planned Residential Family’ as presently provided in Section 4.7 of the Zoning Regulations.
      “2. Notwithstanding any provisions to the contrary [contained in the] Zoning Regulations, the Parcel shall contain a maximum development of 36 single units with 2 bedrooms each, which shall be limited, however, to no more than 4 single family units per structure (the ‘Project’).
      “3. Notwithstanding any provision to the contrary contained in the Zoning Regulations, the [applicants] may submit a single application for a Special Permit as required by Section 4.7 and Section 8 of the Zoning Regulations, and the [commission] agrees to permit the construction of 36 single family units on the Parcels.
      “4. Notwithstanding any provisions to the contrary contained in the Zoning Regulations, the [commission] acknowledges that the [applicants] have adequate ‘usable’ area, as said term is defined in Section 4.7.4 of the Zoning Regulations, contained on the Parcels so as to permit the construction of said 36 single family units.
      “5. Notwithstanding any provisions to the contrary contained in the Zoning Regulations, the [commission] acknowledges that the [applicants] have adequate road access to the Project which road access shall be either through Torrington, Harwinton, or a combination of the two as determined by the [commission]. The constructed roads within the Project shall be private roads. The roadways, storm water drainage system, ponds, sewer system and any other common area improvements within the Project shall be maintained by a Unit Owner’s Association to be formed by the [applicants] pursuant to the provisions of Chapter 828 of the General Statutes, which chapter is cited as ‘The Common Interest Ownership Act.’
      “6. In the event the Project requires the discharge of storm water into a Harwinton storm water drainage system, then the [applicants] agree to provide an engineered storm water drainage system which will result in no increase in the peale rate of said storm water discharge calculated on a 100 year storm projection.
      “7. In the event the Project requires the discharge of storm water into a Harwinton storm water drainage system, then the [applicants] agree to make such reasonable off-site improvements to the Harwinton storm water drainage system along or near the roads abutting the Parcels as recommended by the engineers for Harwinton. The purpose of such reasonable off-site improvements shall be to assist Harwinton in correcting storm water drainage problems which may result from the construction of the Project.
      “8. All areas designated as Open Space within the Project shall be owned by the Unit Owner’s Association. Said Open Space shall neither be transferred by the Unit Owner’s Association, nor shall said Open Space be utilized for the construction of any additional residential dwellings.
      “9. The [applicants] will not seek to make any roadway within the Project public absent written consent from the Harwinton Zoning Commission, the Harwinton Planning Commission, and the Harwinton Board of Finance.
      “10. The terms and conditions contained in this Stipulation shall apply in their entirety to the parties, and bind the heirs, executors, administrators, successors and assigns of said parties.”

       General Statutes § 8-3h provides: “The zoning commission of any municipality shall notify the clerk of any adjoining municipality of the pendency of any application, petition, request or plan concerning any project on any site in which: (1) Any portion of the property affected by a decision of such zoning commission is within five hundred feet of the boundary of the adjoining municipality; (2) a significant portion of the traffic to the completed project on the site will use streets within the adjoining municipality to enter or exit the site; (3) a significant portion of the sewer or water drainage from the project on the site will flow through and significantly impact the drainage or sewerage system within the adjoining municipality; or (4) water runoff front the improved site will impact streets or other municipal or private property within the adjoining municipality. Such notice shall be made by certified mail, return receipt requested, and shall be mailed within seven days of the date of receipt of the application, petition, request or plan. No hearing may be conducted on any application, petition, request or plan unless the adjoining municipality has received the notice required under this section. Such adjoining municipality may, through a representative, appear and be heard at any hearing on any such application, petition, request or plan.”

