author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. J.R.

    (AC 21053)
    Dranginis, Bishop and Daly, Js.
    Argued February 22
    officially released May 14, 2002

      Joseph Visone, special public defender, for the appellant (defendant).

      Bruce R. Lockwood, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Cara F. Eschuk, senior assistant state’s attorney, for the appellee (state).

       To protect the privacy of the victim and in keeping with the spirit of General Statutes § 54-86e, we refer to the defendant as J.R.

   Opinion

BISHOP, J.

The defendant, J.R., appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70, three counts of sexual assault in the second degree in violation of General Statutes § 53a-71, two counts of sexual assault in the third degree in violation of General Statutes § 53a-72a and two counts of risk of injury to a child in violation of General Statutes § 53-21. The defendant claims that the court improperly (1) denied his timely request to poll the jury and (2) admitted into evidence hearsay testimony. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During her early childhood, the victim, a biological daughter of the defendant, lived in Puerto Rico with her grandmother. At the age of eight, the victim moved to Waterbury and lived with the defendant, her stepmother and her two half-siblings. In 1992, when she was eleven years old, the victim was sexually abused by the defendant. The sexual abuse continued over the next four years while her stepmother was at work.

In 1997, the victim reported the abuse to a counselor at her school. The counselor contacted investigators at the department of children and families (department), who notified the police. The defendant subsequently was arrested and charged with nine counts of sexual misconduct. Thereafter, a jury found the defendant guilty of all nine counts, and the court sentenced him to a total effective sentence of forty-three years imprisonment, execution suspended after twenty-three years, and fifteen years probation. This appeal followed.

I

The defendant first claims that the court improperly denied his timely request to poll the jury. We disagree.

On December 3,1999, after the jury returned a verdict finding the defendant guilty of all nine counts, the court queried the foreman regarding the defendant’s guilt on each separate count. The clerk then asked the jurors to listen to their verdict as it was accepted and recorded, and the following colloquy ensued:

“The Clerk: So say you, Mr. Foreperson?
“[Foreperson]: Yes.
“The Clerk: So say you all?
“The Jury: Yes.
“The Clerk: Thank you. You may be seated.

“The Court: You may be seated, Mr. [R.] On behalf of the state of Connecticut and the defense, we thank you very much for your diligent performance of your duties as jurors in this case. You are now excused. I ask you for the final time to adjourn to the jury deliberation room, and I will excuse you and have you escorted from the courthouse momentarily.”

After the jury left the courtroom, the following exchange took place:

“[Prosecutor]: Your Honor, I’d like to place on [the] record as your clerk asked the final question, ‘[S]o say you, Mr. Foreperson, so say you all,’ that I personally observed each of the jurors individually answering aloud, ‘yes.’
“[Defense Counsel]: Your Honor, under the Practice Book, I’m entitled to have them polled individually.
“[Prosecutor]: Your Honor, that is correct, but the jury is now being dismissed, and that’s—

“The Court: You did not request that. And after the verdict was rendered, before I accepted it and ordered it recorded, I specifically paused and watched you in order to give you an opportunity to do that.

“[Prosecutor]: But I would just indicate as I said for the record that I did—I particularly took note of that because of the issue of jury polling, and I was able to observe each of the jurors verbally say, ‘yes.’ I’m not sure that that would have been picked up by the monitor, and that’s why I wanted to put it on the record.

“The Court: Thank you.
“[Prosecutor]: Your Honor, may we go on from that? The state has a motion in this case.
“The Court: Yes.”

The defendant did not object and made no further comment on the matter.

On February 13, 2001, the defendant filed a motion seeking to rectify a portion of the trial transcript concerning the verdict. The defendant requested that the court reporter be ordered to listen to the audiotapes of the December 3, 1999 proceedings “to clarify if the jurors were still in the jury deliberation room, waiting to be excused by the judge and escorted from the court[house] . . . when defense counsel stated that he was ‘entitled to have them polled individually.’ ” The court denied the motion because the defendant did not allege that the transcript was incorrect and because he was improperly seeking “an order of the court directing the court reporter to create a record based upon her personal recollection of the proceedings of December 3, 1999.”

On February 15, 2001, the defendant filed a motion for articulation requesting that the court “articulate [its] decision denying defense counsel’s request for a polling of the jury that was made after the jury had returned its verdict in open court and before the jury had been dispersed.” The court responded in a written memorandum of decision that “the defendant never asked the court to poll the jury, either before or after the verdict was rendered. Therefore, the court has nothing to articulate . . . .”

Practice Book § 42-31 provides in relevant part: “After a verdict has been returned and before the jury have been discharged, the jury shall be polled at the request of any party or upon the judicial authority’s own motion. The poll shall be conducted by the clerk of the court by asking each juror individually whether the verdict announced is such juror’s verdict. . . .” “[P]ursuant to [Practice Book] § 42-31, a trial court’s obligation to poll the jury upon a timely request from either party is mandatory.” State v. Pare, 253 Conn. 611, 621, 755 A.2d 180 (2000).

The issue of whether the court correctly concluded that the defendant never requested a jury poll presents a mixed question of fact and law. State v. Cobb, 251 Conn. 285, 357, 743 A.2d 1 (1999). The court was in a unique position to draw its factual impressions from its observation of the demeanor of counsel and the flow of conversation during the colloquy after the jury had left the courtroom. See State v. Lipscomb, 258 Conn. 68, 74, 779 A.2d 88 (2001). The determination, however, of whether the words used by counsel constituted a clear and unambiguous request for a jury poll presents a legal question. The scope of our review of the court’s determination that counsel did not request a jury poll is, therefore, plenary. State v. Cobb, supra, 357-59.

We begin by noting that the prosecutor initially raised the issue of how the individual jurors may have voted when she stated that she had “personally observed each of the jurors individually answering aloud yes.” Only then did defense counsel comment that under the rules of practice he was “entitled” to have the jurors polled individually. We conclude that, under the circumstances, the court’s response to defense counsel’s remark was not the denial of a request to poll the jury, but merely reflected the court’s understanding that counsel never asked the court to poll the jury after the verdict was rendered and before it was accepted and recorded. Moreover, nothing further was said to indicate that defense counsel’s remark should be construed as a request. Counsel for the defendant did not ask to bring the jury back, did not ask for a ruling and did not take issue with the court’s response. There also is no evidence in the record that defense counsel requested a poll at any other time during the proceedings.

Furthermore, the court’s conclusion comports with long-standing principles of statutory construction that require a statute to be applied according to its plain meaning and as its words direct. Wendt v. Wendt, 59 Conn. App. 656, 682, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000); Interlude, Inc. v. Skurat, 67 Conn. App. 505, 516, 787 A.2d 631, cert. granted on other grounds, 259 Conn. 925, 793 A.2d 251 (2002). The principles of statutory construction apply with equal force to the rules of practice. State v. Pare, supra, 253 Conn. 622.

The term “request,” as used in Practice Book § 42-31, is not defined in our rules of practice. “It is well established that, when determining the meaning of a word, it is appropriate to look to the common understanding of the term as expressed in a dictionary. . . . This precept . . . pertains primarily to the situation where no statutory definition is available.” (Citation omitted; internal quotation marks omitted.) State v. Spillane, 255 Conn. 746, 755, 770 A.2d 898 (2001). We, therefore, look to Webster’s Third New International Dictionary, which defines the word “request” as “[t]he act of asking for something ... an expression of a desire or wish . . .

In construing the language of Practice Book § 42-31 according to its plain and ordinary meaning, we conclude that the defendant was required to make a clear and unambiguous request to poll the jury. An expression of entitlement, without more, is not the equivalent of such a request.

