author: SPEAR, J.

text:
    MIDDLETOWN COMMERCIAL ASSOCIATES LIMITED PARTNERSHIP ET AL. v. CITY OF MIDDLETOWN ET AL.
    (14288)
    Dupont, C. J., and Spear and Hennessy, Js.

      Argued February 27
    officially released August 6, 1996

      Robert B. Shapiro, with whom was Holly Jean Bray, for the appellants (plaintiffs).

      Dennis C. Cavanaugh, with whom were Trina A. Solecki, city attorney, and, on the brief, Robert M. Barrack, for the appellees (named defendant et al.).

      Glenn E. Coe, with whom was Kerrie Dunne, for the appellee (defendant One Court Street, Inc.).
   SPEAR, J.

The issues in this case turn on whether the plaintiffs, owners of the River View Shopping Center Mall in Middletown, have any rights by virtue of a 1965 parking agreement between the original mall developer and the city of Middletown. In 1993, the capacity of the subject parking garage was reduced from 600 parking spaces as specified in the parking agreement to 365 spaces. After this reduction, the plaintiffs brought suit claiming to be successors in interest to the original developer and now appeal from the judgment in favor of the defendants. They assert that the trial court improperly (1) concluded that the plaintiffs could not enforce the parking agreement because it was never assigned to them, (2) found that even if the agreement was enforceable, there was no breach because the city has provided sufficient parking spaces to satisfy the plaintiffs’ parking needs, (3) found that the parking agreement did not create an easement appurtenant, (4) found that the city had not taken the plaintiffs’ easement or contract lights without just compensation, (5) found no breach of the implied covenant of good faith and fair dealing that arose out of the contractual relationship between the plaintiffs and the city, (6) failed to find that the city had ratified the parking agreement, (7) concluded that the plaintiffs could not assert the doctrine of equitable estoppel as a cause of action and (8) denied the plaintiffs’ request to amend the complaint to add their transferee as a party plaintiff. We conclude that the plaintiffs have enforceable rights in the 1965 parking agreement, not by virtue of an easement, but as successors in interest to the original developer. Accordingly, we reverse the judgment.

The trial court found the following facts. On or about May 4, 1959, the common council of Middletown approved a redevelopment project whereby the city was to acquire, clear and develop three parcels of land, later designated as AA, AB and AC. The parcels were adjacent to one another with AB being the middle piece. The redevelopment plan obligated the city to provide a multilevel parking facility on parcel AB (garage parcel).

On or about March 6,1963, the River Valley Development Corporation (redeveloper) entered into an agreement with the city whereby the redeveloper would purchase and develop parcels AA and AC. On October 9, 1963, the redeveloper and the city entered into a parking agreement by separate instrument. Pursuant to this agreement, the city was required to construct a parking garage for not less than 600 cars on the garage parcel and to operate and maintain that facility. The redeveloper was given rights of ingress and egress as well as one hour of free parking for customers of its tenants. In return for these privileges, the redeveloper agreed to pay the city a minimum fee of $9000 per year for the first 150,000 parking hours with a schedule of increased payments for parking hours in excess of 150,000 per year. The thirty-five year term of the parking agreement commenced upon the opening of a Sears store on April 19, 1965.

In 1989, the plaintiffs acquired parcel AA and the south two thirds of parcel AC. In 1990, the state department of public works (DPW) published a request for proposals to construct a new courthouse in Middle-town. On April 16, 1991, the DPW approved One Court Street’s proposal to construct the courthouse on the north third of parcel AC. In December, 1991, One Court Street obtained title to the north portion of parcel AC and the north portion of the garage parcel for construction of a courthouse and a parking facility. After acquiring the north portion of the garage parcel from the city, One Court Street demolished approximately one third of the parking garage to make room for the new courthouse and its parking garage. Additional facts will be developed as necessary for the resolution of the issues.

In this action, the plaintiffs claim that the city and One Court Street breached the plaintiffs’ contract rights as successors in interest to the parking agreement and wrongfully took, or interfered with, their rights as owners of an easement appurtenant in the garage parcel. At trial, the court bifurcated the issues of liability and damages. The trial court found that the defendants were not liable because the plaintiffs had no right to enforce the contract and the parking agreement did not create an easement that ran with the land. Earlier in the proceedings, the trial court, J. Walsh, J., had granted summary judgment for the defendant One Court Street on the fifth count of the plaintiffs’ complaint that alleged that One Court Street was equitably estopped from denying that there was a binding parking agreement. The tiial court found for the defendants on the remaining counts of the plaintiffs’ complaint and this appeal followed.

I

The plaintiffs first claim that they are entitled to enforce the parking agreement because they are successors in interest to the original developer. The trial court did not directly address this claim. Rather, the trial court found that the plaintiffs had no right to enforce the agreement because there was no privity of contract with the defendants and the parking agreement had never been assigned to the plaintiffs.

The complaint expressly alleges that the plaintiffs are “successors-in-interest to the Redeveloper,” not that they are assignees. At trial and on appeal, the plaintiffs expressly disavow any claim that they are assignees of the parking agreement. In support of their claim that they are successors in interest, the plaintiffs rely primarily on Safer v. Perper, 569 F.2d 87 (D.C. Cir. 1977).

In Safer, Winthrop Lawrence Corporation (Winthrop) signed a contract with the Donohoe Construction Company (Donohoe) whereby Donohoe was to erect a motel. Somerset Properties Limited Partnership (Somerset) thereafter leased the land on which the motel was erected and took title to the improvements. The construction contract was never assigned to Somerset. The construction contract provided in pertinent part: “ ‘The owner and the contractor each binds himself, his partners, successors, assigns, and legal representatives to the other party hereto’ . . . .” Id., 94. As part of a multiparty action, Somerset, which had previously paid Donohoe $205,079.58 to discharge its mechanic’s hen, sought damages from Donohoe for construction defects. Donohoe moved for summary judgment, claiming that Somerset was not in privity of contract with it and, therefore, could not recover. The trial court denied the motion, ruling that Somerset was the successor in interest of Winthrop and, therefore, had the capacity to recover on the contract.

In determining whether Somerset was a successor in interest, the Court of Appeals for the District of Columbia noted that successor in interest “is a [term] with many legal applications and that it is therefore difficult to define precisely. ... To determine the meaning of ‘successor [in interest]’ in the area of labor law, Mr. Justice Marshall appears to endorse a case-by-case approach with emphasis on the facts of each case. . . . The same fact-oriented approach has also been employed by courts in defining the limits of purely contractual successorship. . . . ‘[Successor [in interest]’ has often been defined as ‘one who takes the place that another has left, and sustains the like part or character.’ ” (Citations omitted.) Id., 95.

The court noted that “[Somerset] ‘took the place’ that Winthrop ‘had left’ and ‘sustained the like part or character.’ ” Id. The court further stated, “Under the construction contract, it was the ‘part’ of Winthrop to pay money. It was [Somerset] who ultimately completed this obligation. Thus, with respect to the very obligations created by the construction contract itself, [Somerset] occupied the place that Winthrop abdicated. Not only did [Somerset] ‘sustain the like part’ as Winthrop, it sustained the very same part as Winthrop. . . . Thus, there is a high degree of similarity in role and interest between Winthrop and [Somerset], Under the facts presented by this case ... we hold that [Somerset] was the successor of Winthrop.” (Emphasis added.) Id., 95-96. The court then concluded that Somerset, “as successor [in interest] to Winthrop, has a right of action against Donohoe for breach of the construction contract . . . .” Id., 98.

We find the reasoning of Safer persuasive. Pursuant to the parking agreement, the original redeveloper here was obligated to pay only for the parking privileges for its tenants and their customers. The plaintiffs, in sustaining a like part or character as the original redevelopers, are obligated to pay only pursuant to the schedule set forth in the agreement. The plaintiffs have paid the agreed amount in return for the parking privileges. Under the factual circumstances here, we discern no reason why the plaintiffs should not be considered successors in interest to the original developer.

The city’s claim that the use of the words “successors and assigns” in the parking agreement merely makes the agreement assignable is not supported by citation to any case law. The defendants cite 6 Am. Jur. 2d, Contracts § 10 (1963), and 3 Restatement (Second), Contracts § 323, comment (b) (1991), for the proposition that the use of words such as “successors” can indicate the parties’ intention that the contract be assignable. Nothing in the cited material suggests, however, that there can be no successors in interest without an assignment.

The plaintiffs are not strangers to the contract. The city accepted monthly payments totaling $9000 per year from the plaintiffs without objection. Our Supreme Court has said: “One enjoying rights is estopped from repudiating dependent obligations which he has assumed; parties cannot accept benefits under a contract fairly made and at the same time question its validity.” Schwarzschild v. Martin, 191 Conn. 316, 321, 464 A.2d 774 (1983); see also Sawmill Brook Racing Assn., Inc. v. Boston Realty Advisors, Inc., 39 Conn. App. 444, 451, 664 A.2d 819 (1995). Although the city has not challenged the validity of the parking agreement, it posits two reasons why estoppel should not apply.

First, the trial court ruled that the $9000 per year payments “are the functional equivalent of the payment of rent” and that the “arrangement between the city and the defendants can best be categorized, de facto, as a month-to-month tenancy.” Our review of the evidence discloses nothing that would support such conclusions.

