author: Borden, J.

text:
    Sheldon Streicher v. Salo Resch
    (7756)
    Borden, Spallone and Norcott, Js.
    Argued December 19, 1989
    decision released February 27, 1990

      Paul E. Barrett, Jr., for the appellant (defendant).

      Karen E. Souza, with whom, on the brief, was Alan E. Silver, for the appellee (plaintiff).
   Borden, J.

The plaintiff, a diamond dealer, brought this action against the defendant, Salo Resch doing business as 47th Street Diamond Company (47th Street), in his individual capacity for money due on certain diamonds not returned by the defendant after they were entrusted to him for inspection. The defendant appeals from the trial court’s judgment, after a court trial, for the plaintiff. On appeal, he assigns three claims of error based on the court’s reliance on certain inf ormation that was never offered or admitted into evidence. Specifically, the defendant argues that the trial court erred (1) in basing its decision on a trade name certificate, (2) in basing its decision on records of the office of the secretary of the state that were not offered or admitted into evidence, and (3) in finding for the plaintiff because the evidence before the court did not support the judgment rendered. We find error.

From December, 1986, to July, 1987, the defendant’s son, Bert Resch, an employee of 47th Street, on occasion took possession of certain diamonds belonging to the plaintiff. Each of these transactions was evidenced by a document known in the diamond trade as a “memorandum.” Five of the six memoranda stated that the purchaser was Bert Resch, 47th St. Diamond Inc. The sixth stated that the purchaser was Bert Resch, 47th St. Diamond. All of the memoranda were signed by Bert Resch.

The pertinent part of the trial court’s memorandum of decision is as follows: “The defendant claims in his brief that Salo Resch cannot be held liable because the real ‘purchaser’ of the diamonds was a corporation. The defendant apparently bases this claim on the fact that five of the six documents in evidence contain the plaintiff’ s notation that he left diamonds at ‘47th St. Diamond, Inc.’ The court file contains a document from the City of New Haven stating that the trade name ‘47th Street Diamond Co.’ was registered in 1986. Further, the records of the corporation division of the office of the Secretary of State do not reflect any corporation known as ‘47th Street Diamond Co., Inc.’ The court is compelled to conclude that there was no corporate entity. The plaintiff conducted his business with Salo Resch through his authorized agent, Bert Resch.”

The defendant first claims that the trial court erred in basing its decision on the trade name certificate because the plaintiff merely attached a copy of the document to the complaint but did not introduce it into evidence. The plaintiff argues that the court’s finding was based not only on the trade name certificate, but also by the drawing of an adverse inference; Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960); from the defendant’s failure to appear at trial and testify. The plaintiff also argues that the court properly considered the trade name certificate in its decision because it was part of the pleadings under Practice Book § 141, which permits exhibits to be made a part of the complaint. We agree with the defendant.

The plaintiff alleged that Salo Resch was doing business as “47th Street Diamond Company.” The defendant in his answer denied all the allegations of the complaint, except that he had not paid any money to the plaintiff. While a complaint includes all exhibits attached thereto; Practice Book § 141; Redmond v. Matthies, 149 Conn. 423, 425-26, 180 A.2d 639 (1962); this does not mean that such exhibits can be properly considered by the factfinder in lieu of evidence. Exhibits attached to a complaint can be considered by the fact-finder if the defendant, through his answer or other responsive pleading, admits to the factual allegations contained therein so that the pleading constitutes a judicial admission. See Practice Book § 129; Tough v. Ives, 162 Conn. 274, 283, 294 A.2d 67 (1972). Any allegation that is denied by the defendant, however, must be proven by the plaintiff. See Schwarz v. Waterbury Public Market, Inc., 6 Conn. App. 429, 433, 505 A.2d 1272 (1986).

The plaintiffs argument that the trial court also based its decision on the adverse inference created by the defendant’s failure to testify is without merit. The only evidence in this case regarding the status of the plaintiff’s business entity was the memoranda, which, with one exception, listed the entity at issue as “47th St. Diamond Inc. ” (Emphasis added.) It is axiomatic that “[t]he fact issues at trial should be decided upon the facts ‘in the record’, i.e., facts officially introduced in accordance with the rules of practice, and facts which the court may judicially notice.” C. McCormick, Evidence (3d Ed.) § 51, p. 122 n.l. An adverse inference, without more, is insufficient to support a finding by the trier of fact. “Such negative inferences cannot supply proof of a particular fact. Accordingly, negative inferences do not help a party establish a prima facie case and can be used only by the trier in weighing the evidence and determining the ultimate burden of persuasion. Secondino v. New Haven Gas Co., [supra], 657; Doty v. Wheeler, 120 Conn. 672, 679, 182 A. 468 (1936).” C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed.) § 8.2.3, p. 230.

The trial court also erred in relying on records of the secretary of the state’s office to determine that “47th Street Diamond Co., Inc.” was not listed as a corporate entity. No such evidence was introduced at trial. In our adversary system, the parties have the burden of presenting evidence at trial pursuant to our rules and practices. Only evidence that is formally introduced can be considered by the trier of fact in the resolution of issues before it. C. McCormick, supra, § 51, p. 122.

The gist of the defendant’s third claim of error is that neither of these errors is harmless. We agree. It is clear that the court resolved the issue of whether 47th Street was a corporate entity on the basis of the trade name certificate and on records of the secretary of the state’s office.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       Because of our disposition of these claims, we need not reach the fourth claim of error asserted by the defendant, namely, that the trial court erred in failing to provide the proper credit to the defendant regarding collateral held by the plaintiff.


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    William T. Beazley Company v. Robert C. Streeto
    (6986)
    Dupont, C. J., O’Connell and Lavery, Js.
    Argued December 6, 1989
    -decision released February 27, 1990

      David Pinciaro, with whom, on the brief, was Frank Toro, Jr., for the appellant (defendant).

      Paul E. Barrett, Jr., for the appellee (plaintiff).
   O’Connell, J.

The defendant appeals from the judgment for the plaintiff rendered by the trial court on a factfinder’s report. The sole issue on appeal is whether the plaintiff real estate broker produced a buyer able to purchase the defendant’s property. We find no error.

The plaintiff corporation, a licensed real estate brokerage firm, and the defendant entered into a real estate listing agreement to sell the defendant’s East Haven property. While the agreement was in effect, the plaintiff secured potential purchasers who had executed a lease with an option to buy the property for $74,900. The factfinder determined that the purchasers had done all that was necessary to exercise the option. The defendant, however, did not convey the property to the purchasers. The plaintiff brought this action for its commission, claiming that it had produced a buyer ready, willing and able to purchase the property. The defendant does not dispute that the buyers were ready and willing, but contends that they were not financially able to make the purchase.

After an initial hearing, the trial court sustained the defendant’s objection to that portion of the factfinder’s report relating to the buyer’s financial ability and remanded the case for a further hearing limited to “the sole issue of the financial ability of the [buyers] to complete the purchase under the terms of the option.” On remand, the factfinder heard testimony from an acknowledged expert in mortgage lending that the buyers would be eligible for mortgage financing on the premises for the full amount necessary to purchase the property. The expert furnished the basis for his opinion and was fully cross-examined by the defendant.

At the conclusion of the second hearing, the fact-finder “found that the evidence clearly demonstrated the financial ability of the [buyers] to complete the purchase under the terms of the option.” Following a final hearing on the defendant’s objection to the acceptance of the finding of facts on remand, the court rendered judgment for the plaintiff for $4494.

The defendant’s case is based on a clause in the option stating that the buyers would have to qualify for a $59,900 mortgage. The difference between that and the amount needed to buy the property was to be supplied by a gift or loan from the parents of one of the buyers. The defendant relies on the rule in Frumento v. Mezzanotte, 192 Conn. 606, 617, 473 A.2d 1193 (1984), that when a purchaser is dependent upon third persons who are in no way bound to furnish him with funds, he is not able to make the purchase. A broker in such a situation has not produced a buyer ready, willing and able and, therefore, is not entitled to a commission. Frumento, however, is inapposite to the facts of the present case. Here, the plaintiff demonstrated through the mortgage expert that the buyers were not dependent upon third parties, but were instead able to finance the entire purchase price through normal mortgage channels. The mortgage expert testified that the buyers qualified for a mortgage sufficient to cover the difference between their down payment and the purchase price.

Both the trial court and this court on appellate review are bound by the factfinder’s findings, unless they are clearly erroneous and unsupported by the evidence. Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn. App. 420, 425, 567 A.2d 1250 (1989). In the present case, there was ample evidence from the mortgage expert that the buyers were financially capable of making the purchase without assistance from a third party. The defendant’s attack, in this court, on the expert’s testimony is unavailing because he seeks to have us assess the witness’ credibility. He asks that we substitute our opinion for that of the trier of facts. We cannot do so. Id., 423.

The plaintiff has shown by a preponderance of the evidence that it produced a ready, willing and financially able buyer. DiBella v. Widlitz, 207 Conn. 194, 200, 541 A.2d 91 (1988). Therefore the plaintiff is entitled to the judgment of $4494.

There is no error.

In this opinion the other judges concurred.


text:
    State of Connecticut v. Curtis Jennings
    (7605)
    (7606)
    Dupont, C. J., O’Connell and Lavery, Js.
    Argued December 6, 1989
    decision released February 27, 1990

      Lauren Weisfeld, assistant public defender, with whom, on the brief, was Meira Rosenberg, assistant public defender, for the appellant (defendant).

      Mary H. Lesser, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Robert J. O’Brien, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, after a jury trial, of one count of burglary in the third degree in violation of General Statutes § 53a-103 and one count of criminal trespass in the second degree in violation of General Statutes § 53a-108. The dispositive issue is whether the court erred in prohibiting the defendant from testifying after both sides had completed their closing arguments. We find no error.