Our reasoning in Solomon v. Hall-Brooke Foundation, Inc., 30 Conn. App. 129, 619 A.2d 863 (1993), is applicable here. In Solomon, the court determined that the plaintiffs request for “such other relief as the court deems necessary and just” was too amorphous to constitute a claim for money damages. (Internal quotation marks omitted.) Id., 134. In reaching that conclusion, the court relied on Practice Book § 285A, now § 5-2, which provides in relevant part that “[a]ny party intending to raise any question of law which may be the subject of an appeal must either state the question distinctly to the judicial authority in a written trial brief ... or state the question distinctly to the judicial authority on the record .... If the party fails to do this, the judicial authority will be under no obligation to decide the question.” The court observed that “[a] claim is distinctly raised if it is so stated as to bring to the attention of the court the precise matter on which its decision is being asked. ... A claim briefly suggested is not distinctly raised.” (Internal quotation marks omitted.) Solomon v. Hall-Brooke Foundation, Inc., supra, 134. This court ultimately concluded that the trial court’s failure to award money damages to the plaintiff was proper because she failed to include in her complaint a specific request for such damages. Id., 134-35.

Here, as in Solomon, the defendant failed to state his alleged request with sufficient specificity to apprise the court of the precise matter on which a decision was being asked. Accordingly, the defendant’s remark did not rise to the level of a request, and the court did not treat it as one.

The defendant argues that both the court and the state understood defense counsel’s remark as a request to poll the jury. The defendant contends that this is evident in the state’s response, “[T]hat is correct, but the jury is now being dismissed . . .” and the court’s observation that it had given the defendant an opportunity to request a poll of the jury after the verdict was rendered. We disagree.

In denying the defendant’s motion for articulation, the court expressly concluded that the defendant “never asked the court to poll the jury, either before or after the verdict was rendered.” The court is in the best position to evaluate the circumstances of each case. LaMontagne v. Musano, Inc., 61 Conn. App. 60, 64, 762 A.2d 508 (2000). What the state may have believed is irrelevant in light of the fact that only the court is empowered to order a poll of the jurors pursuant to Practice Book § 42-31.

Because the court properly determined that defense counsel did not request that the jury be polled, there is no need to address the defendant’s related claim that the request was timely made.

II

The defendant next claims that he was denied his state and federal constitutional rights to a fair trial when the court permitted the state to introduce second and third level hearsay testimony through a department investigator. The defendant seeks review of his unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error doctrine. Practice Book § 60-5.

During its case-in-chief, the state offered the testimony of John Ferrer, an expert in the investigation of child sexual abuse. Ferrer testified that on February 27, 1997, he and a colleague, April Crosby, interviewed the victim at her school. Ferrer also testified that he and Crosby each were required to keep written documentation, referred to as a running narrative, of their work on the case, that prior to the trial he had reviewed that document and that he had brought the document to court to refresh his memory, if necessary. Ferrer then proceeded to describe his conversations with the victim, her stepmother, the school guidance counselor and the defendant. The defendant did not object. Indeed, on cross-examination, defense counsel offered Ferrer’s running narrative into evidence as a defense exhibit. Defense counsel also referred to the contents of the narrative during closing argument, when he attempted to establish inconsistencies in the victim’s testimony.

The defendant now claims that the following portions of Ferrer’s testimony were inadmissible hearsay: (1) two statements by the victim’s stepmother that the victim had been missing for some time, (2) a statement by the victim’s stepmother that she previously had been told when the victim ran away that she had to wait so many hours before she could call the police, (3) a statement about an anonymous telephone call to the school that the defendant was sexually abusing the victim, (4) a statement by the victim that the defendant made her wear bikini underwear, (5) a statement by the victim’s stepmother that the victim’s uncle abused the victim when she was eight years old and (6) a statement by the victim that the defendant had locked her in her room for getting a bad report card from school.

Under State v. Golding, supra, 213 Conn. 239-40, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) “The first two requirements involve a determination of whether the claim is reviewable; the second two requirements involve a determination of whether the defendant may prevail.” State v. Woods, 250 Conn. 807, 815, 740 A.2d 371 (1999).

The state first argues that the defendant’s claim is inadequately briefed because his brief does not comply with the requirements of Practice Book § 67-4 (d) (3), which provides: “When error is claimed in any evidentiary ruling in a court or jury case, the brief or appendix shall include a verbatim statement of the following: the question or offer of exhibit; the objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answer, if any; and the ruling.” The state points out that the defendant failed to include in his brief or appendix a verbatim statement of the questions and answers he attacks on appeal, but merely paraphrased the relevant testimony and provided transcript citations. The state thus argues that this court should decline to review the defendant’s claim.

We agree with the state that the defendant’s brief did not include a verbatim statement of the testimony in question. “Generally, this court will not review claims that are improperly briefed. Although we do not condone this failure to adhere to the rules of practice, in this case, however, the subject questions and rulings [were] sufficiently delineated for us to review the [defendant’s] claim.” Boretti v. Panacea Co., 67 Conn. App. 223, 226 n.5, 786 A.2d 1164 (2001), cert. denied, 259 Conn. 918, 791 A.2d 565 (2002).

Under Golding, the record is adequate to review the defendant’s claim because the disputed portion of Ferrer’s testimony is contained in the trial transcript. The claim also is of constitutional magnitude alleging the violation of a fundamental right. Although “[u]npreserved hearsay claims do not automatically invoke constitutional rights to confrontation;” (internal quotation marks omitted) State v. Dixon, 62 Conn. App. 643, 649, 772 A.2d 166 (2001); “[e]vidence that does not fall within a firmly rooted hearsay exception ... is inadmissible under the Confrontation Clause absent a showing of particularized guarantees of trustworthiness.” State v. Schiappa, 248 Conn. 132, 159, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999). We conclude, however, that the defendant may not prevail under the third prong of Golding because he has not established that a constitutional violation clearly exists that clearly deprived him of a fair trial.

During his cross-examination of Ferrer, defense counsel himself offered into evidence Ferrer’s running narrative as a defense exhibit. The narrative contained all of the information that the defendant now contends is inadmissible hearsay. “The defendant cannot now claim ‘foul’ because of the admission of evidence which he allowed in for tactical purposes.” State v. Anderson, 209 Conn. 622, 633, 553 A.2d 589 (1989). Furthermore, in his closing argument, defense counsel again referred to the material in Ferrer’s running narrative when he attempted to establish inconsistencies in the victim’s testimony. Having used the document to his advantage, the defendant cannot subsequently argue that testimony on matters described in the running narrative was improper and deprived him of a fair trial. See State v. Hawkins, 51 Conn. App. 248, 255-56, 722 A.2d 278 (1998).

The defendant also seeks review under the plain error doctrine. “It is . . . well established that plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... A defendant cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Citation omitted; internal quotation marks omitted.) State v. Solman, 67 Conn. App. 235, 239, 786 A.2d 1184 (2001), cert. denied, 259 Conn. 917, 791 A.2d 568 (2002).

We conclude that the defendant’s claim does not meet the “truly extraordinary” standard for all of the same reasons it does not satisfy the third prong of Golding. Accordingly, the defendant may not prevail under the plain error doctrine.

The judgment is affirmed.

In this opinion the other judges concurred.

       In making that determination, we are mindful that the right to poll the jury is not of constitutional dimension. State v. Pare, supra, 253 Conn. 623.

       Ferrer interviewed the stepmother, who speaks only Spanish, with the assistance of an interpreter.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. BILLY RODRIGUEZ
    (AC 21237)
    Dranginis, Bishop and Daly, Js.
    Argued February 22
    officially released May 14, 2002

      Deborah G. Stevenson, special public defender, for the appellant (defendant).

      Richard F. Jacobson, special assistant state’s attorney, with whom, on the brief, was Robert M. Brennan, assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Billy Rodriguez, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), larceny in the sixth degree in violation of General Statutes §§ 53a-125b (a) and 53a-119, and assault in the third degree in violation of General Statutes § 53a-61 (a) (l). On appeal, the defendant claims that the court (1) improperly denied his motions for a judgment of acquittal at the close of the state’s case-in-chief and at the close of evidence, and (2) improperly permitted the state to amend the substitute information. We affirm the judgment of the trial court.