Second, the defendants claim that the city accepted the payments in consideration for free monthly parking for Sears employees, rather than pursuant to the parking agreement. The trial court made no such finding. Moreover, the evidence on which the defendants rely indicates only that representatives of the city were of the unilateral opinion that the payments were for parking for the Sears employees. We discern no reason why the estoppel principle enunciated in Schwarzchild and Sawmill Brook should not apply to the city’s claim that it may accept the plaintiffs’ payments, yet incur no obligations pursuant to the parking agreement.

The defendants further claim that the word “successor” means one who takes property pursuant to the laws of descent and distribution. Because the plaintiffs did not take the property pursuant to the laws of descent and distribution, the defendants assert that they cannot be successors. The defendants rely on the following language from this court: “The term ‘successor’ is defined as ‘[o]ne who takes the place of another by succession.’ Black’s Law Dictionary (5th Ed.). Succession refers to ‘[t]he devolution of title to property under the law of descent and distribution . . . the word when applied to realty denotes persons who take by will or inheritance and excludes those who take by deed, grant, gift or any form of purchase or contract.’ Id. Thus, a successor, as applied to realty, is one who takes by will or inheritance, rather than by deed, grant, gift, purchase or contract. In contrast, a successor in interest is ‘one who follows another in ownership or control of property’; id.; and does not exclude those who take by deed, grant, gift, purchase or contract.” Drazen Properties Ltd. Partnership v. E. F. Mahon, Inc., 19 Conn. App. 471, 475, 562 A.2d 1142 (1989).

In asserting this claim, the defendants ignore the fact that the plaintiffs have always claimed to be successors in interest, not successors. The defendants also ignore the distinction made in Drazen between successors and successors in interest. Drazen interpreted General Statutes § 47-19, a statute relating only to real property where “the purpose of the statute is to protect creditors and bona fide purchasers from being bound by unrecorded leases of more than one year.” Id., 475. “The statute specifically excluded ‘heirs, successors, administrators and executors’ of the original lessor and lessee from its protection. To conclude that the term ‘successors’ refers to all successors in interest to the original lessor or lessee would thwart the purpose of the statute. Creditors and bona fide purchasers also may be successors in interest to the original lessor or lessee and, thus, such an interpretation would potentially except those who the statute is designed to protect.” Id., 476. Nothing in Drazen supports a proposition that one may be a successor in interest only with respect to real property acquired by the laws of descent and distribution.

The trial court improperly concluded that the plaintiffs had no rights in the parking agreement. We must, therefore, address the question of whether the contract was breached.

II

The trial court ruled that even if the plaintiffs had rights in the contract, there was no breach by the city. This conclusion was based on the court’s interpretation that the contract requires that “a reasonable number of spaces” be available for the plaintiffs’ tenants and customers and its further finding that “since the advent of the parking agreement, there are hundreds more spaces in the vicinage of the project area. These include the reopened Arcade, the Metro parking area, the Middlesex Mutual parking garage, the newly opened courthouse garage and the spaces available in the parking areas enterable from Washington Street and Court Street lying between the Main Street stores and the old courthouse.” Because of these spaces, the trial court found that there were “a reasonable number of parking spaces in the vicinage to accommodate the needs of tenants of the plaintiffs” and, therefore, the requirements of the parking agreement were satisfied.

The parking agreement does not state how many spaces must be made available for the plaintiffs’ tenants and customers. “The interpretation of a contract term that is not so clear as to render its interpretation a matter of law is a question of fact, subject to the clearly erroneous standard of review. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.” (Citations omitted; internal quotation marks omitted.) Larsen v. Jacobson, 38 Conn. App. 186, 189, 659 A.2d 753 (1995).

The trial court used the method of examining the available parking in the vicinage to arrive at its conclusion that the parking agreement terms were satisfied. The court’s conclusion is not legally correct because the issue before it was whether the parking garage had a sufficient number of spaces pursuant to the agreement, not whether such parking was available elsewhere. The purpose of the parking agreement between the original redeveloper and the city was to provide convenient parking for the shopping center with at least one hour of free parking for the shopping center customers. This is precisely what the original redeveloper bargained for in return for the $9000 per year minimum payment to the city.

The plaintiffs make no claim that they are entitled to the exclusive use of all of the parking spaces. Clearly, the agreement gives the plaintiffs no such rights. We agree with the trial court’s legal interpretation that the parking agreement does not give the plaintiffs exclusive rights to any particular number of parking spaces, but does require that the city make available to the plaintiffs a reasonable number of spaces consistent with their needs. We disagree with the trial court’s conclusion that those spaces may be located elsewhere than the garage.

On remand, in determining whether the city breached the contract, the trial court should take into account all of the circumstances surrounding the parking needs of the plaintiffs, including, but not limited to, automobile traffic into the garage, the number of parking validations, the number of tenants and their particular parking requirements.

The plaintiffs make two other related contract claims: (1) that the city violated the covenant of good faith and fair dealing that is implicit in all contracts, and (2) that the city “took” its rights in the contract without paying just compensation.

The trial court did not decide whether the defendants had breached the implied covenant of good faith and fair dealing because it concluded that the plaintiffs had no rights in the parking agreement. Because we conclude otherwise, the trial court should address this claim on remand.

Resolution of the “taking” claim is unnecessary in view of our earlier conclusion that the plaintiffs may enforce the agreement. If the trial court finds that the city’s actions do not constitute a breach of the contract, those same acts could not be found to be a “taking” of the plaintiffs’ contract rights that would warrant compensation. This is so because a finding of no breach would mean that the remaining garage spaces are sufficient to satisfy the contract, in effect, that nothing was “taken” from the plaintiffs. Conversely, we discern no meaningful difference in the factors that the trial court would consider in assessing damages for the breach of the contract and the factors that would be considered in determining just compensation for a “taking” of the plaintiffs’ contract rights.

Ill

A

The plaintiffs claim that the parking agreement created an easement that ran with the land. The trial court rejected this claim. The plaintiffs primarily rely on paragraph six of the agreement which states: “This parking agreement shall inure to and be binding upon the successors and assigns of the parties hereto.” The plaintiffs assert that the rights provided by the parking agreement added value to parcels AA and AC, that the defendants had notice of an easement and that the defendants recognized the plaintiffs’ rights thereunder. They argue that these factors support their claim that an easement appurtenant was created. See Kelly v. Ivler, 187 Conn. 31, 42-43, 450 A.2d 817 (1982); Leabov v. Leninski, 182 Conn. 611, 614, 438 A.2d 1153 (1981). We agree with the trial court’s conclusion that the parking agreement did not create an easement.

The plaintiffs’ rights of ingress, egress and parking are much more akin to a license than an easement. “[A] license in real property is a mere privilege to act on the land of another, which does not produce an interest in the property .... Since a license does not convey a possessory interest in land ... a license does not run with the land to bind a subsequent purchaser.” (Citations omitted.) Clean Corp. v. Foston, 33 Conn. App. 197, 203, 634 A.2d 1200 (1993).

“[A]n easement implies an interest in land, which ordinarily is created by grant and is permanent .... In determining whether an interest relating to real property is a lease, easement or license, the intent of the parties is the controlling factor.” 25 Am. Jur. 2d, Easements and Licenses § 137 (1996). The parking agreement does not use the language of grant, nor is it executed with the formalities normally associated with the grant of an interest in real property. The word “easement” is not used in the parking agreement. Moreover, the general public has virtually the same rights of ingress and egress as do the plaintiffs. The only significant difference is that the plaintiffs do not pay for the first horn of parking for noncustomers. We note also that the parties created the parking agreement by way of a separate instrument. In the redevelopment agreement between the city and the original redeveloper, there are covenants that run with the land, indicating clearly that the parties were aware of how to create such obligations. The fact that they chose not to do so with respect to the parking garage agreement strongly indicates that there was no intent to create an easement. We conclude that the trial court’s finding that the parties did not create an easement is factually and legally correct.

B

Because we conclude that the parking agreement did not create an easement, the plaintiffs’ claims that the easement was taken by the city without payment of just compensation need not be discussed.

IV

A

The plaintiffs also claim that One Court Street was liable for breach of the parking agreement. The trial court disposed of that issue in summary fashion by stating that “[t]here has never been an assignment of any contractual rights in the parking agreement and no assumption of any contractual obligations, under said agreement, by One Court Street.”

The linchpin of the plaintiffs’ claim against One Court Street is that it entered into the agreement with the defendant city to acquire a part of the parking garage with full knowledge of the parking agreement. The plaintiffs rely primarily on K-Mart Corp. v. First Hartford Realty Corp., 810 F. Sup. 1316 (D. Conn. 1993). There, the court found a transferee lessor liable to a lessee for performing the terms of the lease because the transferee had actual knowledge of the terms of that lease at the time it purchased the property.

In the present case, the trial court made no finding whether One Court Street purchased the property with notice of the parking agreement and the plaintiffs did not ask the court to articulate with respect to the issue of notice. “It is the responsibility of the appellant to provide an adequate record for review.” Practice Book § 4061; see also State v. Arisco, 39 Conn. App. 11, 15, 663 A.2d 442 (1995). Because the plaintiffs have failed to present an adequate record, we are unable to review their contract claim against One Court Street.

B

The plaintiffs also claim that the trial court improperly granted summary judgment in favor of One Court Street on the equitable estoppel count of the plaintiffs’ complaint. The trial court ruled that equitable estoppel may not be pleaded as a cause of action, and, therefore, the count failed to state a cause of action.