The defendant was charged in two cases, which were tried together, with burglary in the third degree after undercover police officers observed him breaking into two parked cars and going through the trunk of one car and the glove compartment of the other. The jury found the defendant guilty as charged in one case and guilty of the lesser included offense of criminal trespass in the second degree in the other.

After the state presented its case-in-chief, the defendant rested without offering any evidence. Both sides then made their closing arguments. As the court was about to charge the jury, defense counsel asked that the jury be excused. He then informed the court that the defendant had raised his hand and wished to speak. The defendant then addressed the court, saying, “I think that there are some things that I need to say to the jury on my behalf. I want to make a closing argument.” (Emphasis added.) The trial court denied the request.

The defendant now argues that his request to the trial court was not, in fact, a request to make a closing argument but rather was a request to testify, and he contends that the court’s decision deprived him of his right to testify on his own behalf. Before we can decide if the defendant had the right to testify at such a late stage in the proceedings, we must first examine the record to determine whether the trial court reasonably should have understood the defendant’s remarks to be a request to testify and not a request to argue to the jury.

If the defendant sought to make a closing argument, the court properly denied it. Practice Book § 874 (5) clearly limits the defendant to one closing argument, and the defendant’s counsel had already spoken. The defendant has no right, under the federal or state constitutions, to hybrid representation with his attorney. State v. Gethers, 197 Conn. 369, 382-94, 497 A.2d 408 (1985). Even more directly on point is State v. DelVecchio, 7 Conn. App. 217, 221-22, 508 A.2d 460, cert. denied, 201 Conn. 801, 513 A.2d 697 (1986); in which this court held that a defendant had no right to share closing arguments with his attorney.

The defendant plainly asked the court if he could make a closing argument. At no point in the colloquy did he ask to take the stand and testify. Furthermore, neither the defendant nor his counsel ever made a motion to open the case to present additional evidence, nor did either attempt to make an offer of proof as to the nature of defendant’s testimony. Additionally, a denial of the defendant’s right to testify was not included as one of the grounds in his motion for a new trial. Finally, we note that the state completed its case on the Friday preceding a Memorial Day weekend. At defense counsel’s request, the case was continued until the following Tuesday to give the defendant an opportunity to confer with his attorney on how to proceed with the defense. When the trial resumed the following Tuesday, the defendant rested without presenting evidence. As a result, the court, acting pursuant to General Statutes § 54-84 (b), informed the jury that the defendant had elected not to testify and that no unfavorable inference could be drawn therefrom.

The defendant contends that because the court referred to the possibility that the defendant’s prior felony record might be brought to the jury’s attention, the court must have realized that this was a request to testify. He also argues that, in advising the court that he wanted to talk to the jury to give them a short version of what had happened that night, he clearly disclosed a desire to testify. Both of these claims are without merit. First, reference to the prior felony record is consistent with the court’s knowledge that a jury argument would not expose the defendant’s prior conviction since he had not previously testified. Second, the defendant had just heard the state’s attorney summarize the prosecution’s version of the events on the night in question. There is nothing in the record to indicate anything other than that the defendant simply wanted to deliver an argument to give the jury his version of those events.

The record discloses that the defendant expressly, distinctly and unambiguously told the trial court that he wanted to make a closing argument. Nothing in the record supports the defendant’s claim that this should have alerted the trial court to the fact that this was in reality a request to testify. Accordingly, we need not determine whether the defendant should have been allowed to testify.

There is no error.

In this opinion the other judges concurred.

       The defendant states his claims of error as follows: “Whether the court violated the defendant’s right to testify and his Due Process right to a fair trial under the federal and state constitutions by (A) its failure to conduct an inquiry to determine whether the defendant had voluntarily, knowingly, and intelligently forfeited his right to testify, (B) its failure to exercise its discretion to determine whether it would have been appropriate to reopen the defense case to allow the defendant to testify after the summations, and in the alternative, (C) its failure to allow the defendant to testify after the summations which, under the circumstances of the case, was an abuse of discretion?”

       The colloquy that took place at this point was as follows:
      “[Defense Counsel]: Your Honor, Mr. Jennings has raised his hand and he wants to be heard.
      “The Court: Mr. Jennings, do you want to be heard?
      “[The Defendant]: Yes, Your Honor.
      “The Court: What do you want to say?
      “[The Defendant]: I think that there are some things that I need to say to the jury on my behalf. I want to make a closing argument.
      “The Court: Well, that is the purpose of having an attorney, Mr. Jennings.
      “[The Defendant]: I want to talk to the jury and give them a very short version of what had happened that night.
      “The Court: But sometimes that is not the right thing to do and especially with a person with a felony. If you want to address the jury and give your version of the facts, you — your felony conviction may — well, I am sure that will not happen here.
      “[The Defendant]: They only know what the police officer said. My record came back and my pictures. I mean they—
      “The Court: Well, if this is a request to address the jury, it is not within the rules and I can’t tell you do it and I will note your exception to the record on the court’s ruling in this matter. If I have made a mistake, someone will correct my error.”

       Practice Book § 874 (5) provides as follows: “The defendant may make a single closing argument following the opening argument of the prosecuting attorney.” (Emphasis added.)


author: Lavery, J.

text:
    In re John B.

    (6772)
    Dupont, C. J., O’Connell and Lavery, Js.

      Argued December 7, 1989
    decision released February 27, 1990

      Sara R. Martin, for the appellant (respondent mother).

      Judith Merrill Earl, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, attorney general, for the appellee (state).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Lavery, J.

This is an appeal by the respondent mother, Dolores B., (respondent) from the granting of a petition to terminate her parental rights with respect to her son, John B., pursuant to General Statutes § 17-43a. The respondent’s sole claim is that the trial court erred in considering evidence antedating a prior termination proceeding because the admission of such evidence was barred under the doctrines of res judicata or collateral estoppel. We find no error.

The following facts are relevant. John B. was born on May 25,1983. At birth, the child was mildly retarded and had fetal alcohol syndrome and chronic asthma. One of his legs was shorter than the other. After extended hospital care, the child was placed in a foster home pursuant to a court order dated August 10, 1983. Since then, the child has lived in foster homes; he has never lived with his parents. On November 1, 1983, the child was found uncared for and was committed to the department of children and youth services (DCYS); his commitment continues to the present day.

John B. has special mental and physical needs and attends special nursery classes and receives outpatient treatment at Newington Children’s Hospital. The child’s father is severely alcoholic and has a history of physically abusing the respondent mother; the respondent is severely mentally ill. A prior petition was brought by DCYS for termination of parental rights and on October 9, 1985, the trial court, Clark, J., denied the termination petition in a docket entry that read “burden of state’s case, clear and convincing evidence, has not been met.” No more detailed memorandum was issued.

On November 28,1986, DCYS filed the present petition to terminate the father’s and the respondent’s parental rights. The three grounds in this petition were the same as the allegations in the prior petition. The trial court admitted evidence antedating the prior decision and took judicial notice of the file of the prior termination proceeding. That file included, inter alia, the service agreements between the parents and DCYS, as well as various reports on the nature of the child’s relationship with his parents. The trial court found that after the prior decision the child had remained in the custody of DCYS and that DCYS had entered into a new service agreement with both parents. Under the agreement, each parent was to visit separately with the child every other week at the DCYS office. In addition, each parent was to participate in counseling, either separately or together.

Immediately thereafter, the parents breached their responsibilities under the agreement. Although each parent received bus passes, neither adhered to his or her visitation schedule. The respondent made two out of thirteen possible visits, both of which were for one hour and were noted by DCYS personnel to be deficient in quality. The father made one visit of five minutes duration. Neither parent entered counseling or therapy programs designed to enable them to assume parental control. The father testified that neither he nor the respondent was able to care for the child, and the respondent told DCYS that she was willing to have her rights terminated provided that the child was placed in the custody of a relative so that she could keep in touch with him. During the child’s commitment to DCYS, the respondent had been irregularly attending treatment plan and education conferences conducted by DCYS. The parents have sent the child no gifts or cards since October, 1985. In 1986, the respondent was expelled from vocational school a second time for disruptive behavior.

In June, 1986, the Probate Court committed the respondent to Connecticut Valley Hospital (CVH), a mental care institution. On August 26, 1986, the respondent left CVH without permission. She returned to CVH on November 16, 1986, where she remained until the new petition was filed. When DCYS inquired about whether the child should visit the respondent at CVH, the staff recommended against visitation because it would not be beneficial for either the child or the respondent. The staff prognosis for the respondent was poor.

A threshold question at the second termination hearing was whether evidence antedating the prior decision of October 9, 1985, was admissible. In its memorandum of decision, the trial court ruled that “[a] decision to grant or deny a termination petition must be made on the basis of conditions existing at the time of trial. Acts or events occuring before the denial of the earlier petition should be considered if they have continued or have been repeated or if, when coupled with new acts, they present a change of circumstances.” (Citation omitted.) We agree.

The doctrines of res judicata and collateral estoppel are well established in our law. The two doctrines “protect the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation. Res judicata or claim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits. Collateral estoppel, or issue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit.” Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988).

Our Supreme Court has recently examined the application of these doctrines to termination of parental rights hearings. In In re Juvenile Appeal (88-DE), 190 Conn. 310, 460 A.2d 1277 (1983), the court held that the doctrines of res judicata and collateral estoppel did not apply because the first termination case was dismissed by a trial court not on the merits, but rather because the one year requirement of General Statutes § 17-43a should not have been waived. The court went on to state, in dictum, that “[ajlthough we have resolved the two issues expressly raised by the respondent in her brief, we are concerned with problems which may arise from successive petitions for termination of parental rights. The judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate.” Id., 318. “The doctrines of preclusion, however, should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies.” Id.

