author: Daly, J.

text:
    State of Connecticut v. Linda Murdick
    (8702)
    Spallone, Daly and Landau, Js.
    Argued November 1, 1990
    decision released January 1, 1991

      John R. Williams, for the appellant (defendant).

      James A. Killen, assistant state’s attorney, with whom, on the brief, were John Redway, state’s attorney, and Timothy Liston, assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from a judgment of conviction, after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a (a), and assault in the first degree in violation of General Statutes § 53a-59 (a) (1). The defendant claims that the trial court improperly (1) permitted the state to introduce evidence concerning the details of a civil suit brought against the defendant by the alleged victim, (2) disallowed the victim’s prior inconsistent statement to be used as substantive evidence, (3) prevented the defendant from impeaching the state’s chief witness with two prior felony convictions, (4) charged the jury that it could consider the defendant’s false exculpatory trial testimony as evidence of a guilty connection between the defendant and the crimes charged, and (5) denied the defendant the opportunity to present evidence of ineffective assistance of counsel. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On May 20, 1988, the victim, Mabel Marshall Gowoc, was shot several times by two assailants in her house in East Haddam, which she occupied with her two young daughters. The victim had been engaged in a custody battle with her ex-husband, Thomas Smith, whom she divorced in December, 1985. Although Smith and the victim were originally granted joint custody of their daughters, the victim was granted sole custody of the children in July, 1987. Smith took the daughters to Vermont between July, 1987, and March, 1988, and kept them hidden from the victim and the authorities. While in Vermont, Smith lived with the defendant. Upon their return from Vermont, the daughters were returned to the victim’s custody and Smith lost all visitation rights. The victim thereafter filed a civil action against Smith and the defendant.

The defendant then importuned a longtime, mutual friend, Vera Lee, to help Smith to regain his custody rights. The defendant and Lee discussed plans to shoot the victim so that Smith could obtain custody of his daughters.

On the morning of May 20,1988, the defendant met Lee at the house in Meriden where Smith and the defendant lived. The defendant gave Lee a handgun with ammunition and Lee practiced firing the handgun in the defendant’s backyard. Later that morning, Lee and the defendant drove to the victim’s house in East Haddam, Lee armed with the handgun and the defendant armed with a shotgun. They arrived at the victim’s house at approximately noon and Lee approached the house while the defendant remained in the car. The victim answered the door and Lee introduced herself. The victim had known Lee as a friend of Smith’s. The victim observed another person in the car and refused to permit Lee to enter the house. Lee offered the victim money in exchange for the children. After hearing this, the victim closed the door. Lee then returned to the car and drove with the defendant to Middletown where they ate lunch and discussed future strategy.

The defendant and Lee returned to the victim’s house approximately three hours later. Again, Lee went to the door of the house while the defendant remained in the car. The victim opened the door slightly and Lee repeated her offer of money. The victim then slammed the door shut. Lee drew her handgun and fired two shots through the closed door, hitting the victim twice in the chest. After being shot, the victim locked the door, hid her children in a bathroom closet and then telephoned for assistance. While the victim tried to give the emergency operator information, Lee entered the house and shot the victim another two or three times. Lee ran out of ammunition and left the house, returning to the car. After hearing from Lee that the victim was still alive, the defendant then entered the house and fired her shotgun twice at the victim at close range. The defendant returned to the car and with Lee drove back to Meriden. Paramedics arrived at the victim’s home shortly after the defendant and Lee had departed. The victim survived the attack after extensive medical treatment.

I

The defendant first claims that the state should not have been allowed to introduce evidence concerning the details of the civil suit brought against the defendant by the victim. The victim testified about a pending civil lawsuit filed against the defendant and Smith for tortious interference with the custody of the victim’s children. The state also submitted into evidence the writ, summons and complaint of the lawsuit to show a motive for the defendant’s action against the victim. The defendant objected on the grounds that this evidence was prejudicial, raised collateral issues and was irrelevant. The court overruled the objection to this evidence but sustained the defendant’s objection to the term “kidnapping” in the testimony regarding the civil action. In response to the state’s and the defendant’s requests, the court gave the jury a cautionary instruction that this evidence contained unproven allegations against the defendant.

Evidence tending to show prior misconduct of the defendant may be admissible if it is substantially relevant to an important issue in the case, such as motive. State v. Baker, 182 Conn. 52, 59, 437 A.2d 843 (1980); State v. Marshall, 166 Conn. 593, 599-600, 353 A.2d 756 (1974). If a court deems such evidence relevant, it must still decide whether the probative value of the evidence outweighs its prejudicial effect. State v. Morowitz, 200 Conn. 440, 442, 512 A.2d 175 (1986). The court has wide discretion in its rulings on the relevancy of evidence and in determining whether the probative value of the evidence outweighs its prejudicial effect. Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. State v. Carr, 172 Conn. 458, 464, 374 A.2d 1107 (1977).

The record discloses that there was no abuse of discretion in allowing evidence of the civil suit to be introduced. Evidence of motive is a highly relevant factor for assessing the guilt or innocence of a defendant. State v. Harris, 182 Conn. 220, 223-24, 438 A.2d 38 (1980). The evidence of the civil suit was probative of the motive or intent of the defendant and was part of the history of the dispute between the parties. See State v. Hoeplinger, 9 Conn. App. 147, 156, 517 A.2d 632 (1986), rev’d on other grounds, 206 Conn. 278, 537 A.2d 1010 (1988). Therefore, the evidence of the civil suit was a relevant factor in understanding the defendant’s relationship to Smith and, thus, her motive to attack the victim. See State v. Hoyeson, 154 Conn. 302, 307, 224 A.2d 735 (1966).

Having established relevancy, we next inquire whether the trial court abused its discretion in ruling that the probative value of this evidence outweighed its prejudicial effect. The record discloses that the trial court conducted this balancing test by hearing all of the evidence before permitting it to go to the jury. See State v. Holliday, 159 Conn. 169,173-74, 268 A.2d 368 (1970). The court sustained the defendant’s objection to the use of the term “kidnapping” and further cautioned the jury that the evidence of the lawsuit contained only unproven allegations. Proper limiting instructions often mitigate the prejudicial impact of evidence of prior misconduct. State v. Ryan, 182 Conn. 335, 338 n.5, 438 A.2d 107 (1980); see State v. Rodriguez, 210 Conn. 315, 333, 554 A.2d 1080 (1989) (the jury is presumed to have followed the court’s instructions). The defendant failed to except to this instruction or to suggest an alternative. This failure further weakens the defendant’s claim of prejudice. State v. Conroy, 194 Conn. 623, 628, 484 A.2d 448 (1984). Although this evidence was damaging to the extent that it may have indicated further criminal activity in addition to that alleged in the information, it was not prejudicial in the sense that it was inflammatory or likely to arouse the passions of the jury. We cannot say as a matter of law that the trial court abused its discretion in conducting this balancing process.

The defendant argues that even if the victim’s testimony concerning the lawsuit was properly admitted, it would nevertheless be improper to admit the writ, summons and complaint. The defendant has the burden of proving the harmfulness of any alleged erroneous admission of evidence, when, as here, it does not involve a constitutional issue. State v. Silva, 201 Conn. 244, 250, 513 A.2d 1202 (1986). The written allegations contained in the exhibit essentially repeated the admissible testimonial evidence of the lawsuit. The defendant has failed, however, to establish that any prejudice or harm resulted from the victim’s testimony regarding the lawsuit. Thus, even if the exhibit was incorrectly admitted, its admission would be harmless because it was cumulative and merely corroborated admissible testimony. State v. Robinson, 213 Conn. 243, 259-60, 567 A.2d 1173 (1989); State v. Kwaak, 21 Conn. App. 138, 151, 572 A.2d 1015, cert. denied, 215 Conn. 811, 576 A.2d 540 (1990). In view of the trial court’s careful balancing and considered determination that this evidence was relevant and more probative than prejudicial, the court properly admitted the evidence of the civil suit.

II

The defendant next claims that the victim’s testimony concerning the description of Lee’s companion was inconsistent with the description contained in her written statement to the police dated June 14,1988. The defendant argues that the written statement was admitted as an exhibit and that the jury should have been charged that it was admissible for the truth of the statements therein and not merely for impeachment purposes as the court charged.

The record indicates that the following colloquy occurred subsequent to the court’s limiting instruction to the jury:

“The Court: Before the jury is brought back, and so we can clarify the record regarding defendant’s exhibit one, which was a statement by the victim, the court gave a limiting instruction as to the use of that statement, that it was, namely, to be used for impeachment purposes only. The defense counsel objected to that limiting instruction, do you have a position on that objection now?

“[Defense Counsel]: Yes, Your Honor, I’m going to withdraw my objection to the limiting instruction and I understand that the statement will be used for impeachment purposes only.

“The Court: Does the state have any comment on that?

“[Prosecutor]: No comment, Your Honor.”