“[T]here are two elements which must be established in order to find an estoppel: one party must do or say something that is intended or calculated to induce another into believing in the existence of certain facts and to act upon that belief, and the other party must thereby actually change his position or do some act to his injury which he otherwise would not have done. . . . Estoppel rests on the misleading conduct which results in prejudice to the other and absent such prejudice an estoppel cannot exist.” (Citations omitted.) John F. Epina Realty, Inc. v. Space Realty, Inc., 194 Conn. 71, 85, 480 A.2d 499 (1984).

We agree with the trial court’s conclusion but for a different reason. Our review of the complaint reveals that it completely lacks any factual allegations that One Court Street did anything to mislead the plaintiffs or to induce them into believing in certain facts or to act to their detriment. The conclusory allegations of the complaint axe devoid of facts that state the elements of estoppel. The only reference to any facts is an allegation that the city acted, in part, as agent for One Court Street without attributing any specific acts to One Court Street. It is proper for us to affirm the trial court’s correct result on other grounds if the same result is required by law. Williams v. Commissioner of Correction, 41 Conn. App. 515, 530, 677 A.2d 1 (1996); Brunswick v. Inland Wetlands Commission, 25 Conn. App. 543, 554, 596 A.2d 463 (1991), rev’d on other grounds, 222 Conn. 541, 610 A.2d 1260 (1992).

V

The plaintiffs’ last claim is that the trial court improperly refused to allow them to amend their complaint to add Middletown Realty Associates Limited Partnership as a party plaintiff. The motion is dated September 2, 1994 and the trial was scheduled to commence on September 13, 1994.

“The decision whether to grant a motion for the addition or substitution of a party to legal proceedings rests in the sound discretion of the trial court. ... In reviewing the trial court’s exercise of that discretion, every reasonable presumption should be indulged in favor of its correctness . . . .” (Citations omitted; internal quotation marks omitted.) Wicker Mfg. Co. v. Currier Electric Co., 25 Conn. App. 751, 760, 596 A.2d 1331 (1991); see also Avon Plumbing & Heating Co., Inc. v. Fey, 40 Conn. App. 351, 356, 670 A.2d 1318 (1996). “We reverse discretionary rulings of the trial court only where such discretion has been abused and has caused prejudice or injustice.” Whalen v. Ives, 37 Conn. App. 7, 20, 654 A.2d 798 (1995). The trial court denied the motion to amend without comment and the plaintiffs did not request an articulation. On this record, we find nothing to support the plaintiffs’ claim that the denial of this late request to amend was an abuse of the trial court’s discretion.

VI

The city claims three alternate grounds for affirming the trial court’s judgment: (1) the applicable statute of limitations bars the plaintiffs’ claims; (2) the plaintiffs waived any rights they might have in the parking agreement by not protesting the city’s monthly parking agreements that reduced the number of spaces available to the plaintiffs’ customers and tenants; and (3) the doctrine of sovereign immunity precludes relief against the city.

The city claims that because the original parking garage provided 565 rather than 600 spaces, there was a breach of the contract when the garage opened in 1965. The city asserts that because the plaintiffs failed to bring an action within six years after the garage opened, any breach of contract claim is now barred by the statute of limitations. The trial court did not make a finding that the city breached the contract by constructing a garage that provided only 565 spaces. Without a predicate finding that the contract was breached, the statute of limitations claim cannot be evaluated because the right of action accrues at the time of the breach. See Beckenstein v. Potter & Carrier, Inc., 191 Conn. 150, 156, 464 A.2d 18 (1983); Gaylord Hospital v. Massaro, 5 Conn. App. 465, 467, 499 A.2d 1162 (1985).

The second alternate ground, waiver by the plaintiffs by not protesting the monthly parking arrangements, is without merit. No one disputes the trial court’s conclusions that the plaintiffs are not entitled to the exclusive use of any particular spaces. It would be illogical to conclude that the plaintiffs waived their rights by not protesting monthly parking agreements for particular spaces to which they have no claim.

Because the city’s claim with respect to sovereign immunity was not briefed, we consider it abandoned. Gallagher v. Gallagher, 29 Conn. App. 482, 484, 616 A.2d 281 (1992); Papagorgiou v. Anastopoulous, 29 Conn. App. 142, 148, 613 A.2d 853, cert. denied, 224 Conn. 919, 920, 618 A.2d 527 (1992).

The judgment is reversed only as to the defendant city and the case is remanded for further proceedings to determine whether the city breached the parking agreement and, if so, the damages to which the plaintiffs are entitled.

In this opinion the other judges concurred.

       The plaintiffs are Simon Konover and Middletown Commercial Associates Limited Partnership.

       Although the parking agreement required the city to construct and maintain a 600 car garage, the trial court found that the number of parking spaces did not exceed 565.

       The defendants are the city of Middletown, the Middletown parking authority and One Court Street, Inc. The trial court found that the Middle-town parking authority is an agency of the city and the plaintiffs make no assertion that the parking authority is liable independently. References to the city include the parking authority.

       There were numerous intervening transfers of parcels AA and AC to various entities prior to the plaintiffs’ acquisition.

       The proposal was submitted by a team associated with One Court Street. For ease of reference, we refer to the proposal as that of One Court Street. The One Court Street team’s proposal was selected over a competing proposal that was submitted by Konover and Associates, Inc.

       Prior to the demolition, the plaintiffs sought unsuccessfully to erijoin the closing and demolition of the north portion of the garage parcel.

       The trial court reasoned that Somerset had such contract rights because it became the owner of the property. The Circuit Court of Appeals agreed that Somerset was a successor in interest, but that its contract rights arose because of its successor in interest status, not because it became the owner of the property.

       This resolution disposes of the plaintiffs’ equitable estoppel claims with respect to the city and its parking authority.

       General Statutes § 47-19 provides: “Leases for more than one year. No lease of any building, land or tenement, for life or for any term exceeding one year or which provides for the renewal thereof or an option to purchase such building, land or tenement, shall be effectual against any persons other than the lessor and lessee and their respective heirs, successors, administrators and executors, unless it is in writing, executed, attested, acknowledged and recorded in the same manner as a deed of land, provided a notice of lease in writing, executed, attested, acknowledged and recorded in the same manner as a deed of land and containing (1) the names and addresses, if any are set forth in the lease, of the parties to the lease, (2) a reference to the lease, with its date of execution, (3) the term of the lease with the date of commencement and the date of termination of such term, (4) a description of the property contained in the lease, (5) a notation if a right of extension or renewal is exercisable, (6) if there is an option to purchase, a notation of the date by which such option must be exercised and (7) a reference to a place where the lease is to be on file shall be sufficient.”

       Our determination that the plaintiffs may enforce the contract makes it unnecessary for us to resolve the claim that the city ratified the parking agreement.

        Collins v. Sears, Roebuck Co., 164 Conn. 369, 321 A.2d 444 (1973), may furnish helpful guidance with respect to the breach of contract issue. Collins involves the same parking garage as here and lease provisions between the original redeveloper and Sears regarding garage parking that are similar to the provisions of the parking agreement here. Sears claimed that it was partially evicted from the garage by the assignment of 103 to 350 of the 600 parking spaces to monthly parkers. The factors that the trial court considered in resolving that issue are similar to the factors that the trial court must consider in resolving the breach of contract issue here.

       The plaintiffs assert in their brief that “a takings claim may be premised upon the taking of contract rights.” They cite to 26 Am. Jur. 2d, Eminent Domain § 81 (1966), and two cases involving the taking of franchise rights, Gray Line Bus Co. v. Greater Bridgeport Transit District, 188 Conn. 417, 423, 449 A.2d 1036 (1982), and State v. Suffield & Thompsonville Bridge Co., 81 Conn. 56, 62, 70 A. 55 (1908). No analysis is offered as to how the plaintiffs’ contract rights here are akin to a franchise. We would decline to review this claim in any event because it is inadequately briefed. See State v. Prioleau, 235 Conn. 274, 664 A.2d 743 (1995); Drabik v. East Lyme, 234 Conn. 390, 662 A.2d 118 (1995).

       The plaintiffs had earlier applied for a temporary injunction seeking to prevent the partial destruction of the parking garage that was necessary to make way for the new courthouse facility. In denying that application the trial court, Austin, J., found that the parking agreement did not constitute an easement. In rendering judgment on the trial of the case, the trial court, Spa,Hone, J., adopted the reasoning of Judge Austin in finding that the parking agreement did not constitute an easement.

       This language is instructive even though the Clean Corp- court did not have to decide whether the contracts at issue created licenses. Clean Corp. v. Foston, supra, 33 Conn. App. 203 n.5. We also note that we did not determine in Clean Corp. whether the defendant transferee was bound because he accepted benefits under the contract. Such a claim had not been pled or proven at trial, therefore, the plaintiff could not properly raise it on appeal.

       The plaintiffs’ principal allegation in the subject count is that “[t]he City, as agent for One Court Street, has bound One Court Street by the terms of the parking agreement and One Court Street is estopped from denying that the parking agreement is valid and binding as between the plaintiff and the city.” (Emphasis added.)

       General Statutes § 52-576 provides that “[n]o action ... on any simple or implied contract, or in any contract in writing, shall be brought but within six years after the right of action accrues . . . .”


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. GENT LEE DANIELS
    (14306)
    Landau, Schaller and Hennessy, Js.