Courts, when deciding whether to terminate parental rights, must base their decision on an assessment of the conditions as they appear at the time of trial. Id. The doctrines of res judicata and collateral estoppel, therefore, ordinarily afford very little protection to a parent who has once successfully resisted an attempt to terminate his or her parental rights. Id. “Parents have a constitutionally protected right to raise and care for their own children. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972). This right is not free from intervention by the state, however, when the continuing parens patriae interest of the state in the well being of children is deemed by law to supersede parental interests. See General Statutes §§ 17-43a, 46b-129 (e); In re Juvenile Appeal (83-BC), 189 Conn. 66, 77, 454 A.2d 1262 (1983).” In re Juvenile Appeal (88-DE), supra, 318-19. A court’s decision that a ground for termination did not exist at one time does not preclude such ground from arising at a later time.

Unlike the court that decided In re Juvenile Appeal (83-DE), supra, we are confronted with an issue that that court did not need to reach. We must decide whether, in a new termination hearing, to bar evidence that was admitted or available for introduction at a prior termination hearing, involving the same parties, that was decided on the merits in the parents’ favor. Apart from the dictum in In re Juvenile Appeal (83-DE), supra, no reported Connecticut case has addressed this issue.

A review of relevant cases from other jurisdictions reveals that the majority of jurisdictions has adopted the rule set forth in Matter of Newman, 49 Or. App. 221, 619 P.2d 901 (1980), a case cited in In re Juvenile Appeal (83-DE), supra. In Newman, after the first termination proceeding against the father was dismissed, it was subsequently discovered that the father had been sentenced to ten years in prison in another state after the hearing, but before the decision. The issue in the second proceeding was whether res judicata or collateral estoppel barred the introduction of any evidence or records of the first proceeding in the second proceeding.

The Oregon court held that “[termination of parental rights proceedings generally arise out of a continuing and cumulative set of circumstances, in which the child is within the juvenile court’s jurisdiction and, often, is subject to agency custody or supervision. An order denying a petition to terminate parental rights seldom leads directly to the termination of wardship or of agency involvement. It is one thing to say that such an order bars a second termination proceeding when there has been no change in the operative facts which led to the initiation of the first proceeding; it is very different — and clearly wrong — to contend that, if new substantial material facts come into existence which justify the filing of a new termination proceeding, evidence and facts which were or could have been considered in the earlier proceeding cannot be considered or reconsidered in the later one. . . . We therefore conclude that, when a second termination proceeding is not itself barred, the proof is not limited by res judicata or collateral estoppel principles to facts or evidence which was not considered in, or which came into being after, the first proceeding.” Matter of Newman, supra, 227-28; see also People in Interest of J.R., 711 P.2d 701 (Colo. App. 1985); In re A.S., 12 Kan. App. 594, 752 P.2d 705 (1988); Scott v. Department of Social Services, 76 Md. App. 357, 545 A.2d 81 (1988); In re Interest of V. B. & Z.B., 220 Neb. 369, 370 N.W.2d 119 (1985).

In the present case, as in Matter of Newman, supra, new facts that justified the bringing of a second termination proceeding came into being after the dismissal of the first proceeding. The failure of the respondent to adhere to the visitation schedule, to get treatment for her mental health condition and to stay in contact with the child, and her poor prognosis for recovery from her mental health problems are some of the substantial facts that justified the bringing of a new petition. Once the bringing of a second termination proceeding was so justified, the doctrines of res judicata and collateral estoppel do not apply because courts are required in all termination proceedings to take into account the entire relationship between the parent and child. See In re Juvenile Appeal (83-DE), supra, 318. The trial court was correct in considering evidence of events that occurred prior to the first hearing.

There is no error.

In this opinion the other judges concurred.

       The respondent father, John B., Sr., did not appeal from the termination of his parental rights. We mention him only as it relates to the respondent mother’s case, and refer to her herein as the respondent.

       We note that the memorandum of decision of the trial court, Barnett, J., was particularly well reasoned and articulate.

       A fourth ground in the first termination petition, “acts of parental commission or omission,” was not alleged in the new termination petition.


author: Spallone, J.

text:
    Leonard Udolf v. West Hartford Spirit Shop, Inc.
    (8121)
    Borden, Spallone and O’Connell, Js.
    Argued December 20, 1989
    decision released February 27, 1990

      Marc M. Schindelman, with whom, on the brief, was T. P. Malnati, legal intern, for the appellant (defendant).

      Lawrence S. Hillman, for the appellee (plaintiff).
   Spallone, J.

The defendant, West Hartford Spirit Shop, Inc., appeals from the judgment of possession rendered for the plaintiff, Leonard Udolf, in this summary process action. We find error.

In January, 1989, the plaintiff commenced a summary process action against his tenant, the defendant. The defendant was subsequently ordered by the court to pay the sum of $1350 for use and occupancy on the seventeenth day of each month at the office of the clerk of the Housing Session of the Superior Court (housing court) on Trinity Street in Hartford.

The defendant duly made the first payment on April 17,1989. On May 17,1989, the defendant’s president hired a professional courier service to deliver the payment, in the form of a bank check, to the court. The courier misdelivered the payment to the clerk at the trial division of the Superior Court on Washington Street. The payment was subsequently transferred to the housing court, but it arrived past the date due. Accordingly, the clerk of the housing court, on May 18, mailed to the defendant an order for an answer to the plaintiff’s complaint. Pursuant to General Statutes § 47a-26b (c), the defendant had four days from the mailing of the order, that is, until May 22,1989, to file its answer. The defendant did not file an answer, but, on May 22,1989, filed a motion for extension of time, nunc pro tunc, to make the May use and occupancy payment. Without ruling on the defendant’s motion, the trial court, on May 23,1989, rendered judgment of possession for the plaintiff upon the defendant’s failure to answer the complaint. This appeal followed.

The defendant claims that the trial court erred in failing to afford a hearing on its motion for an extension of time and in rendering judgment without ruling on the motion. We agree.

The purpose of a summary process proceeding is to expedite the landlord’s recovery of possession upon a termination of a lease. Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 292, 320 A.2d 797 (1973). Under General Statutes § 47a-26b, the defendant may be directed to make payments for the use and occupancy of the premises during the pendency of a summary process action. MFS Associates, Inc. v. Autospa Realty Corporation, 19 Conn. App. 32, 33 n.l, 560 A.2d 484 (1989). Failure to make a payment when due accelerates the pleading process. Id. Pursuant to § 47a-26b (c), the defendant must file an answer to the complaint within four days or judgment shall be entered against him without a hearing. See Messinger v. Laudano, 4 Conn. App. 162, 164-65, 493 A.2d 255, cert. denied, 196 Conn. 812, 495 A.2d 279 (1985).

The defendant here does not contest the consequences of default; it disputes whether that default occurred. The statutory language is clear that the provisions of § 47a-26b (c) are triggered by the failure to make use and occupancy payments when due. The substance of the defendant’s motion was that this triggering event did not occur because payment was made, albeit to the wrong court. Whether or not the defendant would prevail on this motion is not our present concern. The allegation in the defendant’s motion that payment was made puts the default into question, and was therefore an issue that the court was required to resolve before it effectuated the provisions of § 47a-26b (c) and rendered judgment.

Practice Book § 206 sets forth the procedures to be followed in order to bring a motion before the court for a hearing. The plaintiff argues that because the defendant was under a court order to pay use and occupancy and to file an answer by May 22,1989, the court, under Practice Book § 206, was not required to schedule or hear the defendant’s motion. This assertion is untenable because § 206 allows for the expeditious, alternative, discretionary hearing of motions. The court need not place a motion on a short calendar list if to do so would delay the proceedings. See State ex rel. Bonoff v. Evarts, 115 Conn. 98, 100-101, 160 A.2d 294 (1932).

In this case, there was a need for expediency because on May 23,1989, the court had before it both the summary process trial and the defendant’s motion. The court, in its discretion, could have heard the defendant’s motion although it was not on the short calendar list. Nothing in § 206 provides that a motion may be ignored and not ruled upon by the court. “ ‘ “It is the settled rule of this jurisdiction, if indeed it may not be safely called an established principle of general jurisprudence, that no court will proceed to the adjudication of a matter involving conflicting rights and interests, until all persons directly concerned in the event have been actually or constructively notified of the pendency of the proceeding, and given reasonable opportunity to appear and be heard.” . . . ’ ” (Citations omitted; emphasis added.) Hasbrouck v. Hasbrouck, 195 Conn. 558, 559-60, 489 A.2d 1022 (1985).

In this case, judgment was predicated upon the defendant’s failure to file an answer to the complaint, which answer became mandatory if the defendant defaulted on his payment for use and occupancy. The defendant timely filed a proper motion contesting its default. The trial court should not have proceeded to judgment without affording the defendant an opportunity to be heard on its motion.

There is error, the judgment is set aside and the case is remanded to the trial court for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       General Statutes § 47a-26b (c) states in pertinent part: “If the defendant fails to make such payments as ordered, the clerk shall, immediately and without the filing of a motion, order the defendant to file his answer and, if the defendant fails to do so within four days of the mailing of such order, judgment shall forthwith be entered for the plaintiff.”

       Practice Book § 206 provides in part: “Unless otherwise provided in these rules or ordered by the court ... all motions . . . and all issues of law must be placed on the short calendar list. No motions will be heard which are not on said list and ought to have been placed thereon; provided

        that any motion in a case on trial, or assigned for trial, may be disposed of by the court at its discretion, or ordered upon the short calendar list on terms, or otherwise.” (Emphasis added.)


text:
    State of Connecticut v. Daniel Hayes
    (7573)
    Borden, Daly and O’Connell, Js.