The record discloses the following relevant facts. On July 29, 1999, at approximately 10 p.m., several teenagers, including Seamus Bradley, Victor Lima, Brandy Petrucci, Jared Sperry and Junior DeCosta, arrived at Shelton Park in Bridgeport. There, the teenagers engaged in conversation and listened to music on their car stereos for approximately twenty minutes, at which time three men, including the defendant, approached. Bradley noticed the men first and extended his hand, assuming that they were friendly. The men stood in front of Bradley for a moment and then two of them walked toward the vehicles that the teenagers had parked nearby. Only the defendant remained in front of Bradley, and he, seeking to divert Bradley’s attention, shook Bradley’s hand and ordered, “Don’t make any noise, don’t bring attention to you and ... let me see your wallet.” Bradley stood up, and the defendant attempted to punch him twice in the face. Bradley blocked the first punch, but the second punch struck the left side of his face, causing him to fall backward over a railing.

Meanwhile, the other two men, both armed with handguns, were attempting to steal two of the vehicles parked nearby. One of those men approached the driver’s door of the red 1993 Honda Civic that Petrucci had driven to the park. The door was slightly ajar because Sperry recently had entered the Honda and still was inside changing a compact disc. The man thrust his handgun through the opening and pressed its barrel against Sperry’s neck. The man ordered Sperry to “get in the passenger seat,” and he told him “don’t look at my face.” Sperry complied.

Immediately thereafter, the defendant stopped attacking Bradley and ran toward the Honda. He dived into the vehicle through an open window, landed in the backseat and yelled, “Get the other car, get the other car.” The third man, who was attempting to apprehend DeCosta in an effort to seize the keys to DeCosta’s vehicle, relented and quickly entered the Honda. As the three men began to speed off, Sperry exited the vehicle through the passenger door.

Within minutes, Officer Angel Rivera of the Bridgeport police department arrived at the scene. The teenagers provided Rivera with a description of the defendant, the other men and the Honda. Rivera, along with other Bridgeport police officers, searched the vicinity but found nothing related to the incident.

The following morning, the Bridgeport police department received a telephone call indicating that the Honda had been seen in the backyard of 212 Seaview Avenue in Bridgeport. Officer Jose Luna and Officer James Sheffield were dispatched to that location and a search ensued, but the Honda no longer was there. While Luna and Sheffield were returning to their vehicles, the defendant, who was driving the Honda, turned onto Seaview Avenue and pulled up behind Luna’s marked patrol car. As the officers approached the Honda, the defendant reversed direction, proceeded backward on Seaview Avenue and turned onto Central Avenue. The officers quickly entered their vehicles and pursued the Honda. On Central Avenue, the Honda spun out and the defendant fled on foot. Luna apprehended the defendant after a short chase.

The Honda appeared to have been ransacked. The stereo was missing, including the speakers. Petrucci’s purse, which had been in the Honda at the time of the robbery, was no longer in the vehicle.

That same day, Bradley, Petrucci and Lima each independently selected a photograph of the defendant from an array and identified him as the perpetrator who had punched Bradley in the course of the robbery. Petrucci’s purse, as well as the $200 it contained, was never recovered.

On August 31, 1999, the state charged the defendant, by substitute information, as follows: count one, robbery in the first degree in violation of § 53a-134 (a) (4); count two, larceny in the sixth degree in violation of §§ 53a-125b (a) and 53a-119; count three, attempt to commit robbery in the first degree in violation of § 53a-134 (a) (4) and General Statutes § 53a-49; and count four, assault in the third degree in violation of § 53a-61 (a) (1). In count one, the state accused the defendant of robbing Sperry of Petrucci’s Honda. In count two, the state accused the defendant of stealing Petrucci’s purse and its contents. In count three, the state accused the defendant of attempting to rob Bradley, and in count four, it accused the defendant of assaulting Bradley.

The defendant entered a plea of not guilty to each of the four charges and elected a jury trial. On June 28, 2000, the jury returned a verdict of guilty as to counts one, two and four, and a verdict of not guilty as to count three. The court accepted the verdict and rendered judgment accordingly. The defendant later was sentenced to a total effective term of twelve years imprisonment and eight years special parole. This appeal followed. Additional facts and procedural history will be presented as necessary.

I

The defendant claims that the court improperly denied (1) his motion for a judgment of acquittal at the close of the state’s case-in-chief and (2) his motion for judgment of acquittal at the close of evidence. We disagree.

The following additional procedural history is relevant to our resolution of these claims. On June 21, 2000, the state concluded its case-in-chief. On that same day, the defendant moved for a judgment of acquittal as to all four counts. Regarding counts one and two, in which the state charged the defendant with robbery in the first degree and larceny in the sixth degree, respectively, the defendant argued that the state had failed to present evidence demonstrating that he had intended to deprive Petrucci permanently of the Honda, her purse and its contents. Regarding count four, assault in the third degree, the defendant argued that the state had failed to present evidence indicating that Bradley had suffered a physical injury as a result of being struck in the face.

Regarding count three, attempt to commit robbery in the first degree, defense counsel argued: “The third count, Your Honor, attempted robbery in the first degree in regards to what the state represented was, I guess, the wallet or the money of Seamus Bradley. I’d indicate to Your Honor that when we began the trial, that charge initially referred to an automobile. The state’s representation on the record and that was changed to the actual money or wallet of Mr. Bradley. But in regards to that, I don’t believe that there is a sufficient nexus to group together my client, Mr. Rodriguez, with the individual or another one of the individuals who may have had one or two of the weapons based upon the testimony of different witnesses. At no time other than leaving the scene together in the automobile are any of these three individuals together. The testimony—when the count was originally an automobile— there’s some testimony that someone yelled, ‘Get that car, too,’ which I think would indicate a sufficient nexus. . . . The accomplice theory of linking my client with those two individuals to support the essential element that a gun was used is much less now that that count doesn’t refer to a car. We don’t have that statement of ‘get the other car, too.’ ”

That same day, the court denied the defendant’s motion as to each of the four counts. The following week, the defendant presented evidence in his defense; he testified, as did his alibi witness, Felix Santiago, that he was in a different location at the time of the events attributed to him by the state’s evidence. The state, in its rebuttal, called only one witness, Detective John Kennedy, who testified that, in his experience, individuals in distress sometimes call the police and falsely report a shooting to reduce the response time. At the close of the state’s rebuttal, the defendant renewed his motion for a judgment of acquittal. He did not advance any additional arguments, however, and the court denied his renewed motion on the basis of the reasoning underlying its denial of the defendant’s original motion for a judgment of acquittal.

In his first claim, which concerns the denial of the motion for a judgment of acquittal at the close of the state’s case-in-chief, the defendant challenges only the sufficiency of the evidence adduced by the state in its case-in-chief. We first must determine whether that claim is reviewable in light of the waiver rule and the defendant’s decision to present evidence in his defense.

“Under the waiver rule, when a motion for acquittal at the close of the state’s case is denied, a defendant may not secure appellate review of the trial court’s ruling without foregoing the right to put on evidence in his or her own behalf. The defendant’s sole remedy is to remain silent and, if convicted, to seek reversal of the conviction because of insufficiency of the state’s evidence. If the defendant elects to introduce evidence, the appellate review encompasses the evidence in toto. The defendant then runs the risk that the testimony of defense witnesses will fill an evidentiary gap in the state’s case. The waiver rule, therefore, forces the defendant to choose between waiving the right to a defense and waiving the right to put the state to its proof.” State v. Rutan, 194 Conn. 438, 440-41, 479 A.2d 1209 (1984). The defendant contends, however, that the waiver rule contravenes his privilege against self-incrimination as guaranteed by the fifth amendment to the United States constitution and article first, § 8, of the Connecticut constitution.