Under Practice Book § 4185, we may review only those claims that have been clearly raised in the trial court. A reasonable interpretation of the transcript is that, after hearing the remarks of the court, defense counsel conceded that the limiting instruction was proper and withdrew his objection. State v. Kim, 17 Conn. App. 156, 157, 550 A.2d 896 (1988). We will not review on appeal rulings that the defendant requested or accepted at trial. State v. Rutan, 194 Conn. 438, 446, 479 A.2d 1209 (1984). Thus, the defendant’s claim does not merit review. See State v. Holloway, 209 Conn. 636, 649, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078,104 L. Ed. 2d 643 (1989). Even if the error had been properly preserved, the defendant has failed to prove the harmfulness of that error because it is highly unlikely that the inconsistent description contributed significantly to the jury’s verdict when the victim was unable to identify the defendant as one of her assailants. See, e.g., State v. Silva, 201 Conn. 244, 250-51, 513 A.2d 1202 (1986).

Ill

The defendant next claims that she should have been allowed to cross-examine Lee concerning Lee’s two convictions on July 23, 1969, for fraudulently obtaining controlled drugs and obtaining controlled drugs by forgery. The trial court sustained the state’s objections on the grounds that the defendant had not established that these offenses were felonies, and, if she had, that they were too remote in time.

The Supreme Court has interpreted General Statutes § 52-145 to mean that a conviction of a crime, whether or not it is denominated as a felony, is admissible only if the maximum permissible penalty for the crime is imprisonment for more than one year. State v. Geyer, 194 Conn. 1, 10, 480 A.2d 489 (1984). The defendant did not demonstrate that these convictions were punishable by imprisonment in excess of one year, despite the notice of the state’s objection to the lack of such a foundation. Therefore, the trial court did not abuse its discretion in denying the cross-examination concerning the prior convictions. See State v. Diorio, 12 Conn. App. 74, 78-79, 529 A.2d 1320, cert. denied, 205 Conn. 813, 532 A.2d 587 (1987), cert. denied, 484 U.S. 1065, 108 S. Ct. 1025, 98 L. Ed. 2d 990 (1988).

Even if we were to assume that these convictions were punishable by imprisonment in excess of one year, convictions are not admissible per se but are admissible for impeachment purposes at the trial court’s discretion. State v. Roman, 6 Conn. App. 189, 191, 504 A.2d 529 (1986). One factor that a court employs in considering whether to admit such convictions is their remoteness in time. Id. The rule in Connecticut more closely follows the federal ten year rule; State v. Harrell, 199 Conn. 255, 262, 506 A.2d 1041 (1986); and “[i]t is a rare prior conviction which is more than ten years old which retains the minimal probative value sufficient to overcome its prejudice.” State v. Roman, supra, 192. Here, the court’s decision that Lee’s prior convictions which were considerably more than 10 years old were not admissible due to remoteness in time was clearly within the court’s sound discretion. See, e.g., Thomas v. Rose, 10 Conn. App. 71, 72, 521 A.2d 597 (1987) (the defendant not allowed to impeach the plaintiff with two twelve year old felony convictions for possession of heroin and possession with intent to sell); State v. Roman, supra, 190 (a thirteen year old conviction for possession of heroin not allowed for impeachment of victim).

IV

The defendant next claims that the trial court improperly instructed the jury when it charged it as follows: “If an accused should attempt to make false statements respecting herself and her conduct concerning the matter on trial you may consider this as evidence tending to show a guilty connection by the accused with the crimes charged.” Both the defendant and the state requested this charge and so it is obvious that the defendant took no exception to it. The defendant now claims that this charge constituted plain error and is error of constitutional magnitude, thus warranting review both under Practice Book § 4185 and under the Evans-Golding criteria. State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

The defendant induced the alleged error by requesting the very instruction she now claims was constitutionally infirm. The Connecticut Supreme Court has held that error induced by an appellant cannot be grounds for reversal and will not be reviewed. State v. Ross, 189 Conn. 42, 47, 454 A.2d 266 (1983). Even induced error, however, if constitutional in magnitude, may warrant review under Evans-Golding. State v. Hinckley, 198 Conn. 77, 81 n.2, 502 A.2d 388 (1985); State v. Foshay, 12 Conn. App. 1, 25, 530 A.2d 611 (1987). Thus, as a threshold matter we must determine if the defendant has raised a claim that meets the Evans-Golding criteria. State v. Golding, supra.

Although the defendant labels her claim as constitutional, she has failed to establish that the error, if any, is truly of constitutional proportions. A jury cannot, as the defendant claims it did, infer facts from its disbelief of the defendant’s testimony; State v. Coleman, 14 Conn. App. 657, 676, 544 A.2d 194, cert. denied, 208 Conn. 815, 546 A.2d 283 (1988); and thereby dilute the state’s burden of proof; State v. Perez, 10 Conn. App. 279, 283, 523 A.2d 508, cert. denied, 203 Conn. 810, 525 A.2d 524 (1987); or impermissibly burden the defendant’s right to testify. State v. Coleman, supra, 675. Contrary to the defendant’s assertions, a review of the court’s charge does not support her claim. An examination of the court’s instruction, as a whole, leads us to conclude that use of the phrase “tending to show a guilty connection by the accused with the crimes charged” was addressing the defendant’s consciousness of guilt, albeit inartfully. State v. Brown, 199 Conn. 14, 26-27, 505 A.2d 690 (1986). A trial court may appropriately instruct a jury to consider a defendant’s false testimony at trial as evidencing consciousness of guilt. State v. Brown, supra; State v. Coleman, supra, 676-77, and cases cited therein.

Even if this phrase allowed the jury to consider the defendant’s false testimony as evidence of guilt, this would not necessarily require reversal because it was harmless. See, e.g., State v. Brown, supra. Here, as in Brown, the defendant complains of a few words in a lengthy instruction that was otherwise correct. There was substantial evidence of guilt even without the defendant’s testimony. The defendant also has not indicated which of her statements the jury could have misused. Therefore, the record does not support the defendant’s contention that this instruction led the jury to convict her contrary to her constitutional rights or her right to a fair trial. See State v. Brown, supra. We conclude that the defendant has not raised a cognizable constitutional claim, or shown that she was clearly deprived of a fair trial, and, thus, we decline further review. See State v. Golding, supra, 239-40; State v. Day, 12 Conn. App. 129, 134, 529 A.2d 1333 (1987); State v. Vilhotti, 11 Conn. App. 709, 713, 529 A.2d 235 (1987); cf. State v. Hinckley, supra, 81 n.2 (because we hold that the defendant’s induced error is not an exceptional circumstance within Evans-Golding, we need not consider the problems that may arise when a defendant induces error that actually implicates constitutional rights). Finally, the defendant’s claim does not approach plain error because there is no evidence of manifest injustice under all of the circumstances of the case. Practice Book § 4185; see State v. Hinckley, supra, 87-88.

Y

The defendant’s final claim is that she was deprived of the opportunity to present evidence to the trial court substantiating her claim of ineffective assistance of counsel. The defendant sought to raise this claim through a motion for a new trial. The motion came before the court prior to sentencing and the defendant sought to present evidence to establish her claim. The trial court refused to grant her an evidentiary hearing and denied the motion.

In her motion for a new trial, the defendant sought to introduce evidence that was not included in the trial record. A motion for a new trial pursuant to Practice Book § 902 is limited to trial errors appearing on the record. State v. Jones, 205 Conn. 723, 730, 535 A.2d 808 (1988). This motion is distinguished from a petition for a new trial pursuant to Practice Book § 904 in which a defendant seeks a new trial based on newly discovered evidence. State v. Servello, 14 Conn. App. 88,101, 540 A.2d 378, cert. denied, 208 Conn. 811, 545 A.2d 1107 (1988).

The trial court’s decision is consistent with the Supreme Court’s decision in State v. Jones, supra, where the court reasoned that if new evidence is to be introduced by the defendant, a petition for a new trial pursuant to Practice Book § 904 is mandated. State v. Jones, supra. Claims of ineffective assistance of counsel should be brought in collateral proceedings, either by way of a petition for a new trial or a petition for a writ of habeas corpus. State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d480, cert. denied, 476 U.S. 1184,106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); State v. Risk, 17 Conn. App. 447, 454, 553 A.2d 1145, cert. denied, 211 Conn. 802, 559 A.2d 1137, cert. denied, 493 U.S. 818, 110 S. Ct. 71, 107 L. Ed. 2d 38 (1989).'

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court instructed the jury as follows:
      “The Court: The jury is cautioned that as to that document if is a civil action, it is not a criminal action. It is a civil action where allegations have been made, apparently that action is still pending, nothing in that action has been proven or established at this time.”

       In her statement, the victim stated that Lee’s companion, the second woman who had shot her, was only 5 feet 5 inches tall, had salt and pepper hair, was wearing slacks and a blouse, and was only one to two inches taller than Lee. In her courtroom testimony, she asserted that Lee’s companion was 5 feet 8 inches tall and wore a raincoat.

       The trial court’s ruling limiting the admissibility of the evidence to impeachment purposes is also not entitled to review under the Evans-Golding criteria; State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989); or under the plain error doctrine. Practice Book § 4185; see State v. Ruiz, 202 Conn. 316, 521 A.2d 1025 (1987).

       General Statutes § 52-145 provides: ” (a) A person shall not be disqualified as a witness in any action because of, (1) his interest in the outcome of the action as a party or otherwise, (2) his disbelief in the existence of a supreme being, or (3) his conviction of crime.
      “(b) A person’s interest in the outcome of the action or his conviction of crime may be shown for the purpose of affecting his credibility.”