      Argued October 19, 1989
    decision released February 27, 1990

      Milo J. Altschuler, special public defender, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were Mary Galvin, state’s attorney, and David Shepack, assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70, sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), and risk of injury to a child in violation of General Statutes § 53-21. The court imposed consecutive sentences of fifteen, eight and seven years, for a total effective sentence of thirty years imprisonment.

The defendant claims that the trial court erred (1) in ■granting the state’s motion to quash a subpoena for certain erased police records of the victim’s uncle, (2) in omitting from its jury charge an element of the offense of risk of injury to a child, (3) in declining to give a specific cautionary instruction on the credibility of a child witness, (4) in improperly commenting on the evidence during its instructions to the jury, (5) in denying the defendant’s request to submit the bill of particulars to the jury, (6) in violating the defendant’s double jeopardy rights by imposing consecutive sentences on the three charges, and (7) in denying the defendant’s motion for an additional presentencing psychiatric diagnostic examination under General Statutes § 17-244. We find no error.

In the first and second counts of the information, the state alleged that between January, 1983, and March, 1985, the defendant engaged in vaginal intercourse by force, and in vaginal intercourse with a person under the age of sixteen. In the third count, the state alleged that, between the same dates, the defendant willfully caused and permitted a child under the age of sixteen to be placed in a situation where her morals where likely to be impaired. In response to the defendant’s motion, the state filed a bill of particulars, stating, inter alia, that as to the first two counts, the state intended to prove repeated acts of vaginal intercourse by the defendant with the victim, and as to the third count, repeated acts of vaginal intercourse and sexual contact.

The jury could reasonably have found the following facts. The victim is the defendant’s daughter. Between January, 1983, and March, 1985, when the victim was between six and eight years old, five separate incidents occurred. In the first incident, the defendant pulled up the victim’s nightgown and tickled her vagina with his fingers. When she asked the defendant to stop, he told her to be quiet because “I have to concentrate.” In the next three incidents, the defendant tied the victim to a bed with clothesline and engaged in vaginal intercourse with her. After the fourth incident, the victim, her mother and her brother moved from the family’s apartment in Ansonia to Seymour, and the defendant remained in the Ansonia apartment. In the fifth incident, the defendant had vaginal intercourse with the victim in the apartment while she was visiting him there. The victim testified that no ropes were used because she had thrown them into the sewer after the previous incident so that it would not “happen again.” This testimony was corroborated by the subsequent discovery of two pieces of rope in a storm sewer directly in front of the apartment. There was also expert testimony that the victim’s vaginal opening was enlarged, consistent with repeated incidents of vaginal penetration by a penis, and that the size of the opening was inappropriate for a physically immature child of the victim’s age.

I

The defendant first claims that the trial court erred in granting the state’s motion to quash the defendant’s subpoena duces tecum for certain police records regarding the victim’s maternal uncle, who had been arrested for sexually assaulting his own children. The charges against the uncle were subsequently nolled, and the records pertaining to those charges were statutorily erased pursuant to General Statutes § 54-142a (c). The defendant claims that these records were necessary to show that the victim’s uncle, rather than he, committed the crimes with which he was charged, and that the denial of access to the records violated his right to produce witnesses on his behalf and his right to a fair trial. We disagree.

This claim arises out of the following procedural context. The defendant served a subpoena duces tecum on the Seymour police department for the police records regarding the arrest, on or about November 20,1982, of the victim’s uncle, G, for sexually assaulting his own children. The state moved to quash the subpoena on the grounds that, because the charges had been nolled, the records were statutorily erased and not subject to disclosure to the defendant, and that the records were irrelevant to the issues in the case. The defendant claimed that, during “some of the dates” on which he was alleged to have committed the crimes in question, the victim was living with her mother, who was the sister of G, that “at a point in time near to when the allegations arose” G was charged with sexually assaulting his own children, and that G “had substantial access [and] was even living in the same residence with the alleged victim in this case or around the corner and was with her a lot.” Relying on State v. Douglas, 10 Conn. App. 103, 522 A.2d 302 (1987), and State v. Echols, 203 Conn. 385, 524 A.2d 1143 (1987), the defendant claimed that he was constitutionally entitled to examine the records in order to determine whether there was a possible similarity to the offenses alleged in this case, thereby giving rise to the possibility “that someone else may have committed [these] crime[s].” He argued that, if G was living in the same household, and if the records disclosed that his conduct with his own children was similar to the manner in which the acts of intercourse were described in this case, that would be sufficient to show that G, and not the defendant, committed the crimes. The trial court granted the state’s motion to quash. The defendant did not specifically request the court to examine the records in camera or to mark them for identification.

It is undisputed that the charges against G had been nolled, and that the records were erased pursuant to General Statutes § 54-142a (c). It is also undisputed that the defendant does not fall within any of the statutory exceptions to that statute. See General Statutes § 54-142a (f) and (g), and § 54-142c (b).

Such erasure does not, however, necessarily create a shield that is impermeable to a claim of constitutional deprivation. See State v. Douglas, supra. We conclude that, although a criminal defendant may in appropriate circumstances make a showing sufficient to trigger an in camera review of statutorily erased records, the defendant in this case did not make such a showing.

In State v. Douglas, supra, this court considered the tension between the criminal records erasure statute and the constitutional right of confrontation through cross-examination. We held that, on the facts of that case, it was error for the trial court to decline to review in camera the previous trial testimony of two state’s witnesses in the separate trial of an alleged coparticipant in the crimes charged. The earlier trial had resulted in an acquittal of the alleged coparticipant. The purpose of the review we ordered was to determine whether that prior testimony should have been disclosed to the defendant. Id., 117-18.

Although in Douglas we did not require a preliminary showing of inconsistency in order to trigger the court’s in camera review; id., 116; it was implicit in the facts of that case that the statutorily shielded transcript directly related to the crimes charged against the defendant, since that transcript contained the testimony of two of the state’s witnesses regarding those same crimes. Furthermore, the court in Douglas drew heavily on State v. Pierson, 201 Conn. 211, 514 A.2d 724 (1986), and State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984). In those cases, the court, in resolving the tension between the right of confrontation and the psychiatric privilege, required a showing of a reasonable basis in the evidence in order to trigger either an in camera review of psychiatric records or a voir dire of psychiatric personnel. State v. Douglas, supra, 110.

In (State v. James, 211 Conn. 555, 579, 560 A.2d 426 (1989), our Supreme Court considered whether the trial court erred in refusing to review in camera the school records of the victim of the crimes charged. The court held that, although it was error for a trial court to refuse “to examine documents in camera where a sufficient foundation has been laid to indicate a reasonable likelihood that they contain material relevant to the case or useful for impeachment of a witness”; id.; the defendant had not made a showing “sufficient to establish a reasonable ground to believe that [the school records] may have contained anything related to the issues at trial or the credibility of [the victim].” Id.

Reading Douglas and James together, we conclude that, in order to trigger an in camera review of records shielded by General Statutes § 54-142a (c), the defendant must first establish some reasonable likelihood that the records contain information relevant to the case. Here, the defendant claimed that the records were relevant to a claim that someone other than he had committed the crimes charged. Evidence of such third party culpability is a component of a defendant’s due process right to present a defense. State v. Echols, supra. For third party evidence to be admissible, however, it must directly connect the third party to the crime, it must be more than evidence of the third party’s motive to commit the crime, and it must be more than enough to raise a bare suspicion of such third party culpability. Id., 392. Thus, in this case, in order for the defendant to trigger an in camera review of the records, he was required to establish a reasonable likelihood that the records contained material directly-connecting G to the crimes charged. This he failed to do.

The crimes charged against the defendant were alleged to have occurred between January, 1983, and March, 1985. The records sought by the defendant concerned the arrest of G on or about November 20,1982, for sexually assaulting his own children. Thus, G’s alleged conduct with his children preceded by at least approximately one and one-half months the beginning of the time period of the charges brought against the defendant. The defendant represented that at some unspecified period of time “near to when these allegations [against the defendant] arose,” G lived in the same house as the victim “or around the comer and was with her a lot.” He did not lay any foundation for a reasonable indication that the victim was falsely accusing her father in order to protect her uncle, or that no assaults had taken place and she was mimicking her cousins’ allegations against her uncle. Moreover, the familial relationship between the victim and the defendant precludes any suggestion of mistaken identity. Compare State v. Echols, supra. Finally, the defendant claimed only that the records might disclose a possible similarity to the crimes charged, sufficient only to raise a possibility that G committed those crimes. We conclude, therefore, that the defendant failed to establish a reasonable likelihood that the records would directly connect G, rather than him, to the crimes charged.

II

The defendant next claims that the trial court erred in its charge to the jury on the crime of risk of injury to a child. He claims that a proper instruction to the jury on General Statutes § 53-21 must include the element of a deliberate touching in a sexual and indecent manner. The defendant contends that, based on prior judicial interpretations of this statute, such an omission constitutes an improper extension of the scope of conduct violative of this offense. See State v. Zwirn, 210 Conn. 582, 587-88, 556 A.2d 588 (1989) (an element of the offense is that the act must be done in a sexual and indecent manner); State v. Schriver, 207 Conn. 456, 466, 542 A.2d 686 (1988) (the type of physical harm prohibited by § 53-21 is limited to deliberate, blatant abuse). The defendant also claims that the omission of this instruction impermissibly broadened the scope of the charges as alleged in the accusatory pleadings, thereby permitting a conviction for an uncharged offense. See State v. Belton, 190 Conn. 496, 501, 461 A.2d 973 (1983). These claims are without merit.