      Argued February 15
    officially released August 6, 1996

      Mary Miller Haselkamp, assistant public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David Gold, assistant state’s attorney, for the appellee (state).
   LANDAU, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l), assault in the third degree in violation of General Statutes § 53a-61 (a) (l) and unlawful restraint in the first degree in violation of General Statutes § 53a-95. On appeal, the defendant claims that the trial court improperly (1) abused its discretion by permitting the victim to testify about past incidents of sexual abuse, (2) abused its discretion by permitting the state to use a peremptory challenge to discharge a juror after the jury had been selected and (3) deprived him of his right to a fair trial by permitting the state to engage in prosecutorial misconduct. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. In June, 1991, the defendant, a music instructor at Southern Connecticut State University (SCSU), made plans with W, a student at SCSU, and Sharon Huie, a resident advisor at an SCSU dormitory, to go out for dinner. The defendant stated that he would arrive at Huie’s dormitory to pick up Huie and W between 8:30 and 8:45 p.m. He also offered to drive W to her home in Bridgeport after dinner. The defendant arrived at the dormitory at approximately 10:30 p.m. Because Huie had to go to work at 11 p.m., she could not join the others as planned. W and the defendant left and went to a local restaurant for dinner.

At approximately midnight, before driving her to Bridgeport, the defendant informed W that he wanted to stop at his house to pick up a tape to take to a friend who also lived in Bridgeport. Because W knew that the defendant was married and had a child, she willingly accompanied the defendant into his house to wait for him. Once inside, the defendant did not turn on any lights, and W remained in the living room while the defendant went into a back room. After a short while, the defendant returned to the living room and W noticed that he was now wearing cologne that he did not have on earlier that night.

The defendant sat on the sofa next to W and began touching her hair. Although W suspected that the defendant was making advances toward her, she rejected the notion because she believed that the defendant’s wife and child were asleep in the house. W then stood up, asked the defendant to take her home and began walking toward the door. The defendant grabbed her from behind by her shirt and pulled her back onto the sofa. W resisted the defendant and a struggle ensued. The defendant overpowered W and sexually assaulted her. W, who is asthmatic, had difficulty breathing and pleaded with the defendant to stop. When the defendant eventually stopped, the victim was bleeding. She went into the defendant’s bathroom where she washed blood from her legs and underwear. The defendant then drove the victim to Bridgeport.

W did not report the incident immediately. After a subsequent confrontation with the defendant the following November, however, W told friends what had happened in June and they convinced her to contact the police.

The jury convicted the defendant on December 2, 1993, and no direct appeal was taken. On April 27,1994, the defendant, pro se, filed a petition for a writ of habeas, corpus alleging that his lawyers’ errors resulted in the loss of his right to appeal.

On October 12, 1994, the habeas court accepted a stipulation in which the state and the defendant agreed that the defendant’s right to appeal should be restored and rendered judgment in accordance with the stipulation, and this direct appeal was filed. In State v. Phidd, 42 Conn. App. 17, 597 A.2d 846, cert. denied, 238 Conn. 907, 679 A.2d 2 (1996) (defendant sought certification to challenge decision on merits of appeal), we held that where a habeas petitioner raises a claim of ineffective assistance of appellate counsel arising out of a failure of counsel to file an appeal and the facts, either by evidence or stipulation, support a finding that the petitioner’s appellate rights were unconstitutionally compromised by counsel’s ineffective assistance, the habeas court may order the restoration of petitioner’s appellate rights as relief in the habeas action.

Because we adhere to the strong judicial policy embodied in the doctrine of stare decisis, we do not address the issue decided in Phidd. Rather, we follow our previous holding. Pursuant to Practice Book § 4135, however, we find that the following issues decided in Phidd involve substantial questions of law that should be reviewed by the Supreme Court: (1) whether a habeas court has authority to restore appellate rights, and (2) whether, if such authority exists, a habeas court may restore appellate rights based on its acceptance of a conclusory stipulation by the parties. We, therefore, request certification of these questions.

I

The defendant first claims that the trial court abused its discretion by allowing W to testify about two past incidents in which she was sexually assaulted by other men. The defendant asserts that the evidence was not relevant to the issue of whether the defendant sexually assaulted W, nor was it probative as to why she delayed in reporting this incident to the police. He also argues that the evidence was precluded by Connecticut’s rape shield statute, General Statutes § 54-86f.

During W’s direct testimony, the state inquired as to why she did not tell anyone about the alleged sexual assault earlier than she did. In response, W testified that she felt that no one would believe her because she had willingly entered the defendant’s house late at night and, because the defendant had told her that he was a state trooper, she believed that other police officers would support him. She also testified that she had twice been the victim of a sexual assault in the past and that, when she reported those incidents, nothing was done.

“It is well established that [t]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a clear showing of a clear abuse of the court’s discretion. . . . Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . [E]vidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree. . . . [T]he fact that evidence is susceptible of different explanations or would support various inferences does not affect its admissibility, although it obviously bears upon its weight. So long as the evidence may reasonably be construed in such a manner that it would be relevant, it is admissible. ...” (Citations omitted; internal quotation marks omitted.) State v. Bruno, 236 Conn. 514, 549, 673 A.2d 1117 (1996).

W’s testimony that she was twice sexually assaulted in the past and that on both occasions nothing was done after she reported those incidents could reasonably support an inference that she was reluctant to report the incident involving the defendant. Although W had already testified that she feared that no one would believe her because she had voluntarily entered the defendant’s house late at night and because she believed that the defendant was a state trooper, the proffered testimony clearly had a tendency to aid the jury in its determination as to why she delayed before reporting the incident to the police. We conclude, therefore, that the trial court did not abuse its discretion by admitting this testimony.

II

The defendant next claims that the trial court improperly granted the state’s request to allow it to exercise a peremptory challenge to dismiss a venireperson after she was accepted by both parties. He argues that, although the jury was not yet sworn, the venireperson could be dismissed only for cause, which did not exist here.

It is well settled that “[o]nce ajuror has been accepted by both parties, the absolute right to exercise a peremptory challenge is lost. Walczak v. Daniel, 148 Conn. 592, 596-97, 172 A.2d 915 (1961); DeCarlo v. Frame, 134 Conn. 530, 535, 58 A.2d 846 (1948); State v. Potter, 18 Conn. 166, 176 (1846). The trial court may, however, ‘in its discretion permit such a challenge to be made at any time before the jury is sworn. ’ Walczak v. Daniel, supra, 597, quoting DeCario v. Frame, supra. See also State v. Potter, supra, 176, in which our Supreme Court stated that ‘[o]ur practice gives one advantage to the prisoner, that if anything new has occurred since the juror was directed to take his seat as juror, the party will not be absolutely precluded from taking the benefit of it, as he is in England after he is sworn, unless by consent.’ . . .” (Citation omitted.) State v. Collins, 38 Conn. App. 247, 252-53, 661 A.2d 612 (1995).

After the jury was selected but not yet sworn, one venireperson contacted the trial court’s clerk to inform the court that she was employed by a law firm that had, in the past, represented another SCSU professor who had also been accused of sexual misconduct. Following this disclosure, the court allowed the parties to voir dire the prospective juror further. During the supplemental voir dire, the venireperson testified that her exposure to the previous matter left her dissatisfied with SCSU security police. She testified that she felt that the police “were too quick to make a judgment against the [other] professor without doing a further investigation” and that the professor had been wrongly accused. Although the venireperson also indicated to the court that she would view this case with an open mind, upon completion of the voir dire, the court allowed the state to exercise a peremptory challenge to dismiss her.

Under these circumstances, there is no question that ample grounds existed to allow the trial court to conclude that, if this information had come to light during jury selection, the state would have exercised a peremptory challenge to dismiss this prospective juror. For this reason, and because the jury had not yet been sworn, we conclude that the trial court properly exercised its discretion in permitting the state to exercise a peremptory challenge. See Walcazk v. Daniel, supra, 148 Conn. 596.

The defendant finally claims that comments made by the prosecutor during the cross-examination of the defendant’s wife and the closing argument constituted a pattern of “blatant misconduct” that was so severe and egregious that he was deprived of his right to a fair trial as guaranteed by article first, § 8, of the Connecticut constitution and the fourteenth amendment to the United States constitution. Because some of the defendant’s claims of misconduct were not preserved at trial, we will consider them apart from his claims that were preserved.

A

The Preserved Claims

The defendant complains that certain questions asked of Brenda Daniels, the sole defense witness, during cross-examination were improper because the state asked her to characterize the veracity of another witness’ testimony. During the cross-examination, the prosecutor asked Brenda Daniels whether she heard Huie testify that, because the defendant was late in arriving at the dormitory on the night of the incident, Huie had called the defendant’s home and received no answer. In reply, Brenda Daniels said that she had an answering machine that “I constantly leave on,” implying that if there had been a call that she would have known.

Upon objection by the defendant that this was an improper characterization of the evidence, the court overruled the objection because the question had been answered. In two succeeding questions, however, the prosecutor again asked whether the witness felt Huie was trying “to fudge the facts” and whether the witness felt that any other prosecution witnesses were “fudging the facts.” Although objections to both follow-up questions were sustained, the defendant contends on appeal that the questions themselves constituted prosecutorial misconduct because they improperly misled the jury into believing that if the testimony is conflicting, someone must be lying.

“In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, we focus on several factors: (1) the extent to which the misconduct was invited by defense conduct or argument; (2) the severity of the conduct; (3) the frequency of the conduct; (4) the centrality of the misconduct to the critical issues of the case; (5) the strength of the curative instructions adopted; and (6) the strength of the state’s case.” State v. Williams, 41 Conn. App. 180, 190, 674 A.2d 1372 (1996).