       In conducting a balancing test weighing the probative values against the prejudicial dangers, a trial court considers (1) the extent of the prejudice likely to arise, (2) the significance of the particular crime in indicating untruthfulness, and (3) the remoteness in time of the conviction. State v. Geyer, 194 Conn. 1, 11, 480 A.2d 489 (1984).

       In view of State v. Brown, 199 Conn. 14, 26-27, 505 A.2d 690 (1986), it would have been more appropriate for the trial court to employ the phrase “consciousness of guilt” rather than the phrase “guilty connection by the accused with the crimes charged.”

       Practice Book § 902: “Upon motion of the defendant, the judicial authority may grant him a new trial if it is required in the interests of justice. Unless the defendant’s noncompliance with these rules or with other requirements of law bars his asserting the error, the judicial authority shall grant the motion:
      “(1) For an error by reason of which the defendant is constitutionally entitled to a new trial; or
      “(2) For any other error which the defendant can establish was materially injurious to him.
      “If the trial was by the court and without a jury, the judicial authority, with the defendant’s consent and instead of granting a new trial, may vacate any judgment entered, receive additional evidence, and direct the entry of a new judgment.”

       Practice Book § 904: “A request for a new trial on the ground of newly discovered evidence shall be called a petition for a new trial and shall be brought in accordance with Gen. Stat. § 52-270. The judicial authority may grant the petition even though an appeal is pending.”


source: Caselaw Access Project

author: Cretella, J.

license: Public Domain

text:
    State of Connecticut v. Grace Suarez
    (8914)
    Spallone, Lavery and Cretella, Js.

      Argued October 30, 1990
    decision released January 1, 1991

      William T. Koch, Jr., special public defender, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were C. Robert Satti, Sr., state’s attorney, Peter McShane, assistant state’s attorney, and Kathryn St. Amand, legal intern, for the appellee (state).
   Cretella, J.

The defendant appeals from her conviction rendered after a jury trial, of assault in the second degree, in violation of General Statutes § 53a-60 (a) (2). The defendant raises several claims including that the trial court improperly permitted testimony concerning statements she had made and improperly allowed testimony that impeached her credibility. She also raises issues concerning court instructions and closing arguments of the state. We affirm the decision of the trial court.

The jury heard conflicting testimony concerning a fight in the women’s bathroom of the Speakeasy Cafe. The two conflicting stories concern the defendant’s striking the victim in the face with a glass and the defendant’s claim that she did so in self-defense.

A witness who knew neither the defendant nor the victim testified that she had observed the argument and that the victim had left the bathroom briefly then returned and punched the defendant in the face. This witness further testified that she had not seen the defendant hit the victim with the glass.

After the fight was broken up and both the victim and the defendant were transported to a hospital for treatment, Officer Michael Hedge of the New London police department interviewed each of them. The defendant told Hedge that she had not perceived the victim’s aggression as á punch, but merely as a grab and a push.

The defendant’s first claim is that the trial court improperly admitted statements she had given to Hedge while she was at the hospital. The defendant asserts that by admitting these hearsay statements the court violated her privilege not to incriminate herself. The defendant failed to raise this claim at trial either by a motion to suppress or by objecting to the testimony when it was given. She now seeks review under the bypass rule of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

Before a defendant can prevail on an unpreserved claim under the Evans and Golding standard, she must present, inter alia, an adequate record for our review. State v. Golding, supra, 240. The burden of providing an adequate record rests on the defendant. State v. Anderson, 209 Conn. 622, 633, 553 A.2d 589 (1989).

The persuasiveness.of the defendant’s belated hearsay claim is weakened by the failure of the record to reflect the circumstances surrounding her statement to Hedge, whether any Miranda warnings were given before she made her statement, or whether her statement was volunteered. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). In addition, it is impossible to determine, after the fact, whether these statements were entered to prove the truth of the matter asserted or to demonstrate the defendant’s state of mind. In light of the fact that the record does not substantiate the defendant’s claim, we decline to review it further.

The defendant also claims that the trial court should not have allowed Hedge to testify as to what the victim told him after the incident. She asserts that these statements were prior consistent statements and as such should not have been admitted to bolster the victim’s earlier testimony. She also asserts that these statements were impermissible hearsay. Although the defendant objected to this testimony, she did not take an exception to the court’s ruling.

Practice Book § 288 requires that trial counsel take a timely exception to a ruling on the admission of evidence in order to preserve the claim for appeal. In this way a trial court is alerted to any possible mistake while there is still time to correct it. State v. King, 216 Conn. 585, 590, 583 A.2d 896 (1990); State v. Kim, 17 Conn. App. 156,158, 550 A.2d 896 (1988). We will not review this claim. State v. Anonymous (83-FG), 190 Conn. 715, 730, 463 A.2d (1983).

The defendant next claims that the court improperly-allowed the state to impeach her credibility. The following facts are relevant to the resolution of this claim. When she was seventeen, the defendant applied for, and was granted, accelerated rehabilitation. Five years later, when she was charged with the present offense she once again applied for accelerated rehabilitation, swearing under oath that she had never been granted accelerated rehabilitation on any prior occasion. The defendant now claims that the trial court should not have allowed the state to use the defendant’s false testimony to impeach her credibility because of its devastating effect on her.

A witness may be impeached by evidence of specific acts of misconduct that relate to veracity. State v. Moore, 23 Conn. App. 479, 485, 581 A.2d 1071 (1990). In particular, a witness may be impeached by eliciting testimony that she lied under oath when applying for accelerated rehabilitation. State v. Wynter, 19 Conn. App. 654, 663-64, 564 A.2d 296, cert. denied, 213 Conn. 802, 567 A.2d 834 (1989). The trial court has broad discretion in setting the limits of cross-examination when a witness’ credibility is being attacked. Id. Thus, the trial court properly exercised its discretion in allowing the defendant to be impeached by her prior false statement.

The defendant next claims that the trial court abused its discretion by refusing to grant a two day continuance to allow the defendant to call Nancy Radoff, the attorney that represented her when she applied for accelerated rehabilitation for a second time.

The court offered a one day continuance which the defendant declined. The court also inquired as to the nature of the expected testimony of the witness and determined that it would not warrant a two day delay of the trial since the defendant had no further evidence ■ to offer. A determination to grant or deny a request for a continuance is within the discretion of the trial court and will not be disturbed on appeal absent a showing of abuse of discretion. State v. Aillon, 202 Conn. 385, 394, 521 A.2d 555 (1987). When a defendant seeks a continuance to produce an absent witness, she bears the heavy burden of proving that the court acted arbitrarily and substantially impaired her ability to defend herself. Id., 395. We conclude that the court did not abuse its discretion. The defendant next claims that the prosecutor’s closing remarks went beyond the scope of proper rebuttal argument. Although the defendant objected to the prosecutor’s remarks, the court never ruled on the objection and the defendant never took an exception. “It is elementary that to appeal from the ruling of a trial court there first must be a ruling.” State v. Kim, supra, 157. Because the defendant did not request that the court take some action on her objection, she has waived her claim.

The defendant also questions the trial court’s instruction on self-defense. Following'the court’s charge to the jury, it inquired as to any objections. The defendant responded that she took exception to the fact that the court did not instruct the jury “that the person who acts in self-defense does not have to be without fault,” as she had requested in her request to charge. In a criminal proceeding there is no duty to charge the jury in the identical language requested as long as the charge is accurate, adequate and its substance properly includes material portions of the defendant’s request. State v. Delgado, 13 Conn. App. 139,145, 535 A.2d 371 (1987). The charge that was given in the present case met these standards. The defendant’s claim is without merit.

The defendant also claims that the court improperly refused to allow two witnesses to testify about specific prior threats that the victim allegedly made to the defendant. “A victim’s violent character may be proven by reputation or opinion evidence or by evidence showing convictions for crimes of violence.” State v. Knighton, 7 Conn. App. 223, 229, 508 A.2d 772 (1986). “Except where character is directly in issue, a person’s violent character may not be established by evidence of specific acts. . . . Such evidence of specific instances of conduct is excluded . . . because it has the potential to surprise, to arouse prejudice, to multiply the issues and confuse the jury, and to prolong the trial.” (Citation omitted.) State v. Gooch, 186 Conn. 17, 21-22, 438 A.2d 867 (1982). Because the proffered testimony did not involve admissible evidence, the trial court properly excluded it.

The defendant’s final reviewable claim is that the court should not have admitted color photographs of the victim’s sixty-five stitch facial wound into evidence because they were gruesome, prejudicial and inflammatory, and tended only to provoke sympathy for the victim.

When photographs have a reasonable tendency to prove or disprove a material element of the crime charged, or shed light on a material inquiry, they “are not rendered inadmissible simply because they may be characterized as ‘gruesome.’ ” State v. Piskorski, 177 Conn. 677, 700, 419 A.2d 866, cert. denied, 444 U.S. 935,100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). The admission of such photographs is within the discretion of the trial court. The photographs in the present case were relevant to the issues presented by the case. In addition, the photographs were relevant to the issue of whether the defendant caused serious physical injury, an element of assault in the second degree under the alternative section, General Statutes § 53a-60 (a) (3), with which the defendant was charged. We conclude that the photographs were properly admitted.