The defendant’s argument that the court improperly expanded the scope of behavior proscribed by the statute ignores the distinction drawn by our Supreme Court in State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963), and reaffirmed in State v. Schriver, supra, 464, that § 53-21 proscribes “ ‘two general types of behavior ... (1) deliberate indifference to, acquiesence in, or the creation of situations inimical to the minor’s moral or physical welfare . . . and (2) acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being.’ ” Here, the defendant was charged with the first part of § 53-21, which does not require a physical touching. State v. Schriver, supra, 467; State v. Perruccio, 192 Conn. 154, 159-60, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984).

The cases upon which the defendant relies; State v. Zwirn, supra; State v. Schriver, supra; and State v. Pickering, 180 Conn. 54, 428 A.2d 322 (1980); all involved the judicial construction of the second part of § 53-21 and are, therefore, inapposite. The trial court properly limited its charge to the first part of the statute, and its instruction excluding the element of a deliberate touching was a proper statement of the law. Since the court gave a proper instruction on the first part of the statute, the defendant’s claim that the instruction improperly expanded the scope of the charging documents also must fail.

Furthermore, even if we assume that the court erred by failing to include the requested instruction, because the conduct that was specified by the state in the bill of particulars and presented by the state at trial involved sexual acts perpetrated on the victim, rather than the creation of a harmful situation, the error was harmless. Although a trial court’s failure to include an essential element of an offense in its jury instructions is error, such an error is harmless if the record establishes beyond a reasonable doubt that it did not contribute to the verdict. State v. Price, 205 Conn. 616, 619-21, 534 A.2d 1196 (1987).

The bill of particulars specified repeated acts of sexual intercourse and sexual contact with the victim as the particular conduct constituting the risk of injury offense. The state’s evidence involved four incidents of intercourse, and one incident of sexual contact. The jury convicted the defendant of both counts of sexual assault, indicating that it found the alleged acts of intercourse proven. The evidence regarding the one touching incident was not susceptible of an interpretation of an innocent touching; see State v. Zwirn, supra, 588; nor did the defendant claim any such interpretation. Indeed, his testimony was that he did not commit any of the conduct described by his daughter. Under these circumstances, it is clear beyond a reasonable doubt that the jury’s verdict was not affected by the absence of an instruction that the defendant’s conduct must have been sexual and indecent.

The defendant also asserts a related claim that the jury could have been misled into believing that acts other than a deliberate touching in a sexual and indecent manner were sufficient to find the defendant guilty, in light of certain evidence that the defendant had shown the victim Playboy magazines. We disagree.

The court, in its instructions, fully explained the offense of risk of injury as it applied to the victim’s testimony. That instruction made absolutely no reference to the showing of any magazines. Because the victim could not testify as to the exact dates of the various assaults, the state sought to elicit from her certain testimony surrounding each of the events in order to show that she was testifying to multiple assaults, rather than one assault. The showing of the magazines was simply part of that evidence.

In addition, the evidence regarding the magazines was wholly superfluous to a conviction of risk of injury to a child. The jury found the defendant guilty of sexual assault in the first degree and sexual assault in the second degree. In order to have found the defendant guilty of these charges, the jury necessarily found that, under the first count, he had forcible intercourse with the victim and, under the second count, he had sexual intercourse with the underage victim. These findings alone were sufficient to sustain the conviction for risk of injury to a child. See State v. Pickering, supra, 65-66. Where the jury found such acts of'sexual intercourse proven, it is fanciful to suggest that the defendant could have been convicted of risk of injury merely because he showed adult reading materials to the victim.

Ill

The defendant next claims that the trial court erred in failing to instruct the jury on the credibility of a child witness. He claims that it was harmful error for the court not to give a specific cautionary charge on the credibility of a child witness under State v. Anderson, 152 Conn. 196, 205 A.2d 488 (1964). It is no longer mandated under Connecticut law that a court give a special child witness credibility instruction whenever it is requested by a defendant. State v. James, supra, 566-71, overruling State v. Anderson, supra. Such a “cautionary comment upon the evidence”; State v. James, supra, 571; is now clearly within the discretion of the trial court.

The defendant contends that the trial court abused its discretion by declining to give such an instruction. He claims that the instruction should have been given because the victim gave different versions of the incidents to others who provided constancy of accusation testimony at trial, because the trial court referred to the victim’s testimony in its instructions, and because the victim was allowed to testify without a finding of competency, pursuant to General Statutes § 54-86h. None of these reasons persuades us that the trial court abused its discretion.

The first two arguments advanced by the defendant do not distinguish between the possible infirmities of a child’s testimony and that of an adult, and, therefore, provide no support for the proposition that a court should give a special child credibility instruction under these circumstances. Even if the victim’s testimony at trial differed in some respects from her previous statements to certain health care workers, such inconsistent statements were appropriate fodder for impeachment, and simply because they were made by a child witness did not necessitate the giving of a special credibility instruction. Likewise, the giving of a special cautionary instruction was not compelled simply because the trial court referred in its charge to the testimony of the child victim.

We also reject the defendant’s argument that the court was required to give such an instruction in this case because of the absence of a preliminary competency hearing, pursuant to General Statutes § 54-86h. The victim in this case was almost twelve years old at the time of trial, approximately the same age as the victim in State v. James, supra, where our Supreme Court found no abuse of discretion by the trial court in failing to give such an instruction. Also, as in James, the court, in its charge, referred several times to the victim’s age and instructed the jury fully on the credibility of witnesses in general. See id., 567. Furthermore, the victim’s testimony was corroborated by expert testimony that she had an enlarged vaginal opening consistent with repeated penetration by a penis, and by the physical evidence of the ropes that were retrieved from the sewer where the victim claimed to have discarded them. In addition, the state presented constancy of accusation testimony from two adults experienced in counselling sexually abused children.

IV

The defendant next claims that the trial court improperly commented on the evidence during its charge to the jury. He claims that the court summarized the evidence in a biased manner that unfairly favored the state by not referring to facts favorable to him, and by presenting the evidence in a manner not suggested by the charging documents. We disagree.

Only part of the defendant’s claim was properly preserved in the trial court, namely, that the court referred to the evidence in a manner not suggested by the charging documents. Because “we will limit our review only to those [comments on the evidence] specifically raised by the exceptions taken to the charge”; State v. Nims, 8 Conn. App. 631, 640, 513 A.2d 1280, cert. denied, 201 Conn. 812, 516 A.2d 887 (1986); we decline to review the defendant’s claim that the court unfairly commented on the evidence. The defendant makes no claim of Evans review. See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The portion of the defendant’s claim that was properly preserved is without merit.

The trial court’s instructions referred to specific portions of the victim’s testimony as it related to the three counts in the information. The defendant claims that the trial court erred by framing the facts in its instructions differently from the state’s theory of the case based on its accusatory pleadings. In the bill of particulars, the state alleged, for the first two counts, repeated acts of vaginal intercourse, and, for the third count, repeated acts of vaginal intercourse and sexual contact.

The trial court in its instructions provided one particular incident for each count of the information. Regarding the first count, the court summarized the victim’s testimony concerning an incident where the defendant engaged in intercourse with her after tying her to a bed. Regarding the second count, the court summarized the victim’s testimony that the defendant engaged in intercourse with her without tying her. Regarding the third count, the court summarized the victim’s testimony that the defendant pulled up her nightgown and tickled her vagina with his fingers.

The court incorporated the victim’s testimony in its instructions in order to explain the elements of the crimes with which the defendant was charged. See State v. James, supra, 588; State v. Storlazzi, 191 Conn. 453, 464-67, 464 A.2d 829 (1983). “It is the duty of the trial court to refer to testimony in so far as it may be necessary to assist the jury to a clear understanding of the relationship of the testimony to the material facts. State v. Nims, [supra]. ‘The charge must go beyond a bare statement of accurate legal principles to the extent of indicating to the jury the application of those principles to the facts claimed to have been proven.’ State v. Sumner, 178 Conn. 163, 170-71, 422 A.2d 299 (1979).” State v. Gallman, 16 Conn. App. 433, 435, 547 A.2d 932 (1988); see State v. Cazimovski, 20 Conn. App. 190, 192, 565 A.2d 254 (1989).

There was no variance between the state’s evidence and its allegations in the bill of particulars. Regarding the first count, the criminal conduct stated in the bill of particulars, namely, forcible vaginal intercourse, coincided with the victim’s testimony as referred to in the court’s instructions. Likewise, under the second count, the conduct alleged in the bill of particulars, namely, vaginal intercourse with a child under the age of sixteen, was referred to in both the bill of particulars and the jury instructions. With respect to the third count, the court’s instructions were, if anything, unduly favorable to the defendant because they omitted the allegation and evidence of repeated acts of intercourse, and referred only to sexual contact.

V

The defendant next claims that the trial court erred in denying his request to submit the bill of particulars to the jury. He argues that the failure to submit the bill of particulars denied him due process of law and a fair trial because the jury could not be expected to reach a proper verdict if it were not aware of the full extent of the charges. The defendant’s sole support for this claim is Practice Book § 833, which provides: “When any bill of particulars is ordered, an amended or substitute information shall be filed incorporating its provisions.” We disagree.

The defendant’s argument is fatally flawed because it is based on the proposition that where the state files a bill of particulars, the information ipso facto becomes “two documents instead of one.” This is incorrect. “ ‘The bill of particulars does not become part of the [information]. See 4 Wharton, Criminal Law and Procedure § 1870. See generally 41 Am. Jur. 2d, Indictments and Informations, §§ 163-165.’ State v. Glass, 107 R.I. 86, 92, 265 A.2d 324 (1970).” State v. Roque, 190 Conn. 143, 154-55, 460 A.2d 26 (1983). The purpose of a bill of particulars is not to inform the jury of the nature of the charges against the defendant; it is to supply the accused and the court with additional information concerning an accusation to ensure that the defendant has received fair notice of the charges against him. Id., 154; State v. Cole, 8 Conn. App. 545, 554, 513 A.2d 752 (1986).