“Prosecutorial misconduct may occur in the course of cross-examination of witnesses . . . and may be so clearly inflammatory as to be incapable of correction by action of the court. ... In such instances there is a reasonable possibility that the improprieties in the cross-examination either contributed to the jury’s verdict of guilty or, negatively, foreclosed the jury from ever considering the possibility of acquittal.” (Citations omitted; internal quotation marks omitted.) State v. Williams, 204 Conn. 523, 538-39, 529 A.2d 653 (1987).

The state began the challenged questioning by noting that Brenda Daniels’ testimony differed from Huie’s because Huie did not mention an answering machine. To this, Brenda Daniels replied that Huie “can’t prove it.” It was the witness herself who first invited further inquiry by characterizing Huie’s testimony as false. The state merely followed-up by again asking whether the witness believed that Huie’s testimony was false, and then discontinued this line of questioning when two subsequent questions drew objections from the defendant that were sustained by the trial court. Thus, the questions as to whether Brenda Daniels believed that the state’s witnesses were “fudging the facts” were few and infrequent. Moreover, because the state’s questions were designed solely to elicit a reiteration of Brenda Daniels’ opinion as to the veracity of the testimony of other witnesses, they did not concern an issue that was central to the case. For these reasons, and when viewed in the context of the entire trial, we conclude that the state’s questions on cross-examination were neither inflammatory nor likely to have contributed to the guilty verdict. The state’s questions during the cross-examination of Brenda Daniels, therefore, did not constitute prosecutorial misconduct.

Next, the defendant complains that certain comments made by the prosecutor during the state’s rebuttal closing argument improperly shifted the burden to the defendant to prove his innocence. Specifically, the defendant takes issue with the following remarks: “The defense just doesn’t even propose anything, they just say that it is a doubt. It is not enough to argue doubt.” We note, however, that when the challenged remarks are read in context with the rest of the state’s rebuttal argument, the prosecutor was responding to and attempting to discredit the defendant’s closing statement in which the defendant argued that a reasonable doubt existed by virtue of W’s delay in reporting the incident. In effect, the state was suggesting to the jury that, although the defendant has the right to argue reasonable doubt, the defendant’s assertion that a reasonable doubt existed under the facts of this case was absurd.

“[I]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . .” (Citations omitted; internal quotation marks omitted.) State v. Richardson, 214 Conn. 752, 760, 574 A.2d 182 (1990). We conclude that, because the challenged remark was well within the scope of zealous and legitimate argument, it did not constitute prosecutorial misconduct.

B

Unpreserved Claims

The defendant complains that, during the state’s rebuttal closing argument, the prosecutor improperly-commented on the defendant’s right not to testify, invoked sympathy for the victim, and misstated the evidence and expressed his personal opinions. He claims that the prosecutor’s remarks “constituted a pattern of repeated and blatant misconduct” that deprived him of a fair trial.

Conceding that he failed to preserve these claims of misconduct properly, the defendant seeks review on appeal pursuant to State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 527 A.2d 823 (1989). Because the record is adequate for review and the defendant has alleged a claim of constitutional magnitude; see State v. Williams, supra, 204 Conn. 539 n.5; the first two prongs of Golding are satisfied. Hence, “[w]e will examine the defendant’s claim to determine whether the alleged constitutional violation clearly exists and whether it deprived the defendant of a fair trial. State v. Torrence, 196 Conn. 430, 435, 493 A.2d 865 (1985).” State v. Boyd, 36 Conn. App. 516, 524, 651 A.2d 1313, cert. denied, 232 Conn. 912, 654 A.2d 356, cert. denied, 516 U.S. 828, 116 S. Ct. 98, 133 L. Ed. 2d 53 (1995).

Our Supreme Court has held that “prosecutorial misconduct can occur in the course of closing argument. State v. Williams, [supra, 204 Conn. 539], In order to deprive a defendant of his constitutional right to a fair trial, however, the prosecutor’s conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. . . .Id., 539-40.” (Citations omitted; internal quotation marks omitted.) State v. Atkinson, 235 Conn. 748, 768-69, 670 A.2d 276 (1996).

Our review of the record leads us to conclude that, when the allegedly improper remarks made by the prosecutor on rebuttal are considered in light of the entire trial, further review of the defendant’s claim of prosecutorial misconduct is unwarranted. State v. Castonguay, 218 Conn. 486, 508, 590 A.2d 901 (1991); State v. Hanks, 39 Conn. App. 333, 347, 665 A.2d 102, cert. denied, 235 Conn. 926, 666 A.2d 1187 (1995); State v. Nieves, 36 Conn. App. 546, 554, 653 A.2d 197, cert. denied, 232 Conn. 916, 655 A.2d 260 (1995). Assuming, arguendo, that the challenged comments were improper, they were not representative of a blatant and egregious pattern of misconduct that either “deprive[d] the defendant of a fair trial; see State v. Golding, supra, 213 Conn. 239-40; or otherwise implicate[d] the fairness and integrity of and public confidence in the judicial proceedings. See State v. Day, 233 Conn. 813, 849, 661 A.2d 539 (1995).” State v. Chance, 236 Conn. 31, 64, 671 A.2d 323 (1996).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in pertinent part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force . . . .”

       General Statutes § 53a-61 (a) provides in pertinent part: “A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury . . .

       General Statutes § 53a-95 (a) provides: “A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury."

       On November 23, 1994, the trial court granted the defendant’s motion for a waiver of fees and the appeal was filed within the ensuing twenty day period.

       We note that absent this request, because of the procedural posture of Phidd, certification of these issues via Practice Book § 4126 is doubtful inasmuch as both the state and the defendant agreed and stipulated to the action of the habeas court.
      Although the opinion in this case agrees with both the reasoning and the result in Phidd, and while the appellate panel in Phidd continues to adhere to the correctness of that decision, the Phidd panel nonetheless joins in the request of the panel in this case that the Supreme Court certify this case pursuant to Practice Book § 4134 et seq. because of the importance of this issue to both appellate courts.

       The defendant’s argument that General Statutes § 54-86f precludes the admissibility of evidence proffered by the victim in this sexual assault is unfounded. The statute is intended to protect a victim’s personal privacy; State v. Kulmac, 230 Conn. 43, 53, 644 A.2d 887 (1994); by governing the type of evidence a defendant may proffer concerning the victim’s past sexual conduct. See State v. Kindrick, 30 Conn. App. 56, 619 A.2d 1 (1993). Accordingly, we treat this claim only as a challenge to an evidentiary ruling.

       During W’s direct testimony, the following colloquy took place:
      “Q. Now, in the time that you had known the defendant, did he tell you that he had another job as well as being [an instructor at SCSU]?
      “A. He said he was a state trooper, and I knew he was a teacher at Hillhouse.
      * ** *
      “Q. Did you tell your family, friends what had happened?
      “A. No.
      “Q. Why?
      “A. Because I didn’t think nobody was going to believe me.
      “Q. Why did you think that?
      “A. Because I just started thinking about the night, I was in his house around one o’clock in the morning, people don’t believe that you could be raped in a man’s house that time of night.
      “Q. What did you think people would believe? “A. They would believe that I wanted to have sex with him.
      =s ** *
      “Q. And did you—had you had an experience in the past when you were much younger involving sexual assault?
      “A. Yes
      “Q. Could you explain?
      “A. It was my uncle.
      “[Defense Counsel]: Excuse me, Judge. Is that relevant?
      “The Court Do you claim it, Mr. Gold?
      “[Prosecutor]: Well, I do, Your Honor, because I think it’s offered to explain one of the reasons that [W] did not report this.
      “The Court: Overrule the objection.
      * * *
      “Q. Did you report what [your uncle] was doing?
      “A. I told my grandmother.
      “Q. What did she say?
      “A. She said it was not true, she didn’t believe me, she said I was fresh.
      * * *
      “Q. In addition to the incident with your uncle, was there an incident when you were in California in a church—at a church function?
      “A. Yes.
      “Q. And what happened in California?
      “A. I went to the soda machine outside my room to get a soda.
      “Q. This was in a hotel?
      “A. Yes.
      “Q. Did someone come on to the scene, though?
      “A. Yes.
      “Q. So, that didn’t get very far?
      “A. No, just my clothes were ripped and he was on me, but he didn’t get far.
      “Q. Did you report that to your—who did you first report it to?
      “A. My godmother.
      “Q. Okay. And what did she do with that information?
      “A. She reported it to the front desk.”

       Although the defendant makes his claim under the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution, he has failed to support his appellate claim with an independent analysis under the Connecticut constitution. We, therefore, deem that claim to be abandoned. State v. Francis, 228 Conn. 118, 122 n.3, 635 A.2d 762 (1993); State v. Carolina, 40 Conn. App. 762, 768-69 n.7, 673 A.2d 562 (1996).