The judgment is affirmed.

In this opinion the other judges concurred.

       In addition to the listed claims, the defendant asserts that because of the cumulative effect of the court’s improper evidentiary rulings and the court’s denial of her motion for a new trial, her conviction should be reversed and a new trial ordered. We do not reach these claims in light of our conclusion that the court’s rulings were correct.


author: O’Connell, J.

text:
    State of Connecticut v. James F. Hickey
    (8729)
    Daly, O’Connell and Foti, Js.
    Argued November 2, 1990
    decision released January 8, 1991

      Edward, J. Daly, Jr., with whom, on the brief, was George A. Silvestri, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Edward Wilson, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from his conviction, after a jury trial, of one count of risk of injury to a child in violation of General Statutes § 53-21 and one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1). The defendant claims that the trial court improperly (1) denied his motion to require the victim to submit to a physical examination, (2) failed to require the state to specify the exact date of the offenses, (3) failed to strike the victim’s reference to prior uncharged sexual contact with the defendant and to give, sua sponte, a limiting instruction to the jury immediately after the admission of evidence of prior misconduct, (4) allowed testimony to be reread to the jury, and (5) failed to grant his request to charge the jury on uncorroborated or vague testimony. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The defendant lived with the fourteen year old victim’s grandmother, whom the victim was visiting on the day of the crime. At a time when they were alone in the grandmother’s apartment, the defendant partially removed the victim’s clothing and engaged in vaginal intercourse with her.

I

The defendant first challenges the trial court’s denial of his motion to require that the victim be medically examined to determine if at any time in her life, up until the time of the trial, she had engaged in sexual intercourse. In support of his motion, the defendant argued that a physician from the University of Connecticut Medical Center had advised him that it was possible to determine virginity through a gynecological examination. Defense counsel also represented to the court that the victim’s hymen was still intact in the opinion of a nurse practitioner who had examined her. The defendant argues that an intact hymen is a physical condition that is inconsistent with the victim’s complaint.

The physician, however, did not testify and the argument of counsel is not a substitute for evidence. State v. Franko, 199 Conn. 481, 486-87, 508 A.2d 22 (1986). Although the nurse practitioner testified, she did not fulfill the defendant’s expectations that she would state that the victim’s hymen was intact. Instead, she testified that the victim’s genitals were normal and not indicative of whether her vagina had been penetrated.

Moreover, our statutory and case law both provide that “[pjenetration, however slight, is sufficient to complete vaginal intercourse . . . .” (Emphasis added.) General Statutes § 53a-65 (2); State v. Dubina, 164 Conn. 95, 97, 318 A.2d 95 (1972). Accordingly, there was no showing that an intact hymen was inconsistent with the defendant’s guilt. The defendant has failed to establish a nexus between the proffered evidence of virginity and a material fact or issue involved in the case. See State v. Franko, supra, 487. Phrased differently, he has not established a factual foundation for the relief requested. Therefore, the trial court properly denied the defendant’s motion for a physical examination of the victim.

II

The defendant next claims that the trial court improperly refused to require the state to specify the exact date on which the crimes allegedly occurred. The substitute information charged the defendant with having committed the crimes “on or about July, 1988.”

The victim was unable to recall the exact date and the law does not require the state to furnish information that the state does not have. State v. Laracuente, 205 Conn. 515, 519, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036,108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988). A time period of one month was as specific as the evidence warranted and was more specific than has been found constitutionally sufficient in other cases. See State v. Blasius, 211 Conn. 455, 461, 559 A.2d 1116 (1989) (between January 1, 1985, and June 22, 1985); State v. Laracuente, supra, 521 (June or July, 1984). Our courts have consistently confirmed an information’s constitutional sufficiency as long as the time period alleged has a distinct beginning and an equally clear end. State v. Saraceno, 15 Conn. App. 222, 237, 545 A.2d 1116, cert. denied, 209 Conn. 823, 824, 552 A.2d 431, 432 (1988). Although the state does have a duty to inform a defendant, within reasonable limits, of the time when the charged offense allegedly occurred, the state does not have a duty to disclose information that it does not possess. See State v. Spigarolo, 210 Conn. 359, 386, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). The time period alleged in the present case meets this standard.

It is the defendant’s burden to demonstrate why the precise date is necessary for the adequate preparation of the defense. State v. Laracuente, supra, 519. Difficulty in presenting an alibi defense without knowledge of the exact date does not warrant dismissal or the reversal of a conviction. State v. Mancinone, 15 Conn. App. 251, 257, 545 A.2d 1131, cert. denied, 209 Conn. 818, 551 A.2d 757 (1988), cert, denied, 489 U.S. 1017, 109 S. Ct. 1132,103 L. Ed. 2d 194 (1989). The defendant did not meet his burden of showing why the exact date was required.

The substitute information in the present case satisfies the requirements of our law. Thus, the court properly refused to require the prosecution to state the date of the crimes with more specificity.

Ill

The third issue arises out of an answer the victim gave to a question posed by defense counsel on cross-examination. Some background is necessary to understand the setting in which the claim arose. The defendant was initially charged with two counts of sexual assault in the second degree and two counts of risk of injury to a child. At the start of trial, the state filed a substitute information charging the defendant with only one count of each of these crimes and dropped the other two counts. At the defendant’s request, the court instructed the state not to refer to the incident represented by the dropped counts or to elicit testimony concerning it. The state complied with this instruction.

On cross-examination, defense counsel asked the victim when the incident she testified to on direct examination had taken place. The victim responded, “[W]hat do you mean by that question? The first time? Or the last time?” After a sidebar conference, of which there is no record, defense counsel resumed his cross-examination.

The defendant argues that in the sidebar conference he moved to strike the victim’s answer and the trial court denied the motion. We cannot consider any argument based on this conference because there exists no record of what took place. This is the equivalent of an attempt to base an appeal on a judge’s indication in chambers that he would deny a certain motion. No appeal is possible in that situation either. State v. Gilnite, 202 Conn. 369, 379, 521 A.2d 547 (1987); Cohn v. Mt. Zion Baptist Church, 130 Conn. 362, 366, 34 A.2d 129 (1943).

The defendant could have moved on the record to strike the comment but made a tactical decision not to do so in order to avoid highlighting it in the minds of the jurors. The defendant cannot now complain because in hindsight his trial tactic may appear unwise. Not objecting to inadmissible evidence in order not to emphasize it to the jury is an accepted trial technique utilized by experienced litigators. When subsequent events reveal that it was an imprudent choice, however, the defendant is not entitled to turn the clock back and have us reverse the judgment because the trial court did not, sua sponte, strike the testimony and give the jury a cautionary instruction. No limiting instruction was given at the time the victim made the remark in question and none was required because none was requested.

The trial court acted properly when it did not strike the testimony sua sponte or give a cautionary instruction.

IV

The defendant’s fourth claim concerns the testimony that was read back to the jury. While trial counsel rarely learns whether he made the correct tactical decision in not objecting to inadmissible evidence during the trial, this was one of those rare cases where the success or failure of the strategy soon became evident.

During its deliberations, the jury requested that a portion of the victim’s testimony be read back, including the victim’s remark, “[W]hat do you mean by the question? The first time? Or the last time?” Testimony admitted without objection enters the case as part of the evidence and may be considered by the jury. Derderian v. Derderian, 3 Conn. App. 522, 528, 490 A.2d 1008, cert. denied, 196 Conn. 810, 811, 495 A.2d 279 (1985). The rereading of testimony lies within the broad discretion of the trial court. State v. Rodriguez, 10 Conn. App. 357, 360, 552 A.2d 1250 (1987). When the testimony was read back, the trial court gave a cautionary instruction that the earlier incident had nothing to do with the crime charged and that the jury should not give it great weight or draw unreasonable inferences from it. This instruction was correct in law and the trial court did not abuse its discretion in its handling of the request to read back the testimony.

Y

Finally, the defendant complains that the trial court should not have denied his request to charge the jury on the subject of vague and uncorroborated testimony. The court’s denial was proper because it gave an acceptable charge on the general principles of witness credibility.

We will not reverse a judgment where the trial court fails to adopt a request to charge if the matter is covered in the jury charge. In the present case, the charge adequately and fairly covered the matter addressed in the defendant’s request and was a correct statement of the law. State v. John, 210 Conn. 652, 692-93, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989).

The judgment is affirmed.

In this opinion the other judges concurred.

       The complete colloquy is as follows:
      “[Defense Counsel]: Now, this incident that you told the ladies and gentlemen of the jury about, and Judge Sullivan, with Mr. Hickey, when did that happen? When did it take place?
      “[Witness]: Umm, what do you mean by that question? The first time? Or the last time?
      “[Defense Counsel]: I mean the incident that you told us about. You told us . .

        “[Witness]: Oh, okay.
      “[Defense Counsel]: That there was an incident, you described an incident that took place at your grandmother’s house. But before I ask you that, let me have just a minute.
      “[Defense Counsel]: May we approach the bench, Your Honor?
      “The Court: Yes sir.”