Where a defendant objects to the state’s failure to comply with § 833, and the trial court does not require compliance, the trial court has committed reversible error if the lack of an amended or substitute information could have reasonably affected the verdict. State v. Cole, supra. Section 833, however, is not self-executing. If the defendant fails to object to the state’s noncompliance, he cannot belatedly claim that the bill of particulars should have been submitted to the jury in lieu of an amended information.

Practice Book § 858 requires the trial court to submit to the jury “(l)[t]he . . . information upon which the defendant was tried; and (2) [a]ll exhibits received in evidence.” There is no requirement under § 858 that a separate bill of particulars, which has not been incorporated into an amended information, also be submitted to the jury. Indeed, to do so could lead to jury confusion since the jury would have to consolidate and reconcile the two documents during its deliberations. See United States v. Radetsky, 535 F.2d 556, 565 (10th Cir. 1976) (submission to jury of separate bill of particulars is undesirable).

VI

The defendant next claims that the imposition of consecutive sentences for sexual assault in the first degree in violation of General Statutes § 53a-70 (a), sexual assault in the second degree in violation of General Statutes § 53a-71 (a), and risk of injury to a child in violation of General Statutes § 53-21 deprived him of his double jeopardy rights. He claims that because the bill of particulars refers to the “exact same allegations,” both risk of injury and sexual assault in the second degree are, in this case, lesser included offenses of sexual assault in the first degree. This claim is without merit.

“[Ujnder the Blockburger test, sexual assault in the second degree is not a lesser included offense of sexual assault in the first degree” (footnote added); State v. Blackwell, 20 Conn. App. 193, 197, 565 A.2d 549 (1989); and “[t]here is no indication that these two clearly separate offenses were intended by the legislature to constitute one crime for double jeopardy purposes.” Id., 198. Likewise, risk of injury to a child and sexual assault in the first degree are separate offenses under Blockburger, because each requires proof of an element that the other does not. Cf. State v. McCall, 187 Conn. 73, 91-92, 444 A.2d 896 (1982) (risk of injury and sexual assault in the second degree are not the same offense for double jeopardy purposes).

The defendant also claims that the court improperly imposed sentence by attempting to compensate for the state’s having undercharged him. The court in its discretion imposed consecutive sentences that were within the applicable statutory limits. Once it is determined that a defendant was protected “against multiple punishments for the same offense”; North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969); the fact that the trial court imposed consecutive rather than concurrent sentences for different offenses did not violate his double jeopardy rights.

VII

The defendant’s final claim is that the trial court erred in denying a continuance for sentencing to permit further presentencing diagnostic evaluation pursuant to General Statutes § 17-244. We disagree.

The court granted the defendant’s motion for a § 17-244 exam after his conviction, and he was examined by Merrill Rotter, a psychiatrist. Rotter testified that the defendant should be referred to Whiting Forensic Institute (Whiting) for further evaluation to determine if he was dangerous to himself. The defendant requested that Rotter’s suggestion be followed and that he be referred to Whiting for further evaluation. The court denied the request, finding that the defendant was not dangerous to himself or others, and therefore did not fall within any of the categories of persons specified in General Statutes § 17-239 for treatment at Whiting. On the date of sentencing, the defendant again requested further evaluation, and the court denied the request.

The defendant argues that the court abused its discretion because the basis of its decision was that the defendant did not fall within any of the categories of persons eligible for care and treatment at Whiting under General Statutes § 17-239. He argues that this reasoning was improper because his request was for further evaluation and not for final commitment. We conclude, however, that the court did not abuse its discretion by declining to commit the defendant to Whiting for further evaluation.

Where the court has sufficient medical information from which it can make an informed judgment of the defendant’s mental condition, the court may properly deny his request for a § 17-244 diagnostic examination. State v. Gates, 198 Conn. 397, 404-405, 503 A.2d 163 (1986). Indeed, an initial examination pursuant to § 17-244 is required only “if it appears that [the defendant] is mentally ill and dangerous to himself or others.” See footnote 10, supra. That determination may take into account whether the defendant would be dangerous to others in a prison setting. State v. Gates, supra 404. Even the presence of some degree of mental illness does not require that the court “ ‘blindly and automatically implement the statutory machinery’ providing for psychiatric examinations”; id., 405, quoting Hall v. United States, 410 F.2d 653, 657 (4th Cir. 1969); prior to imposing sentence. A fortiori, whether the court should order a second examination under § 17-244 is left to the court’s discretion.

The trial court is responsible for determining the proper confinement for a convicted person “ ‘within the normal limits or range of custody which the conviction has authorized the State to impose.’ ” State v. Gates, supra, 402, quoting Meachum v. Fano, 427 U.S. 215, 225, 96 S. Ct. 2532, 49 L. Ed. 2d 451, reh. denied, 429 U.S. 873, 97 S. Ct. 191, 50 L. Ed. 2d 155 (1976). The court in its discretion may, under appropriate circumstances, make this decision without the aid of any report at all; see State v. Gates, supra; after a final recommendation has been made; see General Statutes § 17-245; or, as in the present case, after a recommendation for further evaluation. While the timing of the decision may vary, the substance of what must be decided remains the same, namely, whether the defendant is in need of custody, care and treatment at Whiting. General Statutes § 17-245 (c); State v. Gates, supra, 401. In determining whether a defendant is in need of such custody, care and treatment, the court must necessarily consider the types of persons for which Whiting exists.

In this case, the court found that the defendant was not dangerous to himself or others. The defendant does not claim that this finding is clearly erroneous. Further, the court had sufficient information, including the defendant’s testimony at trial, and Rotter’s testimony and report, to determine whether the defendant should be committed to Whiting rather than to a correctional facility.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 54-142a (c) provides in pertinent part: “Whenever any charge in a criminal case has been nolled in the superior court . . . if at least thirteen months have elapsed since such nolle, all police and court records and records of the state’s or prosecuting attorney or the prosecuting grand juror pertaining to such charge shall be erased.”

       Although the defendant did not request the trial court to review the records in camera, and instead sought direct access to them, during argument he specifically relied on our decision in State v. Douglas, 10 Conn. App. 103, 522 A.2d 302 (1987), where the relief ordered on remand was that the court conduct such a review. Thus, we do not regard it as fatal to his appellate claim that he did not make such a specific request, because the court was on notice of the availability of such review as a more limited response to the defendant’s claim for direct access.

       General Statutes § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       General Statutes § 54-86h provides: “No witness shall be automatically adjudged incompetent to testify because of age and any child who is a victim of assault, sexual assault or abuse shall be competent to testify without prior qualification. The weight to be given the evidence and the credibility of the witness shall be for the determination of the trier of fact.”

       At trial, the defendant excepted to the court’s failure to “state the facts as stated in the state’s response to bill of particulars dated July 7, 1988. I believe that . . . the facts to be proved should be those alleged in response to the bill of particulars.” In a virtually identical exception, the defendant claimed that the court improperly “chose three of the five incidents to which [the victim] has testified, one for each of . . . [the three offenses with which he was charged] and gave the jury the impression that each separate act was applied to a separate charge, that the three tie up situations were sexual assault one and that the incident after [the victim] had moved out of the house was sexual assault two and the touching was the risk of injury, and I don’t think that is the allegation in this case, and I think it is improper to have stated it that way.”

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

       General Statutes § 53a-71 (a) provides in pertinent part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under sixteen years of age . . .

       See footnote 3, supra.

        Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).

       General Statutes § 17-244 provides in pertinent part: “(a) Except as provided in section 17-255 any court prior to sentencing a person convicted of an offense for which the penalty may be imprisonment in the Connecticut Correctional Institution at Somers, or of a sex offense involving (1) physical force or violence, (2) disparity of age between an adult and a minor or (3) a sexual act of a compulsive or repetitive nature, may if it appears to the court that such person is mentally ill and dangerous to himself or others . . . order the commissioner to conduct an examination of the convicted defendant by qualified personnel of the institute. Upon completion of such examination the examiner shall report in writing to the court. Such report shall indicate whether the convicted defendant should be committed to the diagnostic unit ol' the institute for additional examination or should be sentenced in accordance with the conviction. ... If the report recommends additional examination at the diagnostic unit, the court may, after a hearing, order the convicted defendant committed to the diagnostic unit of the institute for a period not to exceed sixty days, except as provided in section 17-245 provided the hearing may be waived by the defendant.”

       General Statutes § 17-239 provides: “The Whiting Forensic Institute shall exist for the care and treatment of (1) mentally ill patients, confined in facilities under the control of the department of mental health, who require care and treatment under maximum security conditions, (2) persons convicted of any offense enumerated in section 17-244 who, after examination by the staff of the diagnostic unit of the institute as herein provided, are determined to be mentally ill and dangerous to themselves or others and to require custody, care and treatment at the institute and (3) inmates in the custody of the commissioner of correction who are transferred in accordance with sections 17-194b to 17-194g, inclusive, and who require custody, care and treatment at the institute.”


author: Per Curiam.

text:
    Alice M. Kalandyk v. John M. Kalandyk
    (7350)
    Daly, O’Connell and Nokcott, Js.
    Argued September 14
    decision released September 21, 1989

      Ernest J. Diette, Jr., for the appellant (defendant).

      Joseph Chiarelli, for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    Town of Haddam v. John DeRay
    (7738)
    Daly, Norcott and Foti, Js.
    Argued October 10
    decision released October 17, 1989

      John DeRay, pro se, the appellant (defendant).