       Following that exchange, this colloquy took place:
      “Q. She didn’t say anything about an answering machine, she said nobody was home?
      “A. She could say that, but she can’t prove it.
      “Q. She can’t prove it?
      “A. That’s right.
      “Q. Okay. I see. So, you think she is maybe trying to fudge it to help her friend out?
      “A. I’m sure she is.
      “[Defense Counsel]: Objection.
      “Q. Are you sure she is?
      “A. Yes.
      “[Defense Counsel]: Judge, excuse me. I object to that; it’s improper characterization.
      “The Court: The witness has answered the question. It may stand.
      “Q. So, this is not only—so Sharon Huie is also going to try to fudge the facts in this case to help her buddy out?
      “[Defense Counsel]: I object to that also.
      “The Court: Sustain the objection.
      “Q. Were there any other witnesses, in your opinion, that were fudging the facts here?
      “[Defense Counsel]: Objection, that is improper and there is no foundation.
      “The Court: Sustain the objection.

       The defendant asserts that the following comments violated his right not to testify: “And it’s kind of ironic that he doesn’t show up at 8:30, he shows up late enough so that he knows he is going to get to take her home. Sometime after ten ... I think [W] said it was 10:30, but late enough so that he had to take her home. No explanation why he is late. Did he explain it? No. The guy just shows up two hours late, there is no explanation.
      “Rapes aren’t committed in front of witnesses. You see, that’s the way the system works. He raped her when he could rape her without witnesses. If you listen to what the defense says, who else can testify about the rape? . . . The defendant would put in any evidence they want as to this motive for her to come forward, but they haven’t introduced any evidence to show you a motive . . . and does it seem odd that the defense calls one witness, Mrs. Daniels? That’s the defense.”

       The defendant claims that the following comments improperly invoked sympathy for the victim: “I’m sorry she wasn’t able to fight harder. You know, she tried her level best. And I think her grabbing where she knew it was hurting was as smart and I would only hope that my loved ones would have the same courage.
      * ** *
      “The fact she couldn’t use her karate skills, I hope that is offensive to you that this woman, who is really struggling for her life as far as she knows, doesn’t fight hard enough and that’s a defense to rape.
      * * *
      “And the defense said, well, she should have gone to the hospital. Well, she is tough, she had to make a decision, she made it. And I urge you don’t hold that against her because I think you see what somebody has to go through two and a half years later.”

       The defendant does not direct our attention to any specific language or portion of the transcript that would be illustrative of this alleged misconduct. Rather, he couches his claim in general terms stating that the prosecutor “argued that Ms. Daniels testified that the state’s witnesses were fudging their testimony.”


author: HENNESSY, J. O’CONNELL, J.,

text:
    STATE OF CONNECTICUT v. MARC PIEGER
    (13747)
    Dupont, C. J., and O’Connell and Hennessy, Js.

      Argued March 18
    officially released August 6, 1996

      Earle Giovanniello, with whom, on the brief, was Frank J. Riccio, for the appellant (defendant).

      Lisa Herskowitz, deputy assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Nicholas J. Bove, Jr., assistant state’s attorney, for the appellee (state).
   HENNESSY, J.

The defendant, Marc A. Pieger, after a trial to the court, appeals from his conviction of evading responsibility in violation of General Statutes § 14-224 (a). The defendant claims that the court improperly (1) denied his motion for judgment of acquittal, (2) found him guilty of evading responsibility, (3) denied his second motion for articulation and (4) directed him to make a “charity donation.”

The trial court found that on March 29, 1992, at approximately 9 p.m., the defendant was the owner and operator of a motor vehicle that struck and seriously injured Tammy Sheldon as she crossed Noble Avenue in Bridgeport. The trial court further found that the defendant left the scene of the accident without stopping to render assistance or to give his name and address to a police officer or a witness. The trial court also found that the defendant knew he was involved in an accident based on its finding that the defendant drove his vehicle around Sheldon as she lay in the highway.

I

The defendant first claims that the trial court improperly denied his motion for judgment of acquittal. The gravamen of the claim is that the corpus delicti rule barred consideration of the defendant’s admissions to Detective Terrance Lambert because the state had not presented sufficient independent evidence connecting the defendant to the accident.* * The defendant argues that without the admissions the evidence is insufficient to prove that the defendant had been involved in the accident.

“ ‘ “It is a well-settled general rule that a naked extrajudicial confession of guilt by one accused of crime is not sufficient to sustain a conviction when unsupported by any corroborative evidence.” (Emphasis added.) State v. Grant, 177 Conn. 140, 144, 411 A.2d 917 (1979).’ State v. Arnold, 201 Conn. 276, 286, 514 A.2d 330 (1986). Properly, the corroborative evidence of the corpus delicti should be presented, and the court satisfied of its material character and adequacy to render any inculpatory statements admissible before they are allowed into evidence. State v. DelVecchio, 191 Conn. 412, 426-27, 464 A.2d 813 (1983). This corroborating evidence, however, may be circumstantial in nature. State v. Arnold, supra.” State v. Harris, 215 Conn. 189, 192-93, 575 A.2d 223 (1990).

“In Connecticut, the corpus delicti rule has two distinct formulations. First, where the crime charged encompasses a specific kind of loss or injury, the state may make use of a defendant’s admission at trial only if it proves, with sufficient corroborating evidence, the existence of that specific injury or loss. State v. Tillman, 152 Conn. 15, 20, 202 A.2d 494 (1964). The state does not have to prove the criminality of the underlying loss or injury as an element of the corpus delicti under this formulation. Id. Second, where the crime charged, however, prohibits certain conduct but does not require a specific harm, the state need introduce only substantial independent evidence that would tend to establish the trustworthiness of the defendant’s confession. State v. Harris, [supra, 215 Conn. 194-95].” State v. DesLaurier, 32 Conn. App. 553, 570-71, 630 A.2d 119 (1993), aff'd, 230 Conn. 572, 646 A.2d 108 (1994).

The defendant has based his motion for judgment of acquittal on the second formulation, which requires the state to introduce substantial independent evidence that tends to establish the trustworthiness of the defendant’s statement. The second approach, adopted in State v. Harris, supra, 215 Conn. 194-95, is based on the proposition that the crime charged prohibits certain conduct and does not require a specific harm. The Harris formulation, however, is not applicable to this case. The statute with which the defendant was charged requires that the accident cause serious physical injury, which places it squarely within the first formulation adopted in State v. Tillman, supra, 152 Conn. 20. See General Statutes § 14-224. As such, in order for the state to use the defendant’s admissions at trial it must prove with sufficient corroborative evidence the existence of that specific injury or loss. It need not provide corroborating evidence that the defendant caused the loss or injury.

The victim and her physician both testified as to the victim’s injuries. This testimony led the trial court to find the following: “As a result of being struck by the motor vehicle, Tammy sustained multiple trauma to the body and brain. She also fractured the vertebrae in her neck. The result of the impact left her comatose for a long period of time. The injury she sustained was a serious and permanent injury.” This evidence satisfies the requirements set forth in Tillman and “once the existence of the crime charged is established, the confession alone may then be used to provide the link between the criminal act and the accused who admits having committed it.” State v. Grant, 177 Conn. 140, 144, 411 A.2d 917 (1979). We conclude that the trial court did not improperly deny the defendant’s motion for judgment of acquittal.

II

The defendant next claims that his conviction should be vacated because the trial court’s judgment of acquittal on the reckless driving count and conviction on the evading responsibility in the operation of a motor vehicle count were inconsistent both factually and as a matter of law. The defendant claims that the trial court’s judgment of acquittal on the charge of reckless driving was based on conflicting testimony concerning the description of the car seen at the scene of the accident. He contends that because the charges were based on the same evidence, if there was confusion as to whether his car1 was being driven recklessly, resulting in the judgment of acquittal, there must be confusion as to whether his car was involved in the evading responsibility violation. The defendant argues that by finding him not guilty of reckless driving, the court, in effect, must have had a reasonable doubt that he drove the car involved in the accident, and, if that was the finding, the court cannot find him guilty of evading responsibility for the same incident. The defendant claims that finding him guilty of evading responsibility and not guilty of reckless driving results in a legal impossibility requiring the judgment of the court to be reversed because both charges involved the same incident.

The defendant did not make the “inconsistent verdict” argument to the court at trial, but argues that he is entitled to review of this claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The state contends that even if the claim is reviewable, the verdicts are not inconsistent. Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id., 239-40.

In a jury case, our Supreme Court has held that the claim that inconsistent verdicts must be set aside because of a factual inconsistency is not of constitutional dimension. State v. Gaston, 198 Conn. 490, 492, 503 A.2d 1157 (1986); see State v. Hinton, 227 Conn. 301, 313, 630 A.2d 593 (1993). The United States Supreme Court has held that the issue is not of constitutional dimension even if the verdict is rendered by a court rather than a jury. Harris v. Rivera, 454 U.S. 339, 347-48, 102 S. Ct. 460, 70 L. Ed. 2d 530 (1981). The defendant’s claim that the verdicts are factually inconsistent is not of constitutional magnitude and, as such, does not satisfy the second prong of Golding. Accordingly, we will not review this claim.

The defendant also claims that the court’s findings of guilt are inconsistent as a matter of law citing State v. Hinton, supra, 227 Conn. 301. The findings, however, are not inconsistent. The claim the defendant makes relates to factual findings and has nothing to do with the proof of the elements of the two crimes. The defendant may not have been driving at such a speed as to endanger the life of another and may nevertheless have knowingly been involved in an accident causing serious physical injury and not stopped.

III

The defendant next claims that the court improperly denied his second motion for articulation, which requested the court to set forth the factual basis for finding the defendant not guilty of reckless driving.