       Defense counsel ingenuously attempted to fill this lacuna by including his own affidavit in the appendix to the defendant’s brief. Because an appellate court may not decide a case on matters dehors the record, we cannot consider the affidavit. State v. Evans, 9 Conn. App. 349, 352-53, 519 A.2d 73 (1986).

       We do not presume to indicate that the motion to strike would have to have been made in the presence of the jury. A common procedure of asking that the jury be excused and then moving to strike, in the jury’s absence, might also have focused the jury’s attention on the remark.

       Defendant’s reliance on State v. Ouellette, 190 Conn. 84, 459 A.2d 1005 (1983), is misplaced for three reasons. First, the testimony in Ouellette was deliberately elicited by the state rather than its being an inadvertent answer to a defense question and no limiting instruction was given at any time. Reversal is rarely warranted when an inadmissible answer is elicited by the defense. State v. Nowakowski, 188 Conn. 620,623,452 A.2d 938 (1982). Second, in Ouellette there was a proper record and, third, in Ouellette there was no indication that defense counsel, as a matter of trial tactics, was trying not to emphasize the remark.

       The instruction given the jury immediately before the testimony was read back was as follows: “We did find a small segment, which was in response to question by defense counsel. We’re going to play that for you, because you asked to hear it. I can tell you that, however, the primary purpose of this, these proceedings is to determine whether or not the incidents took place in July, 1988. And while I will let you hear this portion of the testimony of the [victim], inasmuch as it was given in response to a question asked by defense counsel, I would urge you not to give it any great weight, or draw any unreasonable inferences from what it is that you’re about to hear.”


author: Lavery, J.

text:
    State of Connecticut v. Peter C. Dawson
    (8444)
    Nokcott, Lavery and Landau, Js.
    Argued November 2, 1990
    decision released January 8, 1991

      Arthur P. Meisler, for the appellant (defendant).

      Marjorie Allen Dauster, deputy assistant state’s attorney, with whom, on the brief, were Donald Caldwell, state’s attorney, and Patricia A. Swords, assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant appeals from the judgment of conviction rendered after a jury found him guilty of manslaughter in the second degree with a motor vehicle while intoxicated in violation of General Statutes § 53a-56b and of misconduct with a motor vehicle in violation of General Statutes § 53a-57. This prosecution arose out of an accident involving an automobile driven by the defendant and an automobile driven by David Levine, who was killed as a result of the accident.

The defendant claims that (1) the trial court should have granted his motion to strike the evidence of the state’s toxicologist, Charles Reading, because the witness did not extrapolate, calculate or compute what the defendant’s blood alcohol level was at the time of the accident, and (2) there was insufficient evidence to support the defendant’s conviction of the crime of misconduct with a motor vehicle. We affirm the judgment of the trial court.

I

Motion to Strike

On appeal, the defendant claims that the testimony given by the state’s toxicologist invited speculation by the jury because the doctor was unable to render an opinion as to the exact blood alcohol level at the time of the offense and the precise effects of that alcohol level on the defendant.

This court recently ruled that proof of the operation of a motor vehicle while intoxicated, for the purposes of proving the crime of second degree assault with a motor vehicle under General Statutes § 53a-60d, does not require that an expert specify the defendant’s blood alcohol content at the time of the offense by extrapolating back from the time of the blood test. State v. Geisler, 22 Conn. App. 142, 166, 576 A.2d 1283, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990). This conclusion was based on the fact that the statute proscribing assault with a motor vehicle does not provide for a per se violation based on the blood alcohol content. Id. Further, the statute contains no language requiring “the analysis” of the blood tests to demonstrate that the test results accurately reflect the blood aleohol content at the time of the offense. This same rationale applies to General Statutes § 53a-56b. The crime of manslaughter in the second degree with a motor vehicle under General Statutes § SSa-SOb is analogous to assault in the second degree with a motor vehicle as defined in General Statutes § 53a-60d in that both crimes require proof of a harm occurring as a consequence of the effect of alcohol. We conclude, therefore, that proof of operation under the influence under General Statutes § 53a-56b does not require expert testimony as to the defendant’s blood alcohol content at the time of the offense.

II

Insufficiency of Evidence

When reviewing a challenge based on insufficient evidence, we are required to apply a two-pronged analysis. We first review the evidence presented at trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, from the facts established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Marra, 215 Conn. 716, 726, 579 A.2d 9 (1990); State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985); accord State v. Callahan, 21 Conn. App. 654, 657, 575 A.2d 704 (1990).

General Statutes § 53a-57 (a) provides that a person is guilty of misconduct with a motor vehicle when, with criminal negligence in the operation of a motor vehicle, he causes the death of another person. General Statutes § 53a-3 (14) provides that “[a] person acts with ‘criminal negligence’ with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation . . . .”

In the present case, from the cumulative effect of the facts and all inferences reasonably drawn therefrom, the jury could have reasonably reached the following conclusions. On the night of October 16, 1987, the defendant went to two bars where he consumed enough alcohol to achieve a blood alcohol content of at least .16. He entered his motor vehicle to drive to another bar and in so doing failed to perceive that he was taking a substantial and unjustifiable risk of being unable to control his motor vehicle and killing another person. The defendant proceeded at a rate of speed greater than the posted speed limit, and in so doing failed to perceive the substantial and unjustifiable risk of being unable to control his car and killing another person. When the defendant entered an s-curve, on a familiar road, at a speed greater than the posted speed but less than the critical design speed, he was not able to keep his car on the roadway and he drove his car onto the soft shoulder. Upon reentering the roadway, the defendant locked his brakes, skidded 120 feet, crossed the center line and hit David Levine’s car. The jury could have reasonably decided not to credit the defendant’s claim that the accident occurred because the victim had crossed the center line. The jury also could have found, beyond a reasonable doubt, that the risks of being unable to control his car after drinking and of killing another while on the road were such that the failure to perceive them constituted a gross deviation from the standard of care of a reasonable person. For all of the foregoing reasons, we hold that there was ample evidence for a jury to find, beyond a reasonable doubt, that the defendant acted with criminal negligence in the operation of a motor vehicle causing the death of David Levine.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-56b provides: “manslaughter in the second DEGREE WITH A MOTOR vehicle: CLASS c felony, (a) A person is guilty of manslaughter in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of intoxicating liquor or any drug or both, he causes the death of another person as a consequence of the effect of such liquor or drug.
      “(b) Manslaughter in the second degree with a motor vehicle is a class C felony and the court shall suspend the motor vehicle operator’s license or nonresident operating privilege of any person found guilty under this section for one year.”

       General Statutes § 53a-60d provides: “assault in the second degree with a motor vehicle: class d felony, (a) A person is guilty of assault in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of intoxicating liquor or any drug or both, he causes serious physical injury to another person as a consequence of the effect of such liquor or drug.
      “(b) Assault in the second degree with a motor vehicle is a class D felony and the court shall suspend the motor vehicle operator’s license or nonresident operating privilege of any person found guilty under this section for one year.”


author: Foti, J.

text:
    State of Connecticut v. One 1987 Chevrolet Camaro
    (9179)
    Dupont, C. J., Foti and Landau, Js.
    Argued December 5, 1990
    decision released January 8, 1991

      Paul J. Yamin, for the appellant (Lorraine Dumchowski).

      James M. Ralls, deputy assistant state’s attorney, with whom, on the brief, were John Connelly, state’s attorney, and Edward Ricciardi, assistant state’s attorney, for the appellee (state).
   Foti, J.

The state commenced this in rem action pursuant to General Statutes § 54-33g (a) against an automobile used in the commission of various criminal offenses. On March 19,1990, the state and the owner of the automobile, through her counsel, entered into a stipulation that led to a judgment declaring the vehicle a nuisance and ordering it forfeited. On April 9,1990, the owner of the automobile, whose son was charged with committing a criminal offense with the vehicle, filed a motion, through substitute counsel, to open the judgment, and on May 4, 1990, after a hearing, the court denied the motion. The owner appealed the denial. She alleges that the trial court abused its discretion in refusing to open the judgment because she was not present in court during the in rem proceeding, and the disposition was without her knowledge of the nature of the proceedings and without the full knowledge of the underlying facts upon which the proceedings were predicated.

We must consider the owner’s claim with due regard to the limited nature of our review of motions to open arising under Practice Book § 326. “ ‘A motion to open and vacate a judgment filed during the four months after [the] judgment was rendered is addressed to the court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action.’ ” (Citations omitted.) Acheson v. White, 195 Conn. 211, 214-15, 487 A.2d 197 (1985), quoting Celanese Fiber, Division of Celanese of Canada, Ltd. v. Pic Yarns, Inc., 184 Conn. 461, 466-67, 440 A.2d 159 (1981).

Viewed against this background, we must determine whether the owner’s claims that she did not understand the nature of the proceedings and that the judgment was rendered without her full knowledge and consent are supported in the record, so as to compel our concluding that the court’s findings are clearly erroneous. Practice Book § 4061.