       General Statutes § 8-3c (b) provides: “The zoning commission or combined planning and zoning commission of any municipality shall hold a public hearing on an application or request for a special permit or special exception, as provided in section 8-2, and on an application for a special exemption under section 8-2g. The commission shall not render a decision on the application until the inland wetlands agency has submitted a report with its final decision to such commission. In making its decision the zoning commission shall give due consideration to the report of the inland wetlands agency. Notice of the time and place of such hearing shall be published in a newspaper having a substantial circulation in such municipality at least twice, at intervals of not less than two days, the first not more than fifteen days, nor less than ten days, and the last not less than two days before the date of such hearing. In addition to such notice, such zoning commission may, by regulation, provide for notice by mail to persons who are owners of land which is adjacent to the land which is the subject of the hearing. At such hearing any party may appear in person and may be represented by agent or by attorney. Such commission shall decide upon such application or request within the period of time permitted under section 8-7d. Whenever a commission grants or denies a special permit or special exception, it shall state upon its records the reason for its decision. Notice of the decision of the commission shall be published in a newspaper having a substantial circulation in the municipality and addressed by certified mail to the person who requested or applied for a special permit or special exception, by its secretary or clerk, under his signature in any written, printed, typewritten or stamped form, within fifteen days after such decision has been rendered. In any case in which such notice is not published within such fifteen-day period, the person who requested or applied for such special permit or special exception may provide for the publication of such notice within ten days thereafter. Such permit or exception shall become effective upon the filing of a copy thereof (1) in the office of the town, city or borough clerk, as the case may be, but, in the case of a district, in the offices of both the district clerk and the town clerk of the town in which such district is located and (2) in the land records of the town in which the affected premises are located, in accordance with the provisions of section 8-3d.”

       General Statutes § 8-8 (m) provides: '‘No appeal taken under subsection (b) of this section shall be withdrawn and no settlement between the parties to any such appeal shall be effective unless and until a hearing has been held before the Superior Court and such court has approved such proposed withdrawal or settlement.”

         “The legislative history of § 8-8 (n) [now § 8-8 (m)] reflects this policy. It indicates that the requirement of court approval was designed to guard against surreptitious dealing between zoning boards and applicants, to avoid frivolous appeals initiated for ‘leverage,’ and to ensure that settlements are fair. 27 H.R. Proc., Pt. 10, 1984 Sess., pp. 3780-81, remarks of Representative Richard D. Tulisano.” Willimantic Car Wash, Inc. v. Zoning Board of Appeals, 247 Conn. 732, 742 n.16, 724 A.2d 1108 (1999).

       Condition nine of the terms and conditions of the commission’s decision provides: “Sewers. The applicant must obtain and submit final approval from the Harwinton Water Pollution Control Authority, as per Sections 1.3.3.1., 4.7.4.C, 7.5.10., and 7.5.12. of the Zoning Regulations and the WPCA report of 3/21/98.”

       Condition eleven of the terms and conditions of the commission’s decision provides: “Water Connection. The applicant must obtain and submit final approval from the Torrington Water [Company], as per Sections 1.3.3.1., 7.5.10., and 7.5.12. of the Zoning Regulations.”


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. RAYMOND YOUNG
    (AC 19661)
    Landau, Schaller and Hennessy, Js.
    Argued April 3
    officially released June 19, 2001

      James B. Streeto, deputy assistant public defender, for the appellant (defendant).

      Robert M. Spector, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Victor Carlucci, Jr., assistant state’s attorney, for the appellee (state).
   Opinion

LANDAU, J.

The defendant, Raymond Young, appeals from the judgment revoking his probation rendered after a trial to the court. On appeal, the defendant claims that the trial court improperly (1) refused to admit certain hearsay statements into evidence, (2) concluded that there was sufficient evidence to convict him of violation of probation, and (3) revoked his probation and sentenced him to serve the time remaining on his term of imprisonment. We affirm the judgment of the trial court.

On January 11, 1995, the defendant was sentenced to seven years imprisonment, suspended after one year, and three years probation following his conviction for violation of narcotics laws. His corresponding probation began on June 3, 1996. On May 15, 1997, members of a state and local police crime and gang task force and the Hartford police department street crimes unit were working together to target street level drug dealing in Hartford. Officer Brian Logan of the Simsbury police department was designated as the undercover officer. He was to operate a motor vehicle along Edgewood Street, purchase $10 of crack cocaine from a seller and leave the area. Officers Luis Rodriguez and Lance Sigersmith of the Hartford police department acted as the cover officers. They were posted in an unmarked police vehicle at the intersection of Edgewood Street and Albany Avenue, where they were able to monitor Logan’s welfare through a wire transmitter and identify the seller after Logan left the area.

At approximately 8:45 p.m., Logan drove along Edge-wood Street and saw the defendant standing in front of number 56. Logan had previously bought narcotics at 56 Edgewood Street, which is within 1500 feet of the Vine Street elementary school. The defendant made eye contact with Logan, which is the manner in which street dealers indicate that they have narcotics for sale. Logan stopped and asked the defendant for a “ten rock, ” which is street parlance for a $10 piece of crack cocaine. The defendant gave Logan a small piece of crack cocaine in exchange for $10. Rodriguez and Sigersmith observed the interaction between the two men, although they could not see the narcotics or money exchange hands.