In the past, our Supreme Court has questioned whether courts should continue to apply the waiver rule in criminal cases and, in particular, has suggested strongly that the rule may violate a criminal defendant’s constitutional rights. See, e.g., State v. Rutan, supra, 194 Conn. 440-44. Despite its criticism of the waiver rule, our Supreme Court has not expressly abandoned it. Instead, when addressing a claim challenging the propriety of a court’s ruling on a motion for a judgment of acquittal at the close of the state’s case-in-chief, our Supreme Court customarily has granted review and considered only the evidence that has been presented by the state in its case-in-chief, regardless of whether the defendant has presented evidence. See, e.g., State v. Calonico, 256 Conn. 135, 139-40, 770 A.2d 454 (2001); State v. Cassidy, 236 Conn. 112, 135 n.25, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996), overruled on other grounds, State v. Alexander, 254 Conn. 290, 296, 755 A.2d 868 (2000); State v. Rutan, supra, 444-45. In our analysis, we follow the lead of our Supreme Court.

“In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. ... As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Citations omitted; internal quotation marks omitted.) State v. Berger, 249 Conn. 218, 224-25, 733 A.2d 156 (1999).

We are mindful that we need not consider the argument concerning the third count that the defendant raised at trial because the defendant was acquitted of that charge. Also, we note that should we conclude that the court properly denied the motion for a judgment of acquittal at the close of the state’s case-in-chief, it necessarily follows that the court properly denied the motion at the close of evidence, because the defendant, in the latter motion, merely renewed the arguments he presented in the former.

As to counts one and two, the defendant argued at trial that the state had failed to present evidence indicating that the defendant had intended to deprive Petrucci permanently of the Honda, her purse and its contents.

“The elements of larceny . . . are: (1) the wrongful taking or carrying away of the personal property of another; (2) the existence of a felonious intent in the taker to deprive the owner of it permanently; and (3) the lack of consent of the owner. ... To prove the element of intent within the context of larceny, the state must show that the defendant intended to deprive another person of property permanently. . . . Intent may be inferred by the fact finder from the conduct of the defendant.” (Citations omitted; internal quotation marks omitted.) State v. Kimber, 48 Conn. App. 234, 240, 709 A.2d 570, cert. denied, 245 Conn. 902, 719 A.2d 1164 (1998).

During its case-in-chief, the state called, among others, Bradley, Petrucci, Lima, Lima and Sheffield as witnesses. Bradley testified that the defendant diverted his attention from the other two perpetrators by asking him for his wallet and striking him in the face. Petrucci testified that her purse and its contents were in the Honda at the time that it was taken and that her mother was the owner of the vehicle. Bradley, Petrucci and Lima all testified that the defendant jumped into the Honda moments before it sped off, and they described in detail a high level of coordination among the defendant and the two armed perpetrators. Luna and Sheffield testified that, on the morning following the robbeiy, they had observed the defendant driving the Honda and that, as they approached him, he had attempted to evade capture by driving away and then running away. Sheffield testified also that the interior of the Honda appeared to have been ransacked, and Petrucei testified that her purse and its contents never were recovered. Construing that evidence in the light most favorable to sustaining the verdict, together with the inferences reasonably drawn therefrom, the juiy reasonably could have concluded that the cumulative force of the evidence established beyond a reasonable doubt that the defendant intended to deprive permanently the owner of the Honda as well as the owner of the purse and its contents.

As to count four, the defendant argued at trial that the state had failed to present evidence indicating that Bradley had suffered a physical injury as a result of being struck in the face. “A person is guilty of assault in the third degree in violation of § 53a-61 when he causes ‘physical injury’ to the victim. Physical injury is defined as ‘impairment of physical condition or pain . . . .’ General Statutes § 53a-3 (3); State v. Henderson, 37 Conn. App. 733, 743, 658 A.2d 585, cert. denied, 234 Conn. 912, 660 A.2d 355 (1995).” State v. Jordan, 64 Conn. App. 143, 147, 781 A.2d 310 (2001). During the state’s case-in-chief, Bradley testified that the defendant had punched him on the left side of his face, causing him to fall backward over a railing. Construing that evidence in the light most favorable to sustaining the verdict, together with the inferences reasonably drawn therefrom, the jury reasonably could have concluded that the cumulative force of the evidence established beyond a reasonable doubt that the defendant caused Bradley to suffer a physical injury. See id. (in absence of direct evidence of pain, jury reasonably could have inferred that defendant had caused victim pain when he struck her face, grabbed her shirt, pinned her shoulders to bed, pulled her hair).

Accordingly, we conclude that, as to counts one, two and four, the court properly denied the defendant’s motion for a judgment of acquittal at the close of the state’s case-in-chief. For the reasons we expressed previously in this opinion, we therefore conclude also that the court properly denied, as to those counts, the defendant’s motion for a judgment of acquittal at the close of evidence.

II

Next, the defendant claims that the court improperly permitted the state to amend the substitute information. We disagree.

The following additional procedural history is relevant to our resolution of this claim. On June 27, 2000, after the state had presented its case-in-chief, the state moved to amend count one of the information, in which it had accused the defendant of robbery in the first degree. Count one, at that point, alleged as follows: “[The state] accuses Billy Rodriguez of Robbery in the First Degree and charges that at the City of Bridgeport, Fairfield County, on or about the 29th day of July, 1999, the said Billy Rodriguez stole certain property from one Brandy Petrucci and Jared Sperry, and in the course of the commission of the crime displayed and threatened the use of what he represented by his words or conduct to be a firearm, to wit: a handgun, in violation of Section 53a-134 (a) (4) of the Connecticut General Statutes.”

The state asked the court for permission to amend that count by, inter alia, adding the phrase “he or another participant” after the word “crime.” The state informed the court that it had intended to conform count one to the text of § 53a-134 (a) (4) and that the omission of that phrase was a typographical error.

The defendant objected to the state’s motion, arguing that if it were granted, a substantive change would result. The defendant emphasized that the state already had rested and further argued that “[allowing them to conform their information or that count of the information at this point to the evidence in their case is prejudicial to my client.”

The court granted the state’s motion on the basis of the following reasons: (1) the state’s explanation that the omission was a typographical error was credible; (2) good cause for the amendment had been demonstrated; (3) if the amendment was permitted, the defendant would not stand accused of a different crime; and (4) the defendant did not advance an argument in support of his bare assertion that he would be prejudiced if the amendment was permitted.

The state amended count one of the substitute information accordingly. Amended count one provided: “[The state] accuses Billy Rodriguez of Robbery in the First Degree and charges that at the City of Bridgeport, Fairfield County, on or about the 29th day of July, 1999, the said Billy Rodriguez stole certain property from one Brandy Petrucci, and in the course of the commission of the crime he or another participant displayed and threatened the use of what he represented by his words or conduct to be a firearm, to wit: a handgun, in violation of Section 53a-134 (a) (4) of the Connecticut General Statutes.” (Emphasis added.)

On appeal, the defendant claims the court improperly concluded that (1) the amendment did not charge a different crime and (2) the amendment did not prejudice him. Additionally, the defendant alleges that the omission actually was not the result of a typographical error. Instead, he argues, the state provided that excuse to veil its otherwise improper attempt to conform its information to the evidence that it had presented. Therefore, he claims, the court improperly concluded that the state had demonstrated good cause for the amendment.

We now set forth the rule of practice that guides our analysis of the defendant’s claims. Practice Book § 36-18 provides: “After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. An amendment may charge an additional or different offense with the express consent of the defendant.” (Emphasis added.)

Before addressing whether the amendment charged a different offense or whether it prejudiced the defendant, we first focus on the defendant’s claim concerning good cause. We acknowledge that “[a]ttomeys are officers of the court, and when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath.” (Internal quotation marks omitted.) State v. Webb, 238 Conn. 389, 420, 680 A.2d 147 (1996). Accordingly, we decline to disturb the court’s decision to credit the state’s assertion that the omission was a typographical error and, therefore, reject the defendant’s claim that the court improperly concluded that the state had shown good cause for the amendment. See State v. Nguyen, 253 Conn. 639, 657, 756 A.2d 833 (2000) (in determining whether sequestration order was violated, trial court was entitled to credit defense counsel’s assertions and was not required to conduct evidentiary hearing). We now set forth the test for determining whether an amended information charges a different offense.