The trial court heard testimony from the owner and from the attorney who represented her in the in rem proceeding. The attorney testified that he had discussed with her the agreement and the ramifications as they involved her and her son, who had allegedly used the car for criminal purposes, that she agreed to the stipulated judgment and was aware of the consequences, favorable and unfavorable in both the civil and criminal matters. The court found “that there was an agreement reached with the state. That was communicated to her, and that she was aware of the result, the deal, the disposition that was entered into by her attorney and thus by her.”

The trial court was entitled, in its role as arbiter of credibility, to believe the attorney’s testimony that the owner knew about, fully understood and agreed to the stipulated judgment. See Varley v. Varley, 189 Conn. 490, 493, 457 A.2d 1065 (1983). The trial court might reasonably have concluded that her consent to the stipulated judgment was motivated by her concern for a favorable outcome of her son’s criminal matter. The trial court obviously found the testimony of the attorney to be credible. We therefore conclude that the owner did not sustain her burden of demonstrating that the trial court abused its discretion in denying her motion to open the judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The owner did not seek an articulation of the trial court’s decision.


author: Landau, J.

text:
    Georgia Kilpatrick v. Connecticut Education Association, Inc.
    (8216)
    Spallone, Cretella and Landau, Js.
    Argued October 3, 1990
    decision released January 8, 1991

      Georgia Kilpatrick, pro se, the appellant (plaintiff).

      William J. Dolan, for the appellee (defendant).
   Landau, J.

The plaintiff, acting pro se, appeals from the judgment of the trial court upholding two arbitrators’ decisions regarding the annual service fee to be paid to the Connecticut Education Association (CEA). The plaintiff challenges the trial court’s decision regarding the nonapplicability of General Statutes § 52-416 (a). The plaintiff further claims that the trial court improperly determined that the American Arbitration Association (AAA) rule regarding the time limit for an award was directory and that it improperly applied federal labor law. As an alternate ground upon which the judgment may be affirmed; Practice Book § 4013; the defendant claims that the trial court improperly denied its motions to dismiss. Because these proceedings occurred pursuant to an agency shop arrangement, the trial court properly refrained from applying § 52-416 (a) and properly followed federal labor law and policy. We affirm the trial court’s judgment.

The facts are not in dispute. The plaintiff is a teacher employed by the Fairfield board of education but is not a member of the local union, the Fairfield Education Association, Inc., (FEA). This association is the exclusive bargaining representative for Fairfield public school teachers. Members of the FEA are also required to join the CEA and the National Education Association (NEA).

General Statutes § 10-153a (b) authorizes the creation of agency shop agreements whereby a union that is the exclusive representative of a group of employees for the purposes of collective bargaining may charge nonunion employees a service fee to defray the costs of collective bargaining. Pursuant to Chicago Teachers Union v. Hudson, 475 U.S. 292, 106 S. Ct. 1066, 89 L. Ed. 2d 232 (1986), agency shop arrangements are permissible as long as certain procedural requirements are met. In addition to requiring adequate information about the basis for the proportionate share and an escrow for the amounts reasonably in dispute, the court articulated a new procedural requirement for a “reassonably prompt decision by an impartial decision-maker.” Id., 307, 310. The CEA has adopted such a procedure in conformity with Hudson. See Andrews v. Education Assn, of Cheshire, 653 F. Sup. 1373 (D. Conn.), aff'd, 829 F.2d 335 (2d Cir. 1987). In addition, our Supreme Court, in a previous action by this plaintiff, has determined that nonunion members may be assessed a service fee not greater than the total dues of the FEA, the CEA and the NEA relating to the costs of collective bargaining, contract administration and grievance adjustment. Kilpatrick v. Board of Education, 206 Conn. 25, 30, 535 A.2d 1311 (1988).

In its procedure for determining the amount of service fee, the CEA requires that objections to the service fee be raised before December 15 of each year. Once an objection has been raised, the CEA requests the AAA to appoint an arbitrator to hold a hearing in accordance with the AAA’s rules for impartial determination of union fees. These rules specify that an arbitrator has thirty days from the close of the proceedings in which to render a decision.

The plaintiff objected to the service fee in the 1986-87 and 1987-88 school years and two sets of hearings, one for each school year, were held in accordance with the CEA’s procedure. The first set of hearings was held on March 12, April 4, and April 10, 1987. The parties submitted briefs to the arbitrator on August 10,1987. The arbitrator then issued a two part decision with the first part issued on October 13 and the second part issued on November 16,1987. The second set of hearings, before another arbitrator, was held on March 21 and March 23, 1988. The parties submitted briefs on July 8,1988, and the arbitrator issued his decision on August 29,1988. He issued a more detailed opinion on September 20,1988. The plaintiff objected to the delay of both awards before they were rendered. Both arbitrators attributed the delay to the large amount of evidence and testimony.

The plaintiff filed an application to vacate the first part of the arbitration award for the 1986-87 school year on November 23,1987. She filed an identical application on December 9, 1987, with respect to part two of the arbitrator’s decision. The defendant in turn filed motions to dismiss that were denied. In response to the arbitrator’s decision during the 1987-88 school year, the plaintiff filed an application to vacate that award on October 11,1988. The defendant again filed a motion to dismiss that was denied. The plaintiff sought to vacate these awards based on General Statutes § 52-416 (a), which provides that unless otherwise provided, an arbitrator must render the award within thirty days from the close of the hearing or the submission of additional material after completion of the hearing.

After consolidation of these actions, the trial court, in its memorandum of decision, concluded that General Statutes § 52-416 (a) is not applicable to the present case. In addition, the court concluded that the thirty day time period provided in the agreement itself was directory rather than mandatory and that, pursuant to Hudson, all that is required is that a decision be rendered within a “reasonably prompt” time period.

The Connecticut Teacher Negotiation Act, General Statutes §§ 10-153a through 10-153n, specifically authorizes the creation of agency shop arrangements. General Statutes § 10-153a. “Historically, Connecticut statutes dealing with labor relations have been closely patterned after the National Labor Relations Act.” West Hartford Education Assn., Inc. v. DeCourcy, 162 Conn. 566, 578, 295 A.2d 526 (1972). Because the Teacher Negotiation Act is essentially patterned on the National Labor Relations Act, federal judicial interpretations of the federal act and the underlying policies are “of great assistance and persuasive force in the interpretations” of the Connecticut statute. Hartford Principals’ & Supervisors’ Assn. v. Shedd, 202 Conn. 492, 503, 522 A.2d 264 (1987); Dowaliby v. Hartford Federation of Teachers, Local 1018,180 Conn. 459, 462, 429 A.2d 950 (1980); West Hartford Education Assn., Inc. v. DeCourcy, supra, 578-79. In addition, labor relations statutes are remedial in nature and as such “should be liberally construed to accomplish [their] objectives.” Board of Education v. Connecticut State Board of Labor Relations, 190 Conn. 235, 241, 460 A.2d 1255 (1983). In light of these precedents, we shall look to federal case law in reviewing the plaintiffs claims regarding the resolution of the payment of the service fee pursuant to the agency shop agreement. In doing so, we conclude that the trial court did not improperly apply federal labor law.

The plaintiff’s remaining two claims are interrelated and shall be discussed together. The plaintiff essentially claims that the trial court should not have concluded that the decisions rendered by both arbitrators were timely because General Statutes § 52-416 (a) and the AAA guidelines for issuance of decisions require that an arbitrator render a decision within thirty days from the close of the proceedings.

The defendant cites West Rock Lodge No. 2120 v. Geometric Tool Co., 406 F.2d 284, 286 (2d Cir. 1968), for the proposition that “any limitation upon the time in which an arbitrator can render his award [is] a directory limitation, not a mandatory one . . . .’’WestRock involved the issue of whether General Statutes § 52-416 should be incorporated into the federal Labor Management Relations Act. The court held that the Connecticut statute should not be adopted into this federal law. Moreover, the court noted that § 52-416 (a) applies to arbitrations in general, unlike § 31-98 which is a directory time period in the state labor mediation and arbitration statute. West Rock Lodge No. 2120 v. Geometric Tool Co., supra, 287. The court further determined that it should always be within a court’s discretion to uphold a late award “if no objection to the delay has been made prior to the rendition of the award or there is no showing that actual harm to the losing party was caused by the delay.” Id., 286. In reaching its conclusion, the court focused on the underlying goals of federal labor law policy, especially the formation of collective bargaining agreements and the private and relatively speedy settlement of disputes. Id. The court noted that the “private settlement of a dispute is one of the most desired federal goals and is well within the policy of furthering consensual processes.” Id.

In essence, the issue before us involves the service fee to be paid pursuant to an agency shop agreement. As in Abood v. Detroit Board of Education, 431 U.S. 209, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977), where the United States Supreme Court noted that the Michigan statutory agency shop provision promoted the same interests as those found in federal labor law, the Connecticut agency shop provision seeks to promote labor peace and the elimination of free riders. General Stat-

utes § 10-153a (b) requires nonunion members of a bargaining unit “to pay their fair share of the costs of collective bargaining, contract administration and grievance adjustment” to the exclusive bargaining representative. Kilpatrick v. Board of Education, supra, 29.