As soon as the transaction was completed, Logan left the area. Using his wire transmitter, Logan provided Rodriguez and Sigersmith with a description of the defendant, specifically, a very large African-American male in his twenties, approximately six feet, six inches tall and extremely muscular. He also gave an explicit description of the defendant’s attire. Rodriguez saw the defendant standing in front of 56 Edgewood Street. Logan then met Officer Neville Brooks of the Hartford police department at a predesignated site, where Brooks field tested Logan’s purchase, which tested positive for cocaine.

In the meantime, Rodriguez and Sigersmith drove to 56 Edgewood Street and approached the defendant, who identified himself as Raymond Young and produced photographic identification to that effect. The officers obtained a warrant for the defendant’s arrest. When he learned of the warrant, the defendant surrendered and was charged with multiple narcotics violations. The defendant was subsequently arrested and charged with violation of probation.

At trial, the defendant claimed that the charges were the result of mistaken identity. The defendant contended that the individual involved in the transaction was his brother, Jeffrey Young. Jeffrey Young is approximately six feet, four inches tall and weighed between 230 and 240 pounds at the time of that transaction. Rodriguez and Sigersmith made in-court identifications of the defendant. Rodriguez did not know the defendant on the date of the transaction, but knew Jeffrey Young from previous interactions. He was certain that the individual he stopped was not Jeffrey Young. He also thought that Jeffrey Young and the defendant did not look alike. There was conflicting testimony as to whether the person whom the police stopped on May 15, 1997, had gold teeth and which of the brothers had gold teeth. The gold teeth at issue were removable caps. The defendant does not have his two front teeth and has gold caps. The court found that the defendant had violated the terms of his probation for violating the laws of this state and sentenced him to prison to serve the remaining six year portion of his original prison term. The defendant appealed. Additional facts will be provided as necessary.

I

The defendant first claims that the court improperly sustained the state’s objections to certain hearsay statements that the defendant proffered, specifically, a statement signed by Jeffrey Young and testimony from the defendant’s aunt, Ella Barber. We agree with the court’s evidentiary rulings.

Ordinarily, “[o]ur standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) State v. McClendon, 45 Conn. App. 658, 671, 697 A.2d 1143 (1997), aff'd, 248 Conn. 572, 730 A.2d 1107 (1999).

With respect to both of his evidentiary claims, the defendant argues, on appeal, that the court’s rulings were improper because the rules of evidence do not apply to probation revocation hearings. In general, the rules of evidence do not apply to sentencing proceedings, which include revocation of probation matters. State v. Huey, 199 Conn. 121, 126, 505 A.2d 1242 (1986); see also C. Tait, Connecticut Evidence (3d Ed. 2001) § 1.11.5, p. 36. The defendant, however, ignores the rule’s jurisprudential basis. We begin our analysis with a review of the rule’s history, specifically, with Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949), in which the United States Supreme Court considered “the rules of evidence applicable to the manner in which a judge may obtain information to guide him in the imposition of sentence upon an already convicted defendant.” Id., 244.

Historically, tribunals passing on the guilt of a defendant have always been restrained by evidentiary limitations. Id., 246. At trial, “the issue is whether a defendant is guilty of having engaged in certain criminal conduct of which [the defendant] has been specifically accused. Rules of evidence have been fashioned for criminal trials which narrowly confine the trial contest to evidence that is strictly relevant to the particular offense charged. These rules rest in part on a necessity to prevent a time-consuming and confusing trial of collateral issues. They were also designed to prevent tribunals concerned solely with the issue of guilt of a particular offense from being influenced to convict for that offense by evidence that the defendant had habitually engaged in other misconduct.” Id., 246-47.

Prior to and since the founding of the American colonies, however, courts in England and here “practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist [the judge] in determining the kind and extent of punishment to be imposed within limits fixed by law.” Id., 246. Unlike a trial judge, who functions somewhat as a keeper of the evidentiary gate, a sentencing judge is charged with deteimining the type and extent of punishment within fixed statutory and constitutional limits. Id., 247. “Retribution is no longer the dominant objective of the criminal law. Reformation and rehabilitation of offenders have become important goals of criminal jurisprudence.” Id., 248. “[M]odem concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial.” Id., 247.

“[R] evocation of [probation] is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to [probation] revocations.” Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). A probation revocation hearing “must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation. ” Id., 488. A probationer is entitled to be heard and show, if possible, that a violation did not occur. The inquiry is a narrow one and “the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.” Id., 489.