Upon denial by the trial court of a motion for articulation made pursuant to Practice Book § 4051, “[a]ny party aggrieved by the action of the trial judge as regards . . . articulation under Sec. 4051 may, within ten days of the issuance of notice of the order sought to be reviewed, make a written motion for review to the court, to be filed with the appellate clerk, and the court may, upon such a motion, direct any action it deems proper. ...” Practice Book § 4054. The defendant did not file with this court a motion for review of the trial court’s denial of his motion for articulation and “the sole remedy of a party seeking review of an order denying articulation or rectification is by a motion for review. State v. Holloway, 22 Conn. App. 265, 274-76, 577 A.2d 1064, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990).” State v. Vincent, 30 Conn. App. 249, 261, 620 A.2d 152 (1993), aff'd, 229 Conn. 164, 640 A.2d 96 (1994). The defendant failed to pursue the proper remedy, and, therefore, we do not review his claim.

IV

The defendant’s last claim is that the part of the sentence directing that he make a “charity donation” is not authorized by statute and should be vacated. The court sentenced the defendant to a term of incarceration, part of which was suspended, and five years probation. The court also stated the following: “In addition to the terms of regular probation, the court further imposes the following conditions .... In accordance with the recommendation of the probation department, I am going to order that you . . . make a charity donation of $ 2500 to New Britain Hospital . . . .”

The question posed by the defendant is whether General Statutes § 53a-30 (a), which sets forth the authorized conditions of probation, allowed the court to order that the defendant make a charitable donation as a condition of probation. “Probation conditions serve two primary purposes. [They] are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer’s being at large. ... [A] condition of probation may diminish a probationer’s liberty rights only to the extent necessary for his reformation and rehabilitation.” (Citations omitted; internal quotation marks omitted.) State v. Graham, 33 Conn. App. 432, 448, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994). General Statutes § 53a-30 (a) (12) provides that the court may order the defendant to “satisfy any . . . conditions reasonably related to his rehabilitation.”

The defendant’s actions resulted in the accumulation of medical bills at New Britain Hospital in excess of one million dollars and in serious physical injury to Sheldon. This extraordinary debt and harm to Sheldon was caused by the defendant’s criminal act. Payment of a charitable contribution to the hospital in which the defendant’s victim received her treatment is a condition that is reasonably related to the defendant’s rehabilitation. Although the record does not indicate that the defendant “can afford to pay . . . for the loss or damage” an amount in restitution, as provided by subdivision (4) of § 53a-30 (a), the court was within the bounds of its discretion to have the defendant make a contribution under the general authority of § 53a-30 (a) (12). The donation is a realistic method of making the defendant aware of the damage he has wrought as a result of his offense. It is one part of a plan of action by the court to rehabilitate the defendant. We conclude that the trial court’s order that the defendant pay the New Britain Hospital $2500 is related to the defendant’s offense and his rehabilitation.

The judgment is affirmed.

In this opinion DUPONT, C. J., concurred.

O’CONNELL, J.,

concurring in part and dissenting in part.

I

I agree with the majority’s analysis of the corpus delicti rule, but I feel that we should not reach that issue because the defendant improperly used a motion for judgment of acquittal in lieu of a proper evidentiary objection.

The corpus delicti doctrine is a rule of evidence utilized to determine the admissibility of a confession. 2 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 111b (1). If a sufficient foundation has not been established under the applicable Tillman or Harris decisions, a defendant’s confession is not admissible into evidence. State v. Harris, 215 Conn. 189, 194-95, 575 A.2d 223 (1990); State v. Tillman, 152 Conn. 15, 20, 202 A.2d 494 (1964). If a defendant does not object to the admission of a confession it becomes part of the evidence and may be considered by the trial court. See In re Jose M., 30 Conn. App. 381, 390, 620 A.2d 804 (1993).

In the present case, the defendant did not object to the confession’s coming into evidence. Instead, he waited until the close of the state’s case-in-chief when he moved for a judgment of a acquittal. Practice Book §§ 883, 884. Section 883 mandates that “the judicial authority shall order the entry of a judgment of acquittal as to any . . . offense charged . . . for which the evidence would not reasonably permit a finding of guilty.” The trial court must base its ruling on the motion for judgment of acquittal on all the evidence that has come into the case up to that point. At that point, it is too late for the defendant to argue that if some of the evidence had not been admitted, the evidence would not have reasonably permitted a guilty finding.

The majority’s analysis would allow a defendant to fail to object to any evidence and then at the conclusion of the state’s case ask the court to review the state’s entire case and to disregard any evidence that, if he had made timely objection, would not have been admitted. This is clearly an improper use of a motion for judgment of acquittal. It may not be used as a substitute for a timely objection. At the time the motion was made, the defendant’s confession was in the case and the trial court was required to consider it.

II

I do not agree with the majority that the trial court properly ordered the defendant to make a $2500 donation to New Britain Hospital. Because such a donation is not authorized by statute, the trial court lacked jurisdiction to impose such an order. The donation to New Britain Hospital should therefore be vacated as an illegal portion of the sentence. Practice Book § 935; State v. Daniels, 207 Conn. 374, 387, 542 A.2d 306 (1988).

The penalties for the crime for which the defendant was convicted include a fine of not more than $5000, imprisonment of not less than one year nor more than five years, or both a fine and imprisonment. General Statutes § 14-224 (f). In accordance with the statute, the trial court imposed a term of imprisonment of five years, suspended after eighteen months with five years probation. The trial court did not impose a monetary fine but instead ordered the defendant to make a $2500 “charitable donation” to New Britain Hospital. It is readily apparent that a charitable donation is not one of the legislatively sanctioned penalties.

In addition to the statutory penalties for evading responsibility, General Statutes § 53a-30 (a) provides that in any case in which the court imposes a sentence of probation, the court may impose any of twelve conditions of probation. Nothing in this compendium of conditions includes a charitable donation.

The majority finds jurisdiction for the charitable donation in subdivision (12), which allows “any other conditions reasonably related to [the defendant’s] rehabilitation.” I am not persuaded that ordering the defendant to pay $2500 to New Britain Hospital under the guise of a charitable donation is reasonably related to his rehabilitation.

The majority concludes that the defendant will be rehabilitated if he is required to make a financial contribution out of his own pocket. I agree with this principle, but submit that this beneficial purpose can be achieved within statutory bounds by the imposition of a fine. I am not persuaded that payment of $2500 to New Britain Hospital will have a more rehabilitative effect than payment of a like sum into the coffers of the state.

This court must construe the statute as it finds it without reference to whether we feel that the law might have been improved by the inclusion of other provisions. Houston v. Warden, 169 Conn. 247, 252, 363 A.2d 121 (1975). If a charitable contribution is to become an authorized disposition in a criminal prosecution it must be added by the legislature and not by the courts.

For these reasons, I respectfully dissent from the majority decision on this issue only.

       General Statutes § 14-224 (a) provides: “Each person operating a motor vehicle who is knowingly involved in an accident which causes serious physical injury, as defined in section 53a-3, to or results in the death of any other person shall at once stop and render such assistance as may be needed and shall give his name, address and operator’s license number and registration number to the person injured or to any officer or witness to the death or serious physical injury of any person, and if such operator of the motor vehicle causing the death or serious physical injury of any person is unable to give his name, address and operator’s license number and registration number to the person injured or to any witness or officer, for any reason or cause, such operator shall immediately report such death or serious physical injury of any person to a police officer, a constable, a state police officer or an inspector of motor vehicles or at the nearest police precinct or station, and shall state in such report the location and circumstances of the accident causing the death or serious physical injury of any person and his name, address, operator’s license number and registration number.”

       Lambert gave the following testimony about a telephone conversation he had with the defendant the day after the accident:
      “Q. Good afternoon, Detective Lambert. Directing your attention to March 30, 1992, did you have occasion to speak to a Mr. Marc Pieger?
      “A. Yes. Yes, sir.
      “Q. And are you a relative, sir, of Mr. Pieger?
      “A. No. He’s a friend of the family.
      “Q. Now, would you explain the circumstances behind the phone call? “A. I was at the doctor’s office. I was beeped by my mother and she told me to call Mr. Pieger, Marc, back.
      “Q. Uh-huh.
      “A. Concerning a accident.
      “Q. Did you call him?
      “A. Yes.
      “Q. And are you familiar with his voice?
      “A. Yes.
      “Q. And have you talked to him on the phone before? “A. Yes.
      “Q. And are you sure it was Marc Pieger you were talking to on the phone?

        “A. Yes, sir.
      “Q. And what was the gist of that conversation?
      “A. He had asked me about an accident and I had asked—Yeah, there was a bad accident the night before. And I asked him if he was involved. And he stated, ‘Yeah.’ And I says, ‘It was a hit-and-run. Why didn’t you stop? And he says, ‘I panicked.’

       The defendant made this motion at the close of the state’s case-in-chief. The trial court, reserved decision on the motion in order to allow the defendant to present testimony relevant to the admissibility of the statement and the corpus delicti rule. The trial court heard expert testimony from the defendant and rebuttal testimony from the state, but nevertheless, convicted the defendant of evading responsibility.

       I distinguish this case from the situation in which a defendant enters into a voluntary plea agreement that includes a charitable contribution. I reserve my comments on voluntary contributions for a case in which that issue is presented to us.