Application of General Statutes § 52-416 (a) in the context of an agency shop agreement would be misplaced. The CEA has merely chosen to adopt arbitration as its method of dispute resolution. The only issue to be resolved is the amount of the fee, not whether the fee will be paid. The latter issue has already been affirmatively resolved. See Kilpatrick v. Board of Education, supra. Applying Connecticut’s general arbitration statute would allow the plaintiff to forego paying a service fee while benefiting from the union’s collective bargaining negotiations. To allow this would undermine the purpose of agency shop arrangements of furthering the consensual process and decreasing the incidents of free riders.

In accordance with West Rock, “it should always be within a court’s discretion to uphold a late award if no objection to the delay has been made prior to the rendition of the award or there is no showing that actual harm to the losing party was caused by the delay.” West Rock Lodge No. 2120 v. Geometric Tool Co., supra. Although the plaintiff objected to the delay prior to the rendition of the awards, she has failed to show actual harm. As we have previously noted, the only issue in dispute is the amount of the service fee. Pursuant to agency shop arrangements, nonunion employees must pay a service fee to defray the cost of collective bargaining, contract administration and grievance adjustment. The CEA procedures provide for the recalculation of fees and the return of excess amounts after the arbitrator’s award has been rendered. See Andrews v. Education Assn, of Cheshire, 829 F.2d 335, 338 (2d Cir. 1987). In addition, disputed amounts are placed in escrow during the pendency of the proceeding and neither party has the use of the disputed funds. The plaintiff therefore has failed to show actual harm.

We hold that § 52-416 (a) is not applicable to these proceedings, that the time limit for rendering awards contained in the CEA’s procedures are directory and that, under the circumstances of this case, the arbitrators’ decisions were rendered within a reasonably prompt time period as suggested by federal labor policy and procedure.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-416 (a) provides: “If the time within which an award is rendered has not been fixed in the arbitration agreement, the arbitrator or arbitrators or umpire shall render the award within thirty days from the date the hearing or hearings are completed, or, if the parties are to submit additional material after the hearing or hearings, thirty days from the date fixed by the arbitrator or arbitrators or umpire for the receipt of the material. An award made after that time shall have no legal effect unless the parties expressly extend the time in which the award may be made by an extension or ratification in writing.”

       The defendant filed motions to dismiss, challenging the court’s subject matter jurisdication under General Statutes § 52-418. The court was correct in finding that the procedure is an arbitration as agreed upon by the terms of the controlling instruments and therefore subject to the court’s jurisdiction. The arbitration clause in the agreement served as the written submission; Vail v. American Way Homes, Inc., 181 Conn. 449, 451, 435 A.2d 993 (1980); and the parties, having agreed to the procedure and having delineated the arbitrator’s authority, were bound by those limits. Waterbury Board of Education v. Waterbury Teachers Assn., 168 Conn. 54, 62, 357 A.2d 466 (1975); see also Twin Towers Associates v. Gilbert Switzer & Associates, 4 Conn. App. 538, 540, 495 A.2d 735, cert. dismissed, 197 Conn. 811, 499 A.2d 61 (1985); Trumbull v. Trumbull Police Local 1745, 1 Conn. App. 207, 211-12, 470 A.2d 1219 (1984).

       General Statutes § 10-153a (b) provides in pertinent part: “Nothing in this section or in any other section of the general statutes shall preclude a local or regional board of education from making an agreement with an exclusive bargaining representative to require as a condition of employment that all employees in a bargaining unit pay to the exclusive bargaining representative of such employees an annual service fee . . . which represents the costs of collective bargaining, contract administration and grievance adjustment; and that such service fee be collected by means of a payroll deduction from each employee in the bargaining unit.”

       The court, although stating that a full administrative hearing is not required, failed to specify what type of a proceeding would fulfill this procedural requirement. The court, however, stated that “an expeditious arbitration might satisfy the requirement . . . . ” Chicago Teachers Union v. Hudson, 475 U.S. 292, 308 n.21,106 S. Ct. 1066, 89 L. Ed. 2d 232 (1986).

       In Abood, the Supreme Court reviewed a Michigan statute authorizing the creation of agency shop agreements and held that service charges could be required only for those activities germane to the cost of negotiating and administering a collective bargaining agreement. Abood v. Detroit Board of Education, 431 U.S. 209,235-36,97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977). In reviewing the Michigan statute, the court noted that the Michigan statute was broadly modeled after federal labor law and that the governmental interests in maintaining labor peace and in minimizing the threat of “freeriders” advanced under the state’s agency shop provision were similar to those under federal law. Id., 224.


author: Spallone, J.

text:
    Clarette Lemonious v. J. William Burns, Commissioner of Transportation, et al.
    (8662)
    Dupont, C. J., Spallone and Lavery, Js.

      Argued November 7, 1990
    decision released January 15, 1991

      Allisan Lee Adams, for the appellant (plaintiff).

      Louis B. Blumenfeld, with whom, on the brief, were Lorinda S. Coon and Richard Ferris, for the appellee (named defendant). .
   Spallone, J.

The plaintiff appeals from the judgment of the trial court granting the defendant’s motion to set aside the jury’s verdict for the plaintiff. On appeal, the plaintiff asserts that the trial court improperly granted the motion to set aside the verdict because its decision was based on a question of fact that is constitutionally reserved for the jury’s determination. Specifically, the plaintiff claims that the jury could have reasonably and logically inferred from the evidence presented at trial that the defendant had constructive notice of the defective and dangerous condition of a public highway. We agree and reverse the judgment of the trial court.

The jury was presented with evidence to support the facts as follows. On August 20,1984, in the early morning, the plaintiff, while walking on a public highway to a public bus stop, stumbled into a hole located in the highway causing serious personal injuries, medical expenses, pain and suffering, impaired earning capacity and a 5 percent permanent disability of her lower back and left lower extremity. The hole was located approximately six feet from the southwest corner of the intersection of Blue Hills Avenue and Hubbard Street in Bloomfield. The hole was approximately one and one-half feet deep and approximately ten and three-eighths inches wide and was within an area where excavation and construction were being performed under the authority of the defendant commissioner of transportation (commissioner).

After due notice pursuant to General Statutes § 13a-144, the plaintiff brought suit against the commissioner asserting that as a result of the commissioner’s breach of the statutory duty under § 13a-144 with regard to the maintenance of highways, she was seriously injured. The evidence presented at trial indicated that construction was in progress at the site near the bus stop prior to the defendant’s injury and that, although holes might have been left uncovered overnight at the construction site, special precautions to prevent accidents were usually taken prior to weekend shutdowns. Testimony disclosed that the foreman’s daily report should have indicated whether such precautions were taken at the site. The contractor’s records however do not indicate that such precautions had been taken on the weekend prior to the defendant’s injuries. After deliberation, the jury rendered a general verdict for the plaintiff and awarded her $85,000 in damages.

The commissioner then moved to set aside the verdict pursuant to Practice Book § 320, claiming that (1) the verdict reached by the jury was not supported by the evidence, (2) the court improperly denied the defendant’s motion for a directed verdict at the close of the plaintiff’s case, (3) there was evidence that the road was closed, (4) the jury instruction regarding General Statutes § 13a-145 was inadequate, and (5) the verdict was excessive. The state trial referee granted the motion to set aside the verdict solely on the ground that the verdict was not supported by the evidence. The trial court then granted the commissioner’s motion for judgment notwithstanding the verdict. This appeal followed.

A trial court’s discretion is limited when setting aside a jury verdict. Paramount is the basic principle that it must not usurp the factfinding function of the jury. It is well established law that, where a jury trial is elected, “[IJitigants have a constitutional right to have issues of fact decided by the jury . . . .” Vetre v. Keene, 181 Conn. 136, 138, 434 A.2d 327 (1980); Hanauer v. Coscia, 157 Conn. 49, 53, 244 A.2d 611 (1968); Bambus v. Bridgeport Gas Co., 148 Conn. 167, 169, 169 A.2d 265 (1961). “The right to a jury trial is fundamental in our judicial system, and . . . the right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of a trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded [persons] passed upon by the jury and not by the court.” Camp v. Booth, 160 Conn. 10,13, 273 A.2d 714 (1970); Sepe v. Deemy, 9 Conn. App. 524, 527, 520 A.2d 237 (1987). Further, “[t]he conclusion of a jury on issues of fact, if it is one at which honest [persons] acting fairly and intelligently could arrive reasonably, must stand, even though the opinion of the trial court and [this court] might be that a different result should have been reached.” Living & Learning Centre, Inc. v. Griese Custom Signs, Inc., 3 Conn. App. 661, 663, 491 A.2d 433 (1985). The trial judge is, therefore, limited to determining whether there is any evidence to support the verdict. Berndston v. Annino, 177 Conn. 41, 43-44,411 A.2d 36 (1979).

The key question in this case is whether there was evidence from which the jury could have inferred that the hole was caused by the construction work and existed for a length of time sufficient to establish constructive notice on the part of the commissioner. Obviously, the existence of the defect, its cause and duration are questions for the trier of fact, here the jury. Circumstantial evidence as to the size of the defect, its causation and duration was presented and is competent evidence. Young v. West Hartford, 115 Conn. 384, 387,161 A. 523 (1932). The evidence presented in this case, though circumstantial, addresses the question of whether the defect existed for a sufficient length of time to put the commissioner on constructive notice so that he could remedy the dangerous conditions. Zarembski v. Three Lakes Park, Inc., 177 Conn. 603, 609, 419 A.2d 339 (1979). “What constitutes a reasonable length of time within which the defendant should have learned of the defect, how that knowledge should have been acquired, and the time within which, thereafter, the defect should have been remedied are matters to be determined in the light of the particular circumstances of each case.” Long v. Savin Rock Amusement Co., 141 Conn. 150, 153, 104 A.2d 221 (1954).