The process, however, is not so flexible as to be completely unrestrained; there must be some indication that the information presented to the court is responsible and has some minimal indicia of reliability. State v. Huey, supra, 199 Conn. 127. “Both the probationer . . . and the State have interests in the accurate finding of fact and the informed use of discretion — the probationer ... to insure that his liberty is not unjustifiably taken away and the State to make certain that it is neither unnecessarily interrupting a successful effort at rehabilitation nor imprudently prejudicing the safety of the community.” (Emphasis added.) Gagnon v. Scarpelli, 411 U.S. 778, 785, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973); see also Morrissey v. Brewer, supra, 408 U.S. 484. “[T]he state, as well as the probationer, has an interest in a reliable determination of whether probation has been violated. Payne v. Robinson, 207 Conn. 565, 574, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988) (rational basis for admission of evidence otherwise subject to exclusionary rule exists . . .).” (Citations omitted; emphasis in original.) State v. Davis, 229 Conn. 285, 296-97, 641 A.2d 370 (1994). The statements at issue here, however, do not have the necessary characteristics of reliability, and the court’s refusal to admit them into evidence did not prejudice the defendant for the following reasons.

A

The defendant argues that the court improperly refused to admit into evidence a notarized statement signed by his brother, Jeffrey Young. The following facts pertain to this claim. In support of his mistaken identity defense, the defendant called Jeffrey Young to testify at the revocation hearing. He testified that in 1997 he was stopped by police officers on Edgewood Street at least once a week. He also testified that he was stopped by police officers in May, 1997, but was unable to state a specific date or dates on which he was stopped. Jeffrey Young frequently identified himself to police by the name of one of his four brothers, including the name of the defendant, because there were at least two warrants outstanding for his arrest. He did not remember a specific time or date when he used the defendant’s name. When defense counsel asked him whether he had ever made a narcotics sale to an undercover police officer, Jeffrey Young answered that he would have no way of knowing whether the person was a police officer. Defense counsel then asked that a document purported to be a notarized statement signed by Jeffrey Young be marked for identification. When defense counsel asked him whether he had made that statement, Jeffrey Young asserted his right against self-incrimination pursuant to the fifth amendment to the United States constitution. Defense counsel then moved that the written statement be made a full exhibit pursuant to State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), because the witness was unavailable. The court denied the motion because defense counsel had not laid a foundation for the statement. In response to questions from defense counsel and the court, Jeffrey Young testified that he did not know who the notary was, that he did not knowingly sell drugs to an undercover police officer and that he had never before seen the piece of paper containing the statement. Subsequently, on redirect examination, defense counsel again tried to have the statement admitted into evidence as a prior inconsistent statement. The court sustained the state’s objection.

“An out of court statement is hearsay when it is offered to establish the truth of the matters contained therein. ... As a general rule, hearsay evidence is not admissible unless it falls under one of several well established exceptions. . . . The purpose behind the hearsay rule is to effectuate the policy of requiring that testimony be given in open court, under oath, and subject to cross-examination.” (Internal quotation marks omitted.) State v. McClendon, supra, 45 Conn. App. 671.

A prior inconsistent statement signed by the declarant, who has personal knowledge of the facts stated, testifies at trial and is subject to cross-examination, may be used for substantive purposes. State v. Whelan, supra, 200 Conn. 753. “The proffering party bears the burden of establishing the relevance of the offered testimony. Unless a proper foundation is established, the evidence is irrelevant.” (Internal quotation marks omitted.) State v. McPhee, 58 Conn. App. 501, 513, 755 A.2d 893, cert. denied, 254 Conn. 920, 759 A.2d 1026 (2000).

Here, the court properly exercised its discretion by excluding the statement because the defendant was unable to lay a foundation for its admissibility. Jeffrey Young testified that he did not sign the statement and, when asked by the court, testified that he did not recognize the piece of paper on which the statement was written. The statement, therefore, lacked the minimal indicia of reliability required in probation revocation proceedings. See State v. White, 169 Conn. 223, 239-40, 363 A.2d 143 (hearsay testimony admissible at probation revocation if reliable and not unsupported), cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975).

Furthermore, the defendant was not prejudiced by the court’s refusal to admit the statement into evidence. Jeffrey Young admitted that he sold narcotics, that he had no way of knowing whether he sold narcotics to an undercover officer, that he was stopped by the police approximately once a week in 1997, including during the month of May, and that he identified himself by one of his brothers’ names because there were two warrants outstanding for his arrest. The written statement at issue does not bolster the defendant’s theory of misiden-tification because it does not contain a date on which Jeffrey Young supposedly sold narcotics to an undercover officer. More importantly, Rodriguez, who knew Jeffrey Young from prior interactions, and Sigersmith testified that Jeffrey Young was not the individual who sold crack cocaine to Logan on May 15, 1997.