“Practice Book § 624 [now § 36-18] is primarily a notice provision. Its purpose is to ensure that the defendant has adequate notice of the charges against which he must defend.” State v. Tanzella, 226 Conn. 601, 608, 628 A.2d 973 (1993). Consequently, we do not determine whether offenses are different or additional by comparing the elements of the respective offenses as we do when we consider certain claims concerning double jeopardy. See id. Instead, “the decisive question is whether the defendant was informed of the charges with sufficient precision to be able to prepare an adequate defense.” Id.

Furthermore, our Supreme Court’s decision in State v. Wallace, 181 Conn. 237, 435 A.2d 20 (1980), is especially insightful. “In Wallace, the defendant was charged with the crime of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2). Just before the state completed its case-in-chief, the trial court permitted the state to amend the information by deleting subsection (a) (2) of § 53a-134 and substituting in its place subsection (a) (4). . . . The jury subsequently found the defendant guilty of the crime charged in the amended information.

“Under the subsection originally charged in Wallace, § 53a-134 (a) (2), a person is guilty of robbery in the first degree if he ‘is armed with a deadly weapon.’ Under the amended charge, subsection (a) (4), a person is guilty of robbery in the first degree if he ‘displays or threatens the use of what he represents by his words or conduct to be a . . . firearm . . . .’ The amended charge differed from the original charge in two factual respects.

“First, the original charge differed from the amended charge regarding the item that the defendant must have had on his person to be found guilty of the offense. The original subsection referred to a deadly weapon. The amended subsection, however, referred to anything that the defendant represented to be a firearm, even if it were not capable of actually firing a shot. Thus, the amended charge required the state to prove the presence of an item different from that referred to in the original charge. Second, the original and amended charges differed with respect to the actions they proscribed. Under the original subsection, the defendant needed only to be armed with a deadly weapon to be found guilty. He need not have displayed or threatened to use the weapon. The amended subsection, however, only pertained to one who actually displayed or threatened to use the item involved. Thus, the amended charge required the state to prove different conduct from the original charge.

“Nevertheless, [our Supreme Court] concluded in Wallace that the amended information did not charge a different or additional offense. Both the original and the amended informations charged the defendant with the crime of robbery in the first degree. [Our Supreme Court] concluded that the amended charge was the same as the original charge for purposes of Practice Book § 624 [now § 36-18].” (Citation omitted.) State v. Tanzella, supra, 226 Conn. 609-10.

In the present case, the challenged amendment to count one merely incorporated additional language from § 53a-134 (a), which provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime . . . (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .” (Emphasis added.) In light of Wallace, we conclude that the amended information did not charge a different crime. It instead charged an alternative means of committing the same crime, namely, robbery in the first degree. Consequently, we conclude that the substitute information provided adequate notice of the alternative means of committing robbery in the first degree alleged in the amended substitute information.

Having determined that the amendments to the information did not charge additional or different offenses, we now consider whether the amendment prejudiced the defendant’s substantive rights. See id., 614.

“If the state seeks to amend charges after the commencement of trial, it shoulders the burden of establishing that ‘no substantive rights of the defendant would be prejudiced.’ Practice Book § 624 [now § 36-18], . . . This allocation of burden encourages the state to prepare its case carefully because it bears the burden of justifying subsequent adjustments.” State v. Tanzella, supra, 226 Conn. 614-15. “Moreover, an amendment to an information does not necessarily prejudice a defendant’s substantive rights within the meaning of Practice Book § 624 [now § 36-18] simply because the defendant may have evidence available to contradict a factual allegation of the original charge, and, as a result of the amendment, he no longer faces that particular factual allegation.” State v. Tanzella, supra, 615 n.15.

In the present case, the defendant asserted, as an alibi, that he had been elsewhere at the time of the events claimed by the state. He did not also contend, however, that no robbery had occurred in or near Shelton Park on the night of July 29, 1999. We conclude that the challenged amendment did not reduce the efficacy of the defense that was presented because that amendment, which solely concerned the means of committing the robbery, was unrelated to the issue of whether the defendant was present at Shelton Park at the time of the robbery. See State v. Wallace, supra, 181 Conn. 239. Moreover, nothing in the record indicates that the defendant either would have employed a different defense if the amended offense had been alleged at the outset or suffered any unfair surprise that deprived him of a substantive right. Finally, the challenged amendment also did not even alter the allegation concerning the defendant’s mental state at the time of the crime. See State v. McCalpine, supra, 190 Conn. 831 n.7 (§ 53a-134 “imposes vicarious liability on a defendant when he commits a robbery with another person who, although unbeknownst to him, is armed with a deadly weapon”). For those reasons, we conclude that the amendment did not prejudice the defendant’s substantive rights. The court properly permitted the state to amend the substitute information.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. ...”

       General Statutes § 53a-125b (a) provides: “A person is guilty of larceny in the sixth degree when he commits larceny as defined in section 53a-119 and the value of the property or service is two hundred fifty dollars or less.”

       General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”

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

       The fifth amendment to the United States constitution provides in relevant part: “No person shall ... be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law . . . .”

       The constitution of Connecticut, article first, § 8, provides in relevant part: “No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law . . . .”

       In State v. Rutan, supra, 194 Conn. 444, our Supreme Court stated that “in an appropriate case, we may well conclude that the denial of a defendant’s motion for acquittal at the close of the state’s case may be assignable as error on appeal from a conviction, whether or not the defendant has introduced evidence in his or her own behalf.”

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

       The defendant, on appeal, claims also that the state failed to prove that he had the mental state necessary to have been convicted properly as an accessory to the robbery and the larceny charged in counts one and two, respectively. A review of the record discloses that this claim is unpreserved and that the defendant was charged as a principal in both counts. We nonetheless acknowledge that a defendant can be convicted properly as a principal under § 53a-134 (a) (4) in instances where a participant in a robbery, other than the defendant, displays or threatens the use of what was portrayed, either by words or conduct, as a firearm. See State v. McCalpine, 190 Conn. 822, 831 n.7, 463 A.2d 545 (1983) (§ 53a-134 “imposes vicarious liability on a defendant when he commits a robbeiy with another person who, although unbeknownst to him, is armed with a deadly weapon”).

       General Statutes § 53a-3 (3) provides: “ ‘Physical injury’ means impairment of physical condition or pain . . . .”


author: MIHALAKOS, J.

text:
    KRISTINE PINCHBECK v. PLANNING AND ZONING COMMISSION OF THE TOWN OF GUILFORD ET AL.
    (AC 21015)
    Landau, Mihalakos and Dranginis, Js.

      Argued June 11, 2001
    officially released May 21, 2002

      Thomas E. Crosby, for the appellant (plaintiff).

      Charles R. Andres, for the appellee (named defendant).

      Marjorie Shansky, for the appellees (defendant Gary Friedlaender et al.).
   Opinion

MIHALAKOS, J.

The plaintiff, Kristine Pinchbeck, appeals from the trial court’s judgment affirming the action of the defendant planning and zoning commission of the town of Guilford (commission) and dismissing her appeal. The dispositive issue on appeal is whether the commission properly decided that the second coastal area management (CAM II) site plan application that was submitted by the defendants Gary Friedlaender and Linda Friedlaender merely was a revision of their earlier application (CAM I), and, therefore, not subject to de novo review. We conclude that the commission should have considered CAM II as a new application and afforded it de novo review. Accordingly, we reverse the judgment of the trial court.