      William Howard, for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    State of Connecticut v. Gilberto Rodriguez, Jr.
    (7906)
    Borden, Norcott and Foti, Js.
    Argued October 11
    decision released October 18, 1989

      David M. Abbamonte, for the appellant (defendant).

      RitaM. Shair, deputy assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Richard Palombo, assistant state’s attorney, for the appellee (state).
   Per Curiam.

There is no error.


text:
    Henry Friedlander v. Claire Friedlander Claire Deutsch Friedlander v. Henry Z. Friedlander
    (6946)
    (7425)
    Spallone, Daly and O’Connell, Js.
    Argued October 12
    decision released October 18, 1989

      Henry Z. Friedlander, pro se, the appellant (plaintiff in the first case, defendant in the second case).

      Saul Kwartin, for the appellee (defendant in the first case, plaintiff in the second case).
   Per Curiam.

There is no error in either case.


text:
    Hartford Federal Savings and Loan Association v. Stanley Tucker et al.
    (7387)
    (7388)
    (7389)
    (7390)
    Spallone, O’Connell and Foti, Js.
    Submitted on briefs October 4
    decision released October 26, 1989

      Stanley V. Tucker, pro se, the appellant (defendant).

      Mark Rosenbaum and Robert B. Basine, with whom, on the brief, was F. Gina Gelb, for the appellee (plaintiff Frances Gionfrido).
   Per Curiam.

These appeals came before this court where the named defendant, Stanley Tucker, failed to appear for oral argument.

Because of Tucker’s failure to appear, and with the acquiescence of other counsel in attendance, we will decide this case on the record and briefs.

Our review of same and of those issues properly before us reveals that the named defendant’s claims of error are without merit.

Accordingly, as to each appeal:

There is no error.


text:
    Anne Todd v. Edward A. Jazlowiecki
    (7370)
    Dupont, Foti and Lavery, Js.
    Argued October 31
    decision released October 31, 1989

      Stephen R. Corbeil, with whom, on the brief, was Paul S. Bialobrzeski, for the appellant (defendant).

      Douglas W. Hammond, with whom, on the brief, was Edmund T. Grady, Jr., for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    Susan Langford v. Bart A. Sayet
    (7714)
    Borden, Daly and Norcott, Js.
    Argued November 9
    decision released November 15, 1989

      Sanford J. Plepler, with whom, on the brief, were Debra C. Ruel and Christine Metzner, law student intern, for the appellant (plaintiff).

      Jeremy G. Zimmermann, with whom were James P. Brochin and Tabitha Ponnambalam, for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    State of Connecticut v. Dale Brooks
    (6948)
    Borden, Daly and Norcott, Js.
    Argued November 8
    decision released November 14, 1989

      Charles C. Greenwald, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were C. Robert Satti, Sr., state’s attorney, and Michael Regan, assistant state’s attorney, for the appellee (state).
   Per Curiam.

There is no error.


text:
    Commissioner of Health Services v. Youth Challenge of Greater Hartford, Inc., et al.
    (7661)
    Daly, Foti and Lavery, Js.
    Argued November 3
    decision released November 14, 1989

      James W. Sherman> for the appellants (defendants).

      Maite Barainca, assistant attorney general, with whom, on the brief, were ClarineNardi Riddle, attorney general, and Robert E. Walsh and Richard J. Lynch, assistant attorneys general, for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    Jerome H. Diamond v. Augustus J. Simmons et al.
    (7881)
    Spallone, Nokcott and Lavery, Js.
    Argued November 15
    decision released November 22, 1989

      Augustus J. Simmons, pro se, the appellant (named defendant).

      Richard B. Laschever, for the appellee (plaintiff).
   Per Curiam.

The named defendant, in this appeal from a judgment of foreclosure by sale, claims that the trial court erred (1) in ordering him to proceed to trial, (2) in failing to consider his alleged alcohol problem, and (3) in finding for the plaintiff and rendering a judgment of foreclosure by sale. We see no merit to these claims.

The record discloses that counsel for the named defendant did not ask for a continuance, and that the named defendant failed to preserve his claim of an alleged alcohol problem. The record fails to disclose that the trial court abused its discretion or acted other than in accordance with applicable law in determining that a judgment of foreclosure by sale should enter.

There is no error.


text:
    State of Connecticut v. Everton Johnson
    (7917)
    Borden, Daly and Norcott, Js.
    Argued November 9
    decision released November 22, 1989

      William T. Browne, with whom, on the brief, was Maribeth M. Browne, for the appellant (defendant).

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Barbara J. Nelson, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals from the judgment of conviction of possession of four ounces or more of marihuana, in violation of General Statutes § 21a-279 (b). He claims that the trial court erred (1) in admitting certain testimony by a police officer that was inadmissible expert opinion testimony, (2) in denying his motion for a mistrial, (3) in permitting certain testimony by a police officer that deprived him of a fair trial, and (4) in denying his motion for judgment of acquittal based on insufficiency of the evidence. We have fully reviewed his claims, and find no error.

In his first claim of error, the defendant presents eleven instances of what he argues was inadmissible expert opinion testimony. Ten of these instances were elicited by him on cross-examination, without objections or motions to strike. Thus, any error or prejudice to him was invited by him. The eleventh was elicited by the state on redirect examination. It does not merit review because the defendant did not object on the ground now asserted on appeal. The second claim of error, namely, the denial of his motion for a mistrial, is without merit. Although the challenged testimony was improper, the court gave a thoroughly adequate curative charge to the jury and was well within its discretion in failing to declare a mistrial. In his third claim of error, the defendant presents ten instances of police testimony that he claims deprived him of a fair trial. Eight of these instances occurred during the defendant’s cross-examination, and no objections or motions to strike were interposed by the defendant. One of the ten occurred on direct examination by the state. The defendant did not object to it, and we perceive nothing objectionable about it. The tenth occurred during redirect examination, and the defendant objected on grounds different from those now asserted on appeal. With regard to the fourth claim of error, we have examined the evidence and conclude that it is sufficient to sustain the verdict.

There is no error.


text:
    State of Connecticut v. Barbara Garigali
    (7844)
    Dupont, C. J., Foti and Lavery, Js.
    Argued October 31
    decision released December 6, 1989

      Ralph C. Crozier, with whom, on the brief, was BarbaraL. DeGennaro, for the appellant (defendant).

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, were Eugene J. Callahan, state’s attorney, and Robert Katz, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals from the judgments of conviction rendered after her pleas of guilty under the Alford doctrine to larceny in the first degree in violation of General Statutes. § 53a-122, attempted larceny in the third degree in violation of General Statutes § 53a-124, issuing a bad check in violation of General Statutes § 53a-128, and failure to appear in the second degree in violation of General Statutes § 53a-173. The defendant claims that her guilty pleas were invalid because the trial court failed to advise her of the elements of the crimes to which she was pleading guilty, and that the court erred in failing to grant her “motion to reopen.”

The state concedes, and we agree after a review of the record, that the defendant was not informed by the trial court during the plea canvass of the essential elements of the crimes with which she was charged. State v. Hackett, 16 Conn. App. 601, 602-603, 548 A.2d 16 (1988); State v. Patterson, 14 Conn. App. 159, 160, 540 A.2d 703, cert. denied, 208 Conn. 813, 546 A.2d 281 (1988). A trial court may not accept a guilty plea until it is satisfied that the defendant fully understands the nature of the charges to which the pleas are offered. Practice Book § 711. “ ‘The provisions of Practice Book §711 are mandatory when challenged on direct appeal.’ ” State v. Patterson, supra, 161, quoting State v. Loyd, 8 Conn. App. 491, 494B, 513 A.2d 193 (1986), cert. denied, 203 Conn. 801, 522 A.2d 293 (1987).

There is error, the judgments are set aside and the cases are remanded with direction to permit the defendant to withdraw her guilty pleas and for further proceedings according to law.

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       On appeal this motion is characterized as a motion to withdraw plea pursuant to Practice Book § 720. While we note that a motion to open is not the proper procedural vehicle with which to withdraw a guilty plea, this characterization is not disputed under the present circumstances.


text:
    Ruth A. O’Connor v. John P. O’Connor
    (7807)
    Spallone, Norcott and Lavery, Js.
    Argued November 16
    decision released December 13, 1989

      Arthur P. Meisler, with whom, on the brief, was Deirdre M. McPadden, certified legal intern, for the appellant (plaintiff).

      Jerome A. Rosen, for the appellee (defendant).
   Per Curiam.

This is an appeal by the plaintiff from the court’s financial and property award in a dissolution action. We find no error.

In this appeal, the plaintiff attacks the discretionary and factfinding functions of the trial court. In reaching its decision, the trial court properly considered the criteria set forth in General Statutes § 46b-81 and the evidence and financial affidavits of the parties. Our review of the record, transcripts and briefs fails to disclose any abuse of discretion. The trial court’s conclusions were in accordance with applicable law. “A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria.” Crocker v. Crocker, 13 Conn. App. 129, 131, 534 A.2d 1251 (1987). Our review of a trial court’s exercise of discretion is limited in domestic relations cases to “ ‘whether the [trial] court correctly applied the law and could reasonably have con-eluded as it did.’ ” Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); Russo v. Russo, 1 Conn. App. 604, 607, 474 A.2d 473 (1984).

We find that the trial court correctly applied the law and could reasonably have concluded as it did.

There is no error.


text:
    Marion Wallace v. Commission on Human Rights and Opportunities et al.
    (7848)
    Daly, Norcott and Foti, Js.
    Argued December 11
    decision released December 19, 1989

      Marion Wallace, pro se, the appellant (plaintiff).