B

The defendant claims that the court also improperly refused to permit hearsay testimony from his aunt, Barber, about whether Jeffrey Young had ever told her that he had used the defendant’s identity. The defendant claims that the court’s ruling was improper because the rules of evidence do not apply to violation of probation hearings. We decline to review the defendant’s claim.

The following facts relate to the defendant’s eviden-tiary claim. Barber is the sister of the defendant’s deceased mother. During the defendant’s direct examination of Barber, he asked, “Did Jeffrey ever tell you that he used [the defendant’s] identity?” The state objected on the ground of hearsay, and the court sustained the objection. Thereafter, the defendant again asked Barber, “Did Jeff ever tell you that he used [the defendant’s] identity?” The state again objected on the ground of hearsay, and the court again sustained the objection. The defendant made no offer of proof as to what Barber would have stated had she been allowed to answer the question.

“It is the appellant’s burden to create an adequate appellate record to support his claim. . . . The defendant has failed to meet this burden. If he wanted to provide this court with an adequate appellate record, he should have presented an offer of proof. An offer of proof, properly presented, serves three purposes. First, it should inform the court of the legal theory under which the offered evidence is admissible. Second, it should inform the trial judge of the specific nature of the offered evidence so the court can judge its admissibility. Third, it thereby creates a record adequate for appellate review.” (Internal quotation marks omitted.) State v. One 1993 Black Kenworth W-900 Truck, 41 Conn. App. 779, 788, 679 A.2d 13 (1996).

Our review of the record discloses that the defendant made no offer of proof as to what Barber’s answer would have been, he failed to provide the court with a basis to admit her testimony, and he failed to lay a foundation for that testimony. Thus, the defendant failed to provide an adequate record for appellate review, and we decline to review his claim. Id., 790.

We, therefore, conclude that the court properly exercised its discretion in sustaining the state’s objection to certain hearsay statements and that the defendant was not prejudiced by the court’s exercise of its discretion.

II

The defendant’s second claim is that the court improperly concluded that there was sufficient evidence to convict him of violation of probation. We disagree.

The defendant’s claim is based on conflicting evidence that he was the individual who sold narcotics to Logan on May 15, 1997. As previously stated, the defendant contended that the undercover officer purchased narcotics from Jeffrey Young. Although both men are African-Americans with similar physiques, at the time in question they were distinguishable by their denture. The defendant had two prominent, front gold teeth and Jeffrey Young did not. None of the police officers involved in the undercover purchase or surveillance noticed any gold teeth. The defendant’s gold teeth, however, were removable, and at times he did not wear them. The court, based its finding that the defendant violated his probation on Rodriguez’s testimony. Rodriguez knew Jeffrey Young prior to May 15, 1997, and testified that the person the officers stopped on that date was not Jeffrey Young.

“To support, a finding of probation violation, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation. State v. Davis, [supra, 229 Conn. 302], In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . This court may reverse the trial court’s initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling .... A fact is more probable than not when it is supported by a fair preponderance of the evidence.” (Citation omitted; internal quotation marks omitted.) State v. Rollins, 51 Conn. App. 478, 482, 723 A.2d 817 (1999). “It is the sole province of the trial court to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) State v. Martinez, 55 Conn. App. 622, 628, 739 A.2d 721 (1999).

On the basis of our review of the record, it is clear to us that the court based its finding that the defendant violated the terms of his probation on its determination of the credibility of the witnesses, which is solely within the province of the court. We, therefore, conclude that the court’s finding that the defendant violated his probation by violating the laws of this state was not clearly erroneous.

Ill

The defendant’s last claim is that the court improperly sentenced him to the unserved portion of his incarceration. The defendant argues on appeal that his selling $10 worth of crack cocaine was a minor offense that did not warrant the imposition of the remaining six years of his incarceration and that the evidence against him was weak. We are not persuaded.

The following additional facts pertain to our resolution of the defendant’s claim. At the time of sentencing, the defendant had a significant criminal record dating back to the 1980s, including convictions for narcotics and probation violations, failure to appear, assault, burglary and threatening. At the time of the probation revocation hearing, the defendant was on probation for another narcotics conviction, and yet another charge of narcotics violation was pending against him for a sale he allegedly made in 1998.