The following facts and procedural history are necessary to our resolution of this appeal. The Friedlaenders, who own real property abutting that of the plaintiff, submitted CAM I to the commission, seeking to add two stories to their single-family residence. The commission approved CAM I, and the plaintiff appealed from that decision to the Superior Court. The court rendered judgment dismissing the plaintiffs appeal. On October 9, 1997, prior to the court’s decision, the Guilford engineering department rescinded its original approval of the Friedlaenders’ septic system. In response, the Friedlaenders submitted a revised application, CAM II, to the commission on August 28, 1998. On October 7, 1998, the commission conducted a public hearing on CAM II. Following the hearing, the commission voted on a proposed motion for approval of CAM II. The result was a three to three tie, with one member abstaining.

Following the vote, there was confusion among the commission members concerning the significance of a tie. The confusion stemmed from the advice of the Guilford town planner (planner). The planner advised the commission (1) that it should make findings as to why CAM II was denied, (2) that a tie vote was a parliamentary rebuttal, (3) that failure to act may constitute approval at the time the “statutes [ran] out,” (4) that “we haven’t approved it, but we haven’t denied it,” and (5) that it should table the matter. A vote was then taken to table CAM II to the November 4, 1998 meeting. At the November 4,1998 meeting, the commission voted on another motion to approve CAM II resulting in a vote of five to two and approving CAM II. The plaintiff filed a separate appeal to the Superior Court from that decision also. The court dismissed the plaintiffs appeal, and this appeal followed. Additional facts and procedural history will be discussed as necessary.

“The power of the commission to require that the plaintiff file a coastal site plan and impose conditions on its approval is derived from the Coastal Management Act (act), General Statutes §§ 22a-90 through 22a-112. The act delegates the administration of the state-wide policy of planned coastal development to local agencies charged with responsibility for zoning and planning decisions. See General Statutes §§ 22a-105,22a-106. The act envisages a single review process, during which proposals for development within the coastal boundary will simultaneously be reviewed for compliance with local zoning requirements and for consistency with the policies of planned coastal management.” (Internal quotation marks omitted.) DeBeradinis v. Zoning Commission, 228 Conn. 187, 195-96, 635 A.2d 1220 (1994).

“With respect to review of a coastal site plan, [proceedings before planning and zoning commissions are classified as administrative.” (Internal quotation marks omitted.) Id., 198-99. “The court’s function was to determine on the basis of the record whether substantial evidence has been presented to the [commission] to support its findings. . . . Furthermore, a reviewing court cannot substitute its judgment as to the weight of the evidence before the commission and on factual issues material to the reasons for the commission’s decision because it is within the province of the commission to determine the credibility of witnesses. . . . Not only is a reviewing court prohibited from substituting its judgment for that of the commission, but the decision of the commission must be sustained if an examination of the record discloses evidence that supports any one of the commission’s reasons. . . . The question is not whether the trial court would have reached the same conclusion but whether the record before the [commission] supports the decision reached.” (Citations omitted; internal quotation marks omitted.) Pelliccione v. Planning & Zoning Commission, 64 Conn. App. 320, 332-33, 780 A.2d 185, cert. denied, 258 Corm. 915, 782 A.2d 1245 (2001).

The plaintiff claims that the court improperly upheld the commission’s approval of CAM II without first requiring the commission to determine whether a change in circumstances had occurred between the CAM I proposal and CAM II, which would have required a de novo review of the CAM II proposal. The specific question raised in this case is whether the commission properly decided that a CAM proposal revised to comply with state health codes was within the scope of the previous CAM application, which had been granted. We conclude that CAM II was a new application and subject to de novo review by the commission.

“It is well established that an appellate court will not retiy the facts. Our review is to determine whether the judgment of the trial court was clearly erroneous or contrary to the law. . . . When . . . the trial court draws conclusions of law, [the scope of our appellate] review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Citation omitted; internal quotation marks omitted.) Gangemi v. Zoning Board of Appeals, 54 Conn. App. 559, 563-64, 736 A.2d 167 (1999), rev’d on other grounds, 255 Conn. 143, 763 A.2d 1011 (2001).

In the present case, the court concluded that “the commission did not erroneously construe CAM II as a modification rather than as a new application, and . . . the record demonstrates that the commission thoroughly reviewed the revised aspects of the application with respect to its impact on coastal resources.” In addition, the court found that the Friedlaenders had “submitted CAM II because Guilford’s engineering department informed them by letter that the prior approval of the septic system had been sent in error.” The court also reviewed a revised coastal area management report that was prepared for the Friedlaenders. The report noted that after the commission approved the former project, “technical modifications to the proposed wastewater disposal system design were mandated by the state of Connecticut department of health.”

“A subsequent application made in order to bring a prior application into compliance with applicable regulations, no matter how minor the work involved may be, is clearly not minor in regard to its significance and effect.” (Internal quotation marks omitted.) Koepke v. Zoning Board of Appeals, 230 Conn. 452, 458, 645 A.2d 983 (1994). Thus, the court improperly concluded that the commission had properly treated CAM II as a revision of CAM I.

Because the revisions reflected in CAM II were made for the purpose of regulatory compliance, CAM II was a new application and the commission was required to begin the review process of the application anew. Therefore, the court improperly upheld the commission’s conclusion that CAM II was merely a revision.

The judgment is reversed and the case is remanded with direction to remand the case to the commission to review CAM II as a new application, after proper notice and hearing, de novo.

In this opinion the other judges concurred.

       Because the plaintiff, Kristine Pinchbeck, died duiing the pendency of this appeal, William Pinchbeck, her husband and executor of her estate, was substituted as the plaintiff with this court’s permission.

       The plaintiffs remaining claims on appeal are that the court improperly upheld the commission’s approval of the Friedlaenders’ CAM II application (1) when the commission voted twice on the CAM II proposal in violation of H. Robert, Rules of Order (9th Ed. 1990) § 36, (2) when the commission failed to determine whether its second motion to approve CAM II was substantially different from its first motion to approve CAM II, (3) when the commission’s approval of CAM II violated §§ 273-4 and 273-91 of the Guilford zoning regulations, and General Statutes §§ 22a-105, 22a-106, 22a-106a, 22a-107, 22a-108 and 22a-109, (4) when neither of the Friedlaenders supplied the plaintiff with a copy of the CAM II proposal prior to the public hearing before the commission and (5) without finding that members of the commission were biased against the plaintiff at the initial public hearing on the CAM II application. Because we conclude that the plaintiffs first claim on appeal is dispositive, we need not address the remaining issues.

       When the Guilford engineering department rescinded its approval of the Friedlaenders’ septic system, the commission’s approval of CAM I became void. See Gagnon v. Planning Commission, 24 Conn. App. 413, 588 A.2d 1385 (1991) (concluding approval of revised site plan controlled rights to develop parcel of land), affd, 222 Conn. 294, 608 A.2d 1181 (1992). At the time of this appeal, the plaintiffs appeal relative to CAM I still was pending in Superior Court. See Pinchbeck v. Dept, of Public Health, 65 Conn. App. 201, 782 A.2d 242, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001). For those reasons, the plaintiffs appeal relative to CAM I now is moot.

       The court found that the plaintiff was an abutting landowner and that she was, therefore, statutorily aggrieved. None of the parties disputed the court’s finding of aggrievement.


author: SCHALLER, J.

text:
    FLORENCE KRONDES ET AL. v. WILLIAM O’BOY, SR., ET AL.
    (AC 19292)
    Schaller, Spear and Daly, Js.

      Argued May 9, 2001
    officially released May 21, 2002

      IrveJ. Goldman, for the appellants-appellees (named defendant et al.).

      Ridgely W. Brown, for the appellees-appellants (plaintiffs).
   Opinion

SCHALLER, J.

The defendants William O’Boy, Sr., and his wife, Carmela B. O’Boy, appeal, and the plaintiff Florence Krondes cross appeals from the judgment of the trial court, rendered after a jury trial, awarding damages to the plaintiff. On appeal, the defendants argue that the court improperly refused to set aside the verdict because the automatic stay pursuant to 11 U.S. C. § 362 voided any trial court action between the filing for bankruptcy and the bankruptcy discharge. The dis-positive issue on appeal is whether the stay operated to void actions taken by, and the judgment of, the trial court. We reverse the judgment of the trial court and remand the case for a new trial.