      Deborah Green, with whom, on the brief, was Lawrence A. Ouellette, Jr., for the appellees (defendants).
   Per Curiam.

There is no error.


text:
    Raymond Foote et al. v. Campbell Soup Company et al.
    (7938)
    Spallone, Daly and Foti, Js.
    Argued December 13
    decision released December 19, 1989

      Laurence V. Parnoff, for the appellants (plaintiffs).

      Richard R. Steimnetz, with whom, on the brief, was Paul D. Sanson, for the appellees (defendants).
   Per Curiam.

There is no error.


text:
    State of Connecticut v. Philip D. Knott
    (5978)
    Daly, Norcott and Foti, Js.
    Argued December 13
    decision released December 19, 1989

      Michael R. Corsello, special public defender, with whom, on the brief, was Randy L. Cohen, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Warren Murray, deputy assistant state’s attorney, for the appellee (state).
   Per Curiam.

There is no error.


text:
    Jean-Claude Archer et al. v. Christos Drougas et al.
    (7749)
    Borden, Spallone and Lavery, Js.
    Argued December 14
    decision released December 29, 1989

      James M. Nugent, with whom, on the brief, was F. J. Polesak, Jr., for the appellant (defendant Tracy Polesak).

      Henry Lyons III, for the appellees (plaintiffs).
   Per Curiam.

There is no error.


text:
    Sorenson and Sorenson Associates et al. v. Planning and Zoning Commission of the Town of Bethany et al.
    (7861)
    Borden, O’Connell and Lavery, Js.
    Argued December 7
    decision released December 27, 1989

      Jane W. Freeman, for the appellants (plaintiffs).

      Gerald P. Dwyer, town counsel, for the appellees (named defendant et al.).

      Priscilla C. Mulvaney, for the appellee (defendant Elsie M. Halter).
   Per Curiam.

This case is controlled by Intervale Homeowners Assn. v. Environmental Protection Board, 19 Conn. App. 334, 562 A.2d 536 (1989).

There is no error.


text:
    Holtzman, Wise and Shepard v. Roosevelt Acquisition Company, Inc.
    (8019)
    Borden, Spallone and O’Connell, Js.
    Argued December 20
    decision released December 28, 1989

      Timothy J. Johnston, with whom, on the brief, was Patricia A. Thompson, for the appellant (defendant). Ben A. Solnit, for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    In re Roy P.

    (7554)
    Borden, Sfallone and O’Connell, Js.
    Argued December 20
    decision released December 29, 1989

      Jeremiah Donovan, special public defender, for the appellant (respondent).

      BrmeA. Tonkonow, state’s advocate, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The record and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Per Curiam.

There is no error.


text:
    Sam Lapides v. State of Connecticut, Department of Public Safety, Division of State Police, et al.
    (8117)
    Spallone, Daly and Nokcott, Js.
    Argued January 3
    decision released January 10, 1990

      Sam Lapides, pro se, the appellant (plaintiff).

      Margaret Quitter Chappie, assistant attorney general, with whom, on the brief, were ClarineNardi Riddle, attorney general, and Henri Alexandre, assistant attorney general, for the appellee (named defendant).

      Victor Perpetua, for the appellee (defendant freedom of information commission).
   Per Curiam.

There is no error.


text:
    Tommie Yeager v. William Yeager
    (7598)
    Spallone, Daly and Norcott, Js.
    Argued January 2
    decision released January 10, 1990

      William H. Cashman, for the appellant (defendant). Shirley V. Hoogstra, for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    Renate Werner v. Conservation Commission of the Town of Easton
    (7903)
    Spallone, Daly and Foti, Js.
    Argued December 13, 1989
    decision released January 10, 1990

      Andrew D. Cretella, for the appellant (plaintiff).

      Ronald D. Williams, for the appellee (defendant).
   Per Curiam.

The plaintiff appeals from the judgment of the trial court dismissing his appeal from a decision of the defendant, the conservation commission of the town of Easton. The defendant had denied the plaintiff’s application for a declaratory ruling to establish a three acre farm pond for the operation of a Christmas tree farm on his premises. The plaintiff claims that the court erred in concluding (1) that he was not entitled to establish a three acre farm pond as a matter of right pursuant to General Statutes § 22a-40 (a) (1), as amended by Public Acts 1987, No. 87-538, and § 3.1 of the regulations of the conservation commission of the town of Easton, (2) that the defendant’s decision was supported by substantial evidence in the record, and (3) that the hearing afforded to the plaintiff was fundamentally fair. We have fully considered the plaintiff’s claims, the defendant’s responses thereto, the entire record of this case and the trial court’s thoughtful memorandum of decision. On the basis of that review, we conclude that the plaintiff’s claims of error are without merit.

There is no error.


text:
    State of Connecticut v. James J. Johnston
    (8151)
    Dupont, C. J., Foti and Lavery, Js.
    Argued January 10
    decision released January 18, 1990

      John D. Maxwell, for the appellant (defendant).

      LeonF. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, was John T. Redway, state’s attorney, Barbara Hoffman, deputy assistant state’s attorney, and John O Meara, deputy assistant state’s attorney, for the appellee (state).
   Per Curiam.

There is no error.


text:
    Merrill K. Hoskins v. Theodore G. Hoskins
    (8172)
    Dupont, C. J., Foti and La very, Js.
    Argued January 10-
    decision released January 17, 1990

      Allen A. Currier, for the appellant (plaintiff).

      Angela Saitta, for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    Ledgecrest Associates v. Zanor Dillman
    (8201)
    Dupont, C. J., Foti and Lavery, Js.
    Submitted on briefs January 11
    decision released January 17, 1990

      James F. Aspell filed a brief for the appellant (defendant).

      Christine M. Whitehead filed a brief for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    F. Woodward Lewis, Jr. v. William H. Cashman
    (8150)
    Dupont, C. J., Foti and Lavery, Js.
    Argued January 9
    decision released January 18, 1990

      F. Woodward Lewis, Jr., pro se, the appellant (plaintiff).

      Elizabeth M. Cristofaro, for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    Louis Ambrogne et al. v. James Cazanas et al.
    (7759)
    Borden, O’Connell and Barry, Js.
    Argued January 19
    decision released January 31, 1990

      Ronald J. Habansky, for the appellant (named defendant).

      Janet C. Hall, with whom was Frances Erlichson, for the appellees (defendant Reva Goode et al.).
   Per Curiam.

We have fully reviewed the record, transcripts and briefs in this matter. We find nothing that supports the argument that, under the facts of this case, the trial court abused its discretion in dismissing the named defendant’s cross complaint for his failure to appear and prosecute and for his failure to present evidence after being given an opportunity to do so. Nor do we find support for the argument that the trial court abused its discretion in refusing to open the dismissal. Levy v. Levy, 14 Conn. App. 801, 802, 539 A.2d 1042, cert. denied, 208 Conn. 803, 545 A.2d 1100 (1988).

There is no error.


text:
    Jean Molitierno v. Carmen Molitierno
    (7726)
    Daly, O’Connell and Foti, Js.
    Argued January 17
    decision released January 24, 1990

      Mark R. Soboslai, for the appellant (defendant).

      James Wu, for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    State of Connecticut v. Larson Jackson
    (8185)
    Spallone, Daly and Nqkcott, Js.
    Argued January 5
    decision released February 1, 1990

      Michael A. Fitzpatrick, special public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom were Donald A. Browne, state’s attorney, and C. Robert Satti, Jr., assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals his conviction, after a jury trial, of violation of the state dependency producing drug law; General Statutes § 21a-278 (b); and claims that the trial court committed reversible error denying his motion to suppress illegally seized evidence.

Our review of the record and briefs, in light of our holdings in State v. Oliver, 17 Conn. App. 108, 550 A.2d 316 (1988); State v. Rodriguez, 14 Conn. App. 574, 542 A.2d 342 (1988); and State v. Williamson, 10 Conn. App. 532, 524 A.2d 655, cert. denied, 204 Conn. 801, 525 A.2d 965 (1987); clearly indicates that the defendant’s averment of error is without merit.

There is no error.


text:
    State of Connecticut v. Christopher Sayer
    (8213)
    Borden, O’Connell and Norcott, Js.
    Argued January 16
    decision released January 25, 1990

      Robert W. Smith, with whom, on the brief, was James R. Smith, for the appellant (defendant).

      Julia DiCocco Dewey, assistant state’s attorney, with whom, on the brief, were John Connelly, state’s attorney, and EvaLenczewski, deputy assistant state’s attorney, for the appellee (state).
   Per Curiam.

This case is controlled by State v. Lloyd, 185 Conn. 199, 440 A.2d 867 (1981).

There is no error.


text:
    Norman Dean v. Alex Filipowich et al.
    (7965)
    Spallone, O’Connell and Foti, Js.
    Argued February 2
    decision released February 8, 1990

      Benson A. Snaider, with whom, on the brief, was Margaret G. Dean, for the appellant (plaintiff).

      John W. Colleran, for the appellees (named defendant et al.).

      Richard J. Buturla, for the appellees (defendant Sol Silverstein et al.).
   Per Curiam.

In this appeal, the plaintiff attacks the factual findings of the trial court and faults the court’s exercise of its discretionary powers.

Our review of the record fails to disclose that the trial court’s factual findings were clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law. Practice Book § 4061.

There is no error.


text:
    Linda Kahl v. Robert Kahl
    (8207)
    Spallone, O’Connell and Foti, Js.
    Argued January 31
    decision released February 8, 1990

      I. David Marder, with whom, on the brief, was Irene L. Cornish, for the appellant (defendant).

      Kathleen D. Stingle, for the appellee (plaintiff).
   Per Curiam.

There is no error.