“[U]nder [General Statutes] § 53a-32, a probation revocation hearing has two distinct components. . . . The trial court must first conduct an adversarial eviden-tiary hearing to determine whether the defendant has in fact violated a condition of probation. ... If the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant’s probationary status should be revoked. On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation . . . [and] . . . require the defendant to serve the sentence imposed or impose any lesser sentence. ... In making this second determination, the trial court is vested with broad discretion.” (Internal quotation marks omitted.) State v. Rollins, supra, 51 Conn. App. 481-82.

“In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling . . . [and] [r]eversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. ... In determining whether to revoke probation, the trial court shall consider the beneficial purposes of probation, namely rehabilitation of the offender and the protection of society. . . . The important interests in the probationer’s liberty and rehabilitation must be balanced, however, against the need to protect the public.” (Citations omitted; internal quotation marks omitted.) State v. Bostwick, 52 Conn. App. 557, 563-64, 728 A.2d 10, appeal dismissed, 251 Conn. 117, 740 A.2d 381 (1999).

On the facts of this case, we conclude that the court did not abuse its discretion in revoking the defendant’s probation and sentencing him to the remaining six years of incarceration on the underlying conviction. The defendant has an ongoing criminal history in excess of ten years in duration. He does not comprehend that his failure to refrain from selling narcotics is behavior that society cannot tolerate. The court acted well within the bounds of its discretion in concluding that the rehabilitative purposes of the defendant’s probation were not being met.

The judgment is affirmed.

In this opinion the other judges concurred.

       Our recently adopted rules of evidence do not apply to sentencing and probation proceedings. Conn. Code Evid. § 1-1 (d) (3) and (4).

       That, policy has been codified in the Federal Rules of Criminal Procedure, which permit federal judges to consider reports prepared by probation officers. See Fed. R. Crim. P. 32.

       During the course of direct examination, the court interrupted, advised Jeffrey Young of his rights and appointed a special public defender to represent him.

       Exhibit B for identification stated: “To whom it may concern I Jeffrey B. Young was stop on Egdwood St and sold a ten dollar rock to an uncover officers and when they grab me I used my Brother Raymond Young name and address and they let me go and a week later they came to the address i gave then looking for my Brother and then he turned his self in.”

       On direct examination by defense counsel, Jeffrey Young testified, in part, as follows:
      “Q. Okay. But there was a specific time that you used [the defendant’s] name, correct?
      “A. I don’t know what all that specific — what you mean when you say specific? I used it. I don’t know what days it was, I don’t know what times it was. I was outside, the police stopped me, I used his name. I used my other brothers’ name, whichever name came to my head at the time I was getting stopped, that’s the name I used.
      “Q. Okay. Do you recall specifically making a statement that was notarized?
      “A. I plead the fifth to that one.
      * * *
      “Q. Do you recall making that statement?
      “A. Not in that sense, no. I’m saying the way this statement is wrote, if I did sell to an undercover officer, how would I have the knowledge that he’s undercover? It ain’t like I was standing there going, ‘Oh, there’s an undercover officer, let me sell to him.’
      “Q. Hold on for a second, Mr. Young. The question is do you recall signing this statement that’s before you?
      “A. No. I plead the fifth to that.
      “Q. So it’s your testimony [that] any question I ask you about that statement, you’re going to plead the fifth?
      “Q. Yes.
      * * *
      “[Defense Counsel:] Your Honor, I’d like to make a complete record on this. I think under [State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986)], this can come [into evidence]. And one of the requirements of Whelan is that the declarant is unavailable. And clearly [it has] been defined by case law that unavailable means if in fact a defendant or a witness asserts a privilege, which we have in this case. So therefore he’s unavailable for testimony. [It has] been signed ... [it has] been notarized ....
      “The Court: You’re asking the court to make a ruling [on] a piece of paper that you haven’t even laid a foundation as to what is in that paper.
      * * *
      “Q. On the thirtieth day of June, 1997, is it your testimony you do not recall making a signed statement in the presence of [notary] Dolores Lamar?
      “A. No, I plead the fifth to that. Don’t ask me questions about that.
      “Defense Counsel: As you can see, Your Honor, he’s not going to answer any questions about this statement. [It has] been signed, [it has] been notarized, [it has] been signed by this defendant. It’s impossible to lay a foundation absent bringing the notary in, which I will do if I have to.
      “[The Witness:] You said I signed it. I didn’t say I signed it. How are you going to say [it has] been signed by me?
      * * *
      “Q. Mr. Young, did you even have the occasion to make a statement to Ms. Dolores Lamar, who’s a notary?