The following facts and procedural history provide the necessary background to the disposition of these appeals. On May 14, 1993, Florence Krondes received an award of $259,896 against William O’Boy, Sr., and William O’Boy, Jr., for breach of contract. See Krondes v. O’Boy, 37 Conn. App. 430, 656 A.2d 692 (1995). On December 15, 1993, the plaintiff filed a complaint seeking to set aside a fraudulent transfer by William O’Boy, Sr., to Carmela O’Boy of property at 10 First Street, Norwalk. William O’Boy, Sr., owned a one-half interest in the subject property until he transferred that interest to his wife by quitclaim deed dated December 5, 1990, for the consideration of “love and affection.” The three count complaint alleged fraudulent transfer, violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes 42-110a et seq., and violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq.

On April 4, 1997, William O’Boy, Sr., voluntarily filed for relief under chapter 7 of the United States Bankruptcy Code, 11 U.S.C. § 107 et seq., and filed a notice of stay with the Superior Court on April 7, 1997. The Bankruptcy Court granted William O’Boy, Sr., a discharge by notice dated June 12, 1998. The defendants filed a motion in limine in state court to remove William O’Boy, Sr., as a party defendant, but the court denied the motion.

A number of events transpired between the bankruptcy filing and discharge. On June 30, 1997, the plaintiff issued a notice of deposition of Carmela O’Boy. On August 8, 1997, the plaintiff deposed Carmela O’Boy. The court scheduled pretrial conferences on December 2, 1997, trial for November 25, 1997, and a continuance of trial for June 15, 1998. The jury selection process also took place at that time, and the jury was sworn in on July 7, 1998. The record does not reflect precisely how many jurors were selected prior to William O’Boy, Sr.’s discharge in bankruptcy.

On July 10, 1998, the defendants filed a motion for a directed verdict on all counts. On July 14, 1998, the court denied the motion as to the fraudulent transfer claim, but granted the motion as to the CUTPA and RICO claims. The court did not issue a memorandum of decision on the motion, nor did the plaintiff file a motion for an articulation of the basis for the decision.

On July 14, 1998, the jury found that William O’Boy, Sr., had transferred his one-half interest in the real property at 10 First Street to Carmela O’Boy with intent to hinder, delay or defraud his creditors, including the plaintiff. The jury further found that William O’Boy, Sr., had conveyed the interest without substantial consideration. The jury also found that the plaintiff had established that William O’Boy, Sr., had conveyed his interest in the property with the intent to defraud the plaintiff. The jury awarded economic and punitive damages of $341,314.54 against Carmela O’Boy. The jury awarded no damages against William O’Boy, Sr.

The defendants filed motions to set aside the verdict and for judgment notwithstanding the verdict on the ground that there was insufficient proof that the property transfer rendered William O’Boy, Sr., insolvent and that there was insufficient evidence that Carmela O’Boy had the requisite intent to defraud when William O’Boy, Sr., conveyed the property. The defendants also filed motions for remittitur and to set aside the verdict as excessive, claiming that on April 14, 1997, William O’Boy, Sr., had filed for relief under chapter 7 of the United States Bankruptcy Code and filed a notice of stay dated April 4, 1997, with the Superior Court. William O’Boy, Sr., in the bankruptcy proceeding, had listed the plaintiff as a creditor and included a reference to the verdict against him that was rendered on May 14, 1993, and the Bankruptcy Court granted him a discharge under title 11 of the United States Code, § 727, on June 12, 1998. The trial court denied the motions on January 13, 1999. Additional facts will be set forth as necessary.

Our standard of review for a challenge to a denial of a motion to set aside a verdict is as follows. “The evidence must be considered, along with reasonable inferences, in the light most favorable to the parties who were successful at trial with weight given to the judgments of the judge and jury. . . . The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion. ... A trial court may set aside or direct a verdict on a finding that the verdict is manifestly unjust because the jury, on the basis of the evidence presented, mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case can be applied. . . . While we do not attempt to substitute our judgment for that of the trial judge, we must determine whether the jury award was such that the trial judge could have properly substituted his judgment for that of the jury. ... To determine whether the trial court abused its legal discretion, this court must consider the entire record and all of the evidence.” (Citations omitted; internal quotation marks omitted.) Medcalf v. Washington Heights Condominium Assn., Inc., 57 Conn. App. 12, 15-16, 747 A.2d 532, cert. denied, 253 Conn. 923, 754 A.2d 797 (2000). “A trial court’s ruling to set aside the verdict will not be overturned on appeal unless the trial court abused its discretion.” (Internal quotation marks omitted.) Tolbert v. Connecticut General Life Ins. Co., 58 Conn. App. 694, 698, 755 A.2d 293 (2000), aff'd, 257 Conn. 118, 778 A.2d 1 (2001). “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) Rivera v. St. Francis Hospital & Medical Center, 55 Conn. App. 460, 463-64, 738 A.2d 1151 (1999). “[W]e do not . . . determine whether a conclusion different from the one reached could have been reached.” (Internal quotation marks omitted.) Davis v. Fracasso, 59 Conn. App. 291, 295, 756 A.2d 325 (2000).

The defendants claim that the court improperly refused to set aside the verdict because a bankruptcy stay voided all trial court action between the filing for bankruptcy and the bankruptcy discharge, and those void actions rendered the jury verdict void as well. We agree.

“In general, we look to the federal courts for guidance in resolving issues of federal law.” Turner v. Frowein, 253 Conn. 312, 340, 752 A.2d955 (2000). “[T]he decisions of the federal circuit in which a state court is located are entitled to great weight in the interpretation of a federal statute.” (Internal quotation marks omitted.) Thomas v. West Haven, 249 Conn. 385, 392, 734 A.2d 535 (1999).

The automatic stay provision in bankruptcy proceedings is governed by 11 U.S.C. § 362. “Section 362 of the Bankruptcy Code stays any and all postpetition filing. Any filing constitutes a judicial act directed toward the disposition of the case in violation of the automatic stay. . . . The stay of section 362 is extremely broad in scope and . . . should apply to almost any type of formal or informal action against the debtor or the [debtor’s] property .... 2 W. Collier, Collier on Bankruptcy (15th Ed. 1979) § 362.04.” (Citation omitted; internal quotation marks omitted.) Citicorp Mortgage, Inc. v. Mehta, 39 Conn. App. 822, 830, 668 A.2d 729 (1995).

The question in this case is whether a fraudulent transfer action against Carmela O’Boy constitutes an action against the debtor, William O’Boy, Sr., or whether the action is, in fact, merely an action against a non-debtor spouse. Generally, the filing of a bankruptcy petition does not stay actions against nondebtors. Burritt Interfinancial Bancorporation v. Wood, 33 Conn. App. 401, 404, 635 A.2d 879 (1994). Nondebtors seeking protection of an automatic stay must move for the extension of the stay in the Bankruptcy Court. Metro Bulletins Corp. v. Soboleski, 30 Conn. App. 493, 497, 620 A.2d 1314, cert. granted on other grounds, 225 Conn. 923, 625 A.2d 823 (1993) (appeal withdrawn June 4, 1993). Carmela O’Boy did not file such a motion in the Bankruptcy Court. If she properly is characterized as a nondebtor, the automatic stay would not preclude actions against her. We conclude, however, that the action was not merely an action against a nondebtor.

The United States Court of Appeals for the Second Circuit has concluded that an action to recover property fraudulently transferred, as is the case with the property held by Carmela O’Boy, is an action “to recover a claim against the debtor”; In re Colonial Realty Co., 980 F.2d 125, 131-32 (2d Cir. 1992); and, therefore, subject to the automatic stay. Id.; but see In re Miller, 262 B.R. 499, 505 (Bankr. 9th Cir. 2001) (discovery pursued against nondebtor permissible even when discovery produces evidence that may later be used against debtor). As such, a “third-party action to recover fraudulently transferred property is properly regarded as undertaken ‘to recover a claim against the debtor’ and subject to the automatic stay pursuant to § 362 (a) (1).” In re Colonial Realty Co., supra, 131-32. Therefore, if the plaintiff opted to pursue the fraudulent transfer claim during the pendency of the bankruptcy proceeding, namely, after William O’Boy, Sr., filed his bankruptcy petition, she was obligated to seek relief from the stay from the Bankruptcy Court. See 11 U.S.C. § 362 (d) through (g). That she did not do.