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. LEROY GETTES
    (15359)
    O’Connell, Landau and Schaller, Js.
    Argued April 2
    officially released August 6, 1996

      Suzanne Zitser, assistant public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Bruce Hudock, assistant state’s attorney, for the appellee (state).
   SCHALLER, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, attempted robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (2) and conspiracy to commit first degree robbeiy in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2). The defendant claims that the trial court improperly (1) admitted into evidence certain out-of-court and in-court identifications of him and (2) failed to make an initial legal determination as to the relevancy of a bullet that was admitted as evidence at trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In the afternoon of December 2, 1991, Minnie Henderson and Johnny Henderson, husband and wife, were working in their jewelry store in Stamford. At approximately 12:40 p.m., the defendant and Frederick Braithwaite entered the store. As Minnie Henderson approached the defendant, he broke through a gate connecting two display cases and forced her to the back of the store where her husband was sitting on a work bench. The defendant told the Hendersons to “get down.” Minnie Henderson crawled into a bathroom, opened the window, and screamed for help. She then heard a series of gun shots. The defendant shot and killed Johnny Henderson during the course of the robbery.

While the Hendersons were being robbed, Robert Kane entered the store with the intention of purchasing calculator batteries. The door of the store had been held open for Kane by Braithwaite. While he was in the store, Kane heard “alot of pushing and shoving,” yelling, swearing, and, finally, gun shots. Kane fled from the store. Shortly thereafter, Kane witnessed the defendant and Braithwaite hurrying down Atlantic Avenue. Two other witnesses also saw the defendant and Braithwaite hurrying down Atlantic Avenue shortly after the time of the robbery. One of them witnessed Braithwaite drop a gun, pick it up, and place it in an artist’s portfolio that he was carrying.

A police officer arrived at the Hendersons’ store shortly after the incident and found Johnny Henderson’s body on the floor.

I

The defendant first claims that the trial court improperly denied his motion to suppress Minnie Henderson’s out-of-court and in-court identifications in violation of both his federal and state constitutional rights to due process. The defendant claims that the out-of-court identification procedure was unnecessarily suggestive and unreliable.

Several additional facts are relevant to this issue. After the robbery, Henderson viewed hundreds of photographs at police headquarters and did not make an identification.

On the morning of December 17, 1991, Henderson returned to the Stamford police station to view photographic arrays and was shown three sets of photographs, each consisting of six photographs. She selected one photograph, designated as number fifteen. She indicated to the police that the man in the photograph looked like the man who had forced her to the back of her jewelry store and had held her and her husband at gunpoint, but that the man in the store had worn glasses. The police asked Henderson to come back later in the evening to make sure that the man she identified was in fact the man who had robbed her store.

Later that evening, Henderson returned to the police station and was shown one of the three sets of photographs that she had viewed that morning. She chose the photograph of the defendant. Again, however, she was concerned that the man in the photograph was not wearing glasses. Subsequently, the police showed Henderson a clearer and larger photograph of the defendant. Upon viewing this enlarged photo of the defendant, she stated that she was positive that this was the man who had robbed her store.

The defendant moved to suppress the out-of-court identification on the ground that it was unnecessarily suggestive and unreliable. The trial court found that there was nothing suggestive about the first three arrays shown to Henderson in the morning, nor was it improper to have her come back in the afternoon to view the photographs. The court did find, however, that the procedure by which Henderson identified the defendant by viewing a single enlarged photograph was unnecessarily suggestive. Although the trial court found that the out-of-court identification was unnecessarily suggestive, the court declined to suppress Henderson’s identification of the defendant. The court ruled that, although the identification procedure was unnecessarily suggestive, it was, nevertheless, rehable. We agree with the trial court.

“The standard by which we review a trial court’s decision to admit evidence of identification is well settled. ‘[W]e will reverse the trial court’s ruling [on evidence] only where there is abuse of discretion or where an injustice has occurred . . . and we will indulge in every reasonable presumption in favor of the trial court’s ruling.’ (Citation omitted.) State v. Mooney, 218 Conn. 85, 131, 588 A.2d 145, cert denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991). Because the inquiry into whether evidence of pretrial identification should be suppressed ‘contemplates a series of fact-bound determinations, which a trial court is far better equipped than this court to make, we will not disturb the findings of the trial court as to subordinate facts unless the record reveals clear and manifest error. State v. Mitchell, 204 Conn. 187, 203, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 252 (1987). Because the issue of the reliability of an identification involves the constitutional rights of an accused, [however,] we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court’s ultimate inference of reliability was reasonable. State v. Gordon, 185 Conn. 402, 416, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982); State v. Frazier, 185 Conn. 211, 219, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982); see Culombe v. Connecticut, 367 U.S. 568, 605, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961).’ State v. Howard, 221 Conn. 447, 454, 604 A.2d 1294 (1992).” State v. Figueroa, 235 Conn. 145, 155, 665 A.2d 63 (1995).

To determine whether a pretrial identification procedure violated the defendant’s due process rights, “the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and, second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on the examination of the ‘totality of the circumstances.’ ” State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980).

“ ‘[Reliability is the linchpin in determining the admissibility of identification testimony. . . .’ Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).” State v. Figueroa, supra, 235 Conn. 157. “To determine whether an identification resulting from an unduly suggestive procedure is nevertheless reliable, a court must weigh the corrupting effect of the suggestive procedure in light of the following factors: the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention . . . the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” (Internal quotation marks omitted.) State v. Howard, 221 Conn. 447, 453, 604 A.2d 1294 (1992), citing Manson v. Brathwaite, supra, 114; State v. Rasmsundar, 204 Conn. 4, 10-11, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987).

In the present case, Henderson had ample opportunity to view the defendant at the time of the crime. She observed the defendant at a close range in a well lit jewelry store. She gave a great deal of attention to the defendant because she first observed him as a potential customer, and then as her assailant. She initially provided a description of the defendant, the accuracy of which was not contested. She consistently eliminated all of the other photographs in the photographic arrays, and, on three occasions, chose the defendant’s photograph as depicting one of the men who had robbed her jewelry store. Finally, Henderson’s identification occurred only fifteen days after the commission of the crimes. That delay was not so lengthy as to render the identification unreliable. State v. Howard, supra, 221 Conn. 445 (identification made two and one-half months after crime was committed was rehable); State v. Parker, 197 Conn. 595, 600, 500 A.2d 551 (1985) (ten month period between identification and victim’s viewing of her assailant not so long as to render identification unreliable).

We are satisfied, after our scrupulous review of the record, that the trial court correctly concluded that the identification was reliable under the totality of the circumstances. The trial court considered the victim’s opportunity to view the perpetrator at the time of the crime, the proximity of the victim to the peipetrator, the lighting at the scene of the crime, the certainty of the identification, the length of time between the crime and the identification, and the victim’s general description of the perpetrator. Because we conclude that the out-of-court identification was rehable, we also agree with the trial court that the in-court identification testimony was rehable. State v. Cubano, 203 Conn. 81, 96 n. 11, 523 A.2d 495 (1987). Accordingly, we conclude that the trial court properly denied the defendant’s motion to suppress.

II

The defendant next claims that the trial court improperly failed to make an initial legal determination as to the relevancy of a bullet that was admitted as evidence at trial. We do not agree.

The additional facts relevant to this issue are as follows. At Johnny Henderson’s autopsy, Edward McDonough, a state medical examiner, removed a buhet from Henderson’s chest and determined that he died as a result of that bullet wound. Officer Edward Rondano was present at the autopsy. Rondano cleaned the bullet, photographed it, wrapped a piece of paper around it, and placed it in a container that was sealed with tape. The bullet was later taken to the state forensics laboratory.

The dispute about the bullet arose because McDonough testified at trial that he believed that he had etched markings on the bullet that he had removed from Johnny Henderson’s body. When he examined the bullet on the witness stand, however, McDonough did not see these markings. Rondano testified that he believed McDonough had made the etchings, although he had not seen him do so. As a result, the trial court reasoned that either the bullet removed from the victim was not the same bullet presented to the court, or that McDonough was mistaken about making the etchings.

The defendant claims that the trial court admitted the bullet into evidence without making an initial determination of relevancy. The record does not support that contention. The trial court adequately addressed the defendant’s objection to the admissibility of the bullet. The court stated, “I’ve admitted this item [the bullet] into evidence for your [the jury’s] consideration over the objection of the defense counsel.”

The trial court recognized that there was a conflict in the testimony about the bullet, but that this was a matter for the jury to resolve. The conflicting testimony about the bullet did not make the evidence irrelevant or inadmissible. “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . [E]vidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree. . . . [T]he fact that the evidence is susceptible of different explanations or would support various inferences does not affect its admissibility, although it obviously bears upon its weight. So long as the evidence may reasonably be construed in such a manner that it would be relevant, it is admissible.” (Citations omitted; internal quotation marks omitted.) State v. Sauris, 227 Com. 389, 406-407, 631 A.2d 238 (1993).

It is well settled that “[t]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence.” State v. Miller, 202 Com. 463, 482, 522 A.2d 249 (1987). We conclude that the trial court did make an initial determination of relevancy regarding the bullet that was admitted as evidence at trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.

       “Although the defendant invokes the state constitution in support of his [claim] . . . ‘we limit our analysis to the federal guarantee in light of his failure independently to analyze the state constitution.’ State v. Joly, 219 Conn. 234, 258 n.16, 593 A.2d 96 (1991).” State v. Shanks, 34 Conn. App. 103, 113 n.10, 640 A.2d 155, cert denied, 229 Conn. 921, 642 A.2d 1216 (1994).

       Because we find that the identification procedure was reliable, we need not address the merits of the trial court’s finding that the procedure was unnecessarily suggestive.