        “A. I don’t know who that is. Never heard of that person. . . .
      “The Court: Mr. Young, I’m going to show you, [it has] been marked . . . exhibit B. Do you recognize this piece of paper at all?
      “A. No.
      “[The Witness:] I already told him that, too. I mean, I don’t want to keep sitting here. I’m not going to sit here and tell you I sold to an undercover officer. If he was, I didn’t know he was one. See what I’m saying? I was on the street, on drags, I was doing whatever I could do to get some K, period. Now, if I sold to an undercover officer, I have no knowledge of it. Ain’t nobody came to me and said I sold nothing to nobody. And I’m telling you I used his name a lot of times. Yes, I did, I used all my brothers’ names a lot of times. Simple. All that sold to an undercover, ain’t no undercover came to me and said I sold him nothing. For white people, lot of white people come to that street and buy stuff.”

       On appeal, the defendant also argued that the statement should have been admitted under (he exception to (he hearsay rule for statements against penal interest. We decline to review that argument because it was not raised in the trial court.

       In a footnote in his principal brief to this court, the defendant notes that a statement acknowledged by a notary public is self-authenticating. General Statutes §§ 1-29, 1-36; see Webster Bank v. Flanagan, 51 Conn. App. 733, 739, 725 A.2d 975 (1999). The defendant did not raise that claim at trial or include it in his argument on appeal. At trial, defense counsel stated that he would subpoena the notary to testify, but the notary did not testily.

       Jeffrey Young also testified at the probable cause hearing concerning the defendant’s revocation of probation. At the probation revocation hearing, the prosecutor cross-examined Jeffrey Young, in part as follows, using his testimony at the probable cause hearing:
      “Q. And do you recall being informed by the judge at that time that anything you say would—
      “A. Yes, sir.
      “Q. You could perjure yourself?
      “A. Yes, sir.
      “Q. And do you recall also when the court asked you, were you the one the police should have arrested rather than your brother [the defendant} selling drugs, and you said: ‘No, no, I’m not going to say that, no’?
      “A. Yes.
      “Q. And you were under oath at that time?
      “A. Yes, I was."

       We note that even if we were to review the defendant’s claim, it nevertheless would fail because he was not prejudiced by the court’s ruling. Even if Barber had been permitted to testify that Jeffrey Young had told her that he had used the defendant’s name, such testimony, at best, would have been cumulative of Jeffrey Young’s testimony that he had used the defendant’s name when he was stopped by police and that he had sold narcotics. Further, the court permitted the defendant, through Barber, to offer into evidence a letter written by the defendant’s mother, which stated that Jeffrey Young had used his brother’s name and that the police had stopped him on Edge-wood Street.

       The court st ated: “The court makes a finding that the state has sustained its burden of proof. That it in fad had been proved that the defendant is in violation of his probation by a preponderance of the evidence. I agree fully with [defense counsel] that this is a credibility issue. And Officer Rodriguez testified, based on, I believe, five years experience as a police officer, his preacquaintance with Jeffrey Young, prior to the night of May 15, 1997, and his testimony under oath, and his certainty that he did not in fact stop Jeffrey Young on May 15, 1997.”

       The defendant was acquitted of the narcotics charges with which he was charged in relation to the sale of cocaine on May 15, 1997. See State v. Huey, supra, 199 Conn. 126. To prevail on a charge of probation violation, the state need only prove the violation by a preponderance of the evidence, not the higher standard of beyond a reasonable doubt that is required in a criminal proceeding. State v. Davis, 29 Conn. App. 801, 811, 618 A.2d 557 (1993), rev’d on other grounds, 229 Conn. 285, 641 A.2d 370 (1994).


author: MIHALAKOS, J.

text:
    DOROTHY M. WEISS v. ROBERT L. BERGEN, JR.
    (AC 21112)
    Landau, Mihalakos and O’Connell, Js.

      Submitted on briefs April 6
    officially released June 19, 2001

      Frederick L. Murolo, Marc J. Ubaldi and Karen T. Gerber filed a brief for the appellant (defendant).

      KevinE. Creed filed a brief for the appellee (plaintiff).
   Opinion

MIHALAKOS, J.