In this case, the plaintiff presented ample evidence to sustain the jury’s verdict. Where there is evidence, direct or circumstantial, even though quantitatively slight, that supports the jury’s verdict, an intrusion by the trial court is unwarranted. Whether the plaintifff sustained her burden of proof is a question for the jury to decide. Carfora v. Globe, Inc., 5 Conn. App. 526, 529, 500 A.2d 958 (1985), cert. denied, 198 Conn. 804, 503 A.2d 1186 (1986). Because there was ample evidence to support the jury’s determination, the trial court improperly determined that that evidence was insufficient to support the jury’s verdict.

Because the trial court expressly stated that it based its verdict solely on the ground of insufficient evidence, this case must be remanded for the trial court’s resolution of the other issues raised in the defendant’s motion to set aside the verdict.

The judgment is reversed and the case is remanded to the trial court for further proceedings to resolve the issues raised in the defendant’s motion to set aside the verdict.

In this opinion the other judges concurred.

       The original defendants in this action were J. William Burns, commissioner of transportation, and the town of Bloomfield. The case was withdrawn as to the defendant town of Bloomfield.

       General Statutes § 13a-144 provides in pertinent part: “damages for INJURIES SUSTAINED ON STATE HIGHWAYS OR SIDEWALKS. Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair . . . may bring a civil action to recover damages sustained thereby against the commissioner in the superior court. No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner.”

       Practice Book § 320 provides: “Motions in arrest of judgment, whether for extrinsic causes or causes apparent on the record, motions to set aside a verdict and motions for new trials, unless brought by petition served on the adverse party or parties, must be filed with the clerk within five days after the day the verdict is accepted or judgment rendered, exclusive of such days as the clerk’s office is not open; provided that for good cause the court may extend this time. The clerk shall notify the trial judge of such filing. Such motions shall state the specific grounds upon which counsel relies.


text:
    Thermoglaze, Inc. v. Morningside Gardens Company
    (8846)
    Dupont, C. J., Spallone and Laveky, Js.
    Argued November 7, 1990
    decision released January 15, 1991

      Gina A. Pasquini, with whom, on the brief, was Gaetano Ferro, for the appellant (defendant).

      Erie L. Reinhen, for the appellee (plaintiff).
   Spallone, J.

The defendant appeals from the judgment of the trial court accepting the report of the attorney trial referee. On appeal, the defendant claims that the attorney trial referee improperly found facts contrary to the evidence presented and improperly concluded that an alleged amendment to the parties’ contract was unsupported by consideration. We disagree with the defendant and affirm the judgment of the trial court.

Evidence presented to the attorney trial referee supports the following facts. The plaintiff, Thermoglaze, Inc., a corporation in the business of furnishing and installing windows, and the defendant, Morningside Gardens Company, the owner of an apartment complex, entered into a written contract that provided, inter alia, that the plaintiff, in consideration of the payment of $88,960, would furnish and install 444 windows in the apartment complex. The contract contained a provision leaving the selection of color (either bronze or white) open, and provided that the defendant would exercise its choice so that the plaintiff could order the appropriate windows from its manufacturers. Lewis McClaine, the plaintiff’s president, signed the contract on July 9,1986. Frank Alebrande, the defendant’s representative, signed the contract on August 19, 1986, without making a decision as to the color of the windows. Alebrande stated that he would make a decision as to the window color at the time he paid the first installment due under the contract. When the first installment was paid, three or four weeks later, Alebrande specified white windows, which the plaintiff ordered, delivered to the job site, and, at the behest of and with the permission of Alebrande, stored in the office of the apartment complex maintenance supervisor. The plaintiff’s crew took three to four hours to unload and to store the windows. The defendant’s maintenance man, his assistant, and the manager of the complex were present during this process. The plaintiff stored the windows on the site from December 15, 1986, to January 5, 1987, when installation commenced. During that time, although various matters were discussed by the parties, the defendant never lodged a complaint with regard to the color of the windows.

The plaintiff began installing the windows on January 5,1987, without any objection from the defendant. Over a two week period, 195 windows were installed, after which the defendant’s representative advised the plaintiff that the owner’s wife was unhappy with the white color and that the defendant wanted to change to bronze. The defendant contended that it had ordered bronze windows in the first instance, and that the plaintiff mistakenly had ordered and proceeded to install white windows. The defendant claimed that upon observing the installation of white windows the defendant’s representative promptly told the plaintiff to cease installation.

The work stopped upon the installation of 195 windows and the parties thereafter negotiated in an attempt to resolve the resultant impasse. On January 16, 1987, McClaine signed and delivered a letter stating that the plaintiff would replace the white windows with bronze windows. On January 17, 1987, the plaintiff’s president and the defendant’s representative signed a memorandum stating that the plaintiff would install bronze windows and bronze exterior trim at no additional cost to the defendant and further stated: “This is an amendment to the contract signed on 8/19/86.”

McClaine testified that he had agreed to the change to bronze windows in exchange for the defendant’s promise to make up the substantial financial loss to the plaintiff on the contract in question by awarding lucrative contracts on other properties controlled by the defendant. The defendant denied making any such promises and avers that the plaintiff was merely correcting its error in ordering and installing the wrong ■ color windows.

Bronze windows were never ordered by the plaintiff, nor did it install any additional windows at the defendant’s complex. The plaintiff attributes this to the defendant’s refusal, despite repeated requests, to commit itself specifically and firmly to future work contracts, without which the plaintiff was unwilling to undertake the substantial expense of ordering, substituting and installing new bronze windows.

The attorney trial referee, after considering all the evidence, stated, “the trial referee has accepted in substance the testimony of plaintiffs’ witness, Mr. McClaine. The referee has paid particular attention to the witnesses themselves as they testified, observed their demeanor on the stand, their expressions, their mannerisms, and the other indices by which candor, sincerity and truthfulness are commonly found or found wanting. The testimony of Mr. McClaine is both plausible and credible. Accordingly, the referee finds the defendant has breached the August 19, 1986 contract by refusing to allow the plaintiff to complete the installation and by refusing to pay the amount due under the contract.”

In a careful analysis of the circumstances leading to the January 16 and 17 writings, the referee found the three dispositive issues in this case in favor of the plaintiff. She found, first, that the parties in the original contract agreed that the windows would be white, second, that the agreement by the plaintiff to change, purchase and install bronze windows was a substantial promise by the plaintiff greatly increasing its cost, and, third, the new promise of the plaintiff was unsupported by consideration. Upon review, the trial court accepted the attorney trial referee’s report and upheld her decision. The defendant then brought this appeal.

The defendant is attacking the factual findings of the referee. Those factual findings are not clearly erroneous. See Practice Book § 4061; Kimberly-Clark Corporation v. Dubno, 204 Conn. 137, 153, 527 A.2d 679 (1987); Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 491 A.2d 1084, cert. denied, 474 U.S. 920,106 S. Ct. 250, 88 L. Ed. 2d 258 (1985).

Having found those underlying facts, the referee correctly concluded that the amendment to the contract was unenforceable. “The doctrine of consideration is fundamental in the law of contracts, the general rule being that in the absence of consideration an executory promise is unenforceable.” State National Bank v. Dick, 164 Conn. 523, 529, 325 A.2d 235 (1973). A modification of an agreement must be supported by valid consideration and requires a party to do, or promise to do, something further than, or different from, that which he is already bound to do. Id; Dahl v. Edwin Moss & Son, Inc., 136 Conn. 147, 155, 69 A.2d 562 (1949); Simone v. Kirschner, 100 Conn. 427, 429, 124 A. 20 (1924). “It is an accepted principle of law in this state that when a party agrees to perform an obligation for another to whom that obligation is already owed, although for lesser remuneration, the second agreement does not constitute a valid, binding contract. See, e.g., Dahl v. Edwin Moss & Son, Inc., [supra]; Gruber v. Klein, 102 Conn. 34, 127 A. 907 [1925]; Warren v. Skinner, 20 Conn. 559 [1850]. ‘The basis of the rule is generally made to rest upon the proposition that in such a situation he who promises the additional [work] receives nothing more than that to which he is already entitled and he to whom the promise is made gives nothing that he was not already under legal obligation to give. 1 Williston on Contracts, § 130.’ Blakeslee v. Board of Water Commissioners, 106 Conn. 642, 652,139 A. 106 [1927].” Brian Construction & Development Co. v. Brighenti, 176 Conn. 162, 166, 405 A.2d 72 (1978). Simone v. Kirschner, supra.

The trial court was correct in accepting the attorney trial referee’s recommendation because there was ample evidence to support the attorney trial referee’s factual findings, and the conclusions reached were in accordance with the applicable law.

The judgment is affirmed.

In this opinion the other judges concurred.