The defendant, Robert L. Bergen, Jr., appeals from the judgment of the trial court rendered following the granting in part of the motion for additur filed by the plaintiff, Dorothy M. Weiss, which proposed an increase in the jury award by $3000 in this personal injury action. The defendant’s sole claim on appeal is that the court improperly granted the motion. We agree with the defendant and, therefore, reverse the judgment and remand the case to the trial court with direction to reinstate the jury award.

The following facts are relevant to our resolution of the defendant’s claim. On October, 29,1998, the plaintiff and the defendant were involved in a two car motor vehicle accident in Beacon Falls. Thereafter, the plaintiff initiated an action alleging that she had sustained personal injuries as a result of the defendant’s negligence. The plaintiffs mouth and arm had been injured as a result of the accident. She had been visiting a chiropractor prior to trial for treatment concerning neck pain.

On May 10,2000, the jury returned a verdict in favor of the plaintiff and awarded her $8300 — $5800 in economic damages and $2500 in noneconomic damages. Thereafter, the plaintiff filed a motion for an additur. After conducting a hearing, the court granted the plaintiffs motion and ordered an additur of $3000. The defendant refused the additur and, thereafter, the court set aside the verdict and ordered a new trial. The defendant brought this appeal.

The court, responding to the defendant’s motion for articulation concerning the additur, stated that “the award of $2500 in noneconomic damages is inconsistent with the conclusions the jury must have drawn concerning the plaintiffs injuries, as evidenced by the jury’s award of $5800 in economic damages, and that the award of $2500 for noneconomic damages is inadequate” to compensate the plaintiff for past, as well as future, pain and suffering.

We begin by noting that “[t]he right to a jury trial is fundamental in our judicial system, and [our Supreme Court] has said that the right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court. . . . Because in setting aside the verdict, the trial court deprives the party in whose favor the verdict was rendered of his constitutional right to have factual issues resolved by the jury, our role generally is to examine the evidential basis of the verdict itself to determine whether the trial court abused its discretion.” (Citation omitted; internal quotation marks omitted.) Wickers v. Hatch, 252 Conn. 174, 188, 745 A.2d 789 (2000). Accordingly, “we review a decision of the trial court setting aside the verdict and ordering an additur to determine whether the trial court properly exercised its discretion.” Id., 181; Childs v. Bainer, 235 Conn. 107, 113, 663 A.2d 398 (1995).

“The amount of damages awarded is a matter peculiarly within the province of the jury . . . .” Parasco v. Aetna Casualty & Surety Co., 48 Conn. App. 671, 675, 712 A.2d 433 (1998). “The only practical test to apply to a verdict is whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, mistake or corruption.” (Internal quotation marks omitted.) Id., 675-76; Childs v. Bainer, supra, 235 Conn. 114. “A fact finder is not required to award noneconomic damages simply because economic damages are awarded.” Parasco v. Aetna Casualty & Surety Co., supra, 676.

“On issues where the evidence allows room for reasonable differences of opinion among fair-minded people, if the conclusion of the jury is one that reasonably could have been reached, it must stand even though the trial court might have reached a different result.

... A verdict should not be set aside . . . where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion.” (Citation omitted; internal quotation marks omitted.) Id.

In the present case, the jury was free to believe reasonably, based on the evidence presented, that $2500 in noneconomic damages was sufficient to compensate the plaintiff for pain or suffering up to the point of trial, as well as any future pain and suffering. There was no evidence presented at trial that would lead the court to find the jury award so shocking to our sense of justice as to compel the court to award an additur. Because the “[t]he difference between the amounts of the economic and the noneconomic damages awarded creates no inherent ambiguity” in a jury award; id.; we cannot agree with the court’s finding that the jury’s award of noneconomic damages was inadequate in comparison to its award of economic damages. When determining whether to order an additur, the court should not assume that the jury made a mistake, but should suppose that the jury did exactly what it intended to do. See Wickers v. Hatch, supra, 252 Conn. 188-89. We are, therefore, persuaded that the damages awarded by the jury are supported by the evidence presented at trial and fall within the necessarily uncertain limits of fair and reasonable compensation. Accordingly, we conclude that the trial court failed to properly exercise its discretion by finding the jury award to be inadequate and ordering an additur.

The judgment is reversed and the case is remanded with direction to reinstate the jury’s verdict and to render judgment thereon.

In this opinion the other judges concurred.

       The defendant subsequently filed a posttrial motion for a reduction of the verdict to account for collateral source payments to the plaintiff. The court granted the motion and reduced the verdict by $495.75, resulting in a net award of $7804.25.