We note that ministerial acts undertaken in the course of a state judicial proceeding while an automatic stay is in effect do not violate the automatic stay. See Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 527 (2d Cir. 1994); see also In re Soares, 107 F.3d 969, 973-74 (1st Cir. 1997); In re Knightsbridge Development Co., 884 F.2d 145, 148 (4th Cir. 1989). However, “acts undertaken in the course of carrying out the core judicial function are not ministerial and, if essayed after bankruptcy filing, will be deemed to violate the automatic stay.” In re Soares, supra, 974. See, e.g., Citicorp Mortgage, Inc. v. Mehta, supra, 39 Conn. App. 830 (filing motion for deficiency judgment violated automatic stay). The acts of which the defendants now complain, including the notice and deposition of Carmela O’Boy, the scheduling conference and jury selection, are undertaken in “the course of carrying out the core judicial function”; In re Soares, supra, 975; and thus do not constitute ministerial acts. Those actions violated the automatic stay imposed in William O’Boy, Sr.’s bankruptcy proceeding. Any “actions taken in violation of the stay are void and without effect.” (Internal quotation marks omitted.) In re Colonial Realty Co., supra, 980 F.2d 137.

We must consider the defendants’ contention that “[b]ecause the jury’s verdict in the fraudulent conveyance action was premised upon these legally ineffective acts, it is legally ineffective as well.” We agree. See Paine v. Sealy, 956 S.W.2d 803 (Tex. App. 1997) (reversing summary judgment granted on ground that defendant did not answer requests for admissions submitted in violation of bankruptcy stay because requests were void).

The court acknowledged in its memorandum of decision that the actions taken during the automatic stay might be void and further concluded, citing Pavliscak v. Bridgeport Hospital, 48 Conn. App. 580, 590, 711 A.2d 747, cert. denied, 245 Conn. 911, 718 A.2d 17 (1998), that it may determine the impact, if any, that the void actions have on the trial and jury verdict in determining whether to set aside the verdict because “ ‘[t]he decision to set aside the verdict entails the exercise of a broad legal discretion ....’” Although that is a correct partial statement of the standard a trial court employs in ruling on a motion to set aside a verdict, the court applied the standard improperly. The court abused its discretion in denying the motion to set aside the verdict because the court permitted acts taken in furtherance of its core judicial function, yet in violation of the stay, to affect the outcome of the trial.

As previously noted, four actions of the court occurred during the bankruptcy stay. Of those, two are particularly relevant to our discussion of the defendants’ claim. First, the jury selection process began during the stay, and some jurors were selected prior to William O’Boy, Sr.’s bankruptcy discharge. That fact begs the question of how a juror whose selection was void can render a verdict. Second, and moreover, the plaintiffs used Carmela O’Boy’s deposition, taken during the stay, to impeach her at trial. Clearly, her deposition testimony could have caused the jury to find her testimony at trial not credible and, therefore, render a verdict against her.

The defendants especially take issue with the court’s statement in its memorandum of decision, citing Sciola v. Shernow, 22 Conn. App. 351, 360, 577 A.2d 1081, cert. denied, 216 Conn. 815, 580 A.2d 60 (1990), that “[t]he court should not set aside the verdict unless it is sure that it has committed unmistakable error that has caused unquestionable harm.” The defendants assert in their principal brief that by adopting that view, the court improperly ruled that the acts in violation of the stay merely were voidable at its option and that the ruling was “contrary to clear and unmistakable bankruptcy jurisprudence in the Second Circuit and the majority of jurisdictions elsewhere.” We agree. If the acts in question properly are construed as having no legal effect, they could have had no efficacy at trial. Yet, the court concluded that it would determine the extent of its mistake and the harm to the defendants. Finding none, the court denied the motion. That result is contrary to reason, and the court’s denial of the motion to set aside the verdict constitutes an abuse of discretion.

In this case, the verdict is manifestly unjust. The court permitted a trial to continue although acts taken in furtherance of its core judicial function were void in ■violation of the automatic stay, acts that clearly could have affected the outcome of the trial. We conclude that the court abused its discretion in denying the defendants’ motion to set aside the verdict.

On the defendants’ appeal, the judgment is reversed and the case is remanded for a new trial; the plaintiffs cross appeal is dismissed.

In this opinion the other judges concurred.

       Florence Krondes also is a plaintiff in her capacity as executrix of the estate of James Krondes. We refer to her in this opinion, in both her individual capacity and in her capacity as executrix, as the plaintiff.

       The defendants are William O’Boy, Sr., Carmela B. O’Boy and William O'Boy, Jr. William O’Boy, Jr., is not a party to this appeal. We refer in this opinion to William O’Boy, Sr., and Carmela O’Boy as the defendants.

       The defendants also argue that the court improperly refused to set aside the verdict (2) because only the bankruptcy trustee had standing to pursue a fraudulent conveyance claim, (3) because the bankruptcy discharge precluded the plaintiff from continuing with the fraudulent conveyance action in that the plaintiff failed to obtain a prebankruptcy attachment or lien against the property conveyed, (4) because the jury awarded double recovery against Carmela O’Boy for participating in the conveyance by setting aside the conveyance of property to her by William O’Boy, Sr., and also awarding damages, (5) because the jury awarded damages against Carmela O’Boy, as transferee of a fraudulent conveyance, in excess of the value of the property, and the plaintiff did not adduce sufficient evidence to assess the property value, and (6) because the court improperly instructed the jury on consideration of “badges of fraud” and failed to instruct that Carmela O’Boy must have known of or participated in the fraud, and further that the plaintiff failed to present sufficient evidence of Carmela O’Boy’s knowledge of or participation in the fraudulent conveyance.
      On cross appeal, the plaintiff argues that the court improperly (1) limited damages to one half the value of the property, (2) set aside the award of punitive damages against the defendants and (3) dismissed the claim alleging a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. Because our conclusion as to the defendants’ first claim is dispositive of this appeal, we do not address the remaining claims on the appeal and the cross appeal.

       The plaintiff refers to and provides in the appendix to her brief a letter dated September 25, 1998. The letter apparently notified the bankruptcy trustee, Alan D. Sibarium, of the state court proceedings, the lis pendens in effect on the disputed property, and the plaintiffs intent to proceed against Carmela O’Boy and the property in rem rather than against William O’Boy, Sr. The letter was sent after the verdict was returned in the present action and was not a basis for the court’s denial of the motion to set aside the verdict.

       Tide 11 of the United States Code, § 362 (a), provides in relevant part: “[A] petition filed under section 301, 302, or 303 of this title . . . operates as a stay, applicable to all entities, of—
      “(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title;
      “(2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title . . .

       We note that there is disagreement among the federal courts of appeal as to whether actions taken in violation of the automatic stay are “void” or “voidable.” In re Soares, supra, 107 F.3d 976; In re 48th Street Steakhouse, Inc., 835 F.2d 427, 431 (2d Cir. 1987) (actions in violation of stay void), cert. denied sub nom. Rockefeller Group, Inc. v. 48th Street Steakhouse, Inc., 485 U.S. 1035, 108 S. Ct. 1596, 99 L. Ed. 2d 910 (1988). That distinction is of little significance, as any power to validate the acts undertaken in violation of the stay are vested exclusively in the Bankruptcy Court. See 11 U.S.C. § 362 (d); In re Albany Partners, Ltd., 749 F.2d 670, 675 (11th Cir. 1984) (Bankruptcy Courts’ power to “annul” stay includes retroactive validation of acts in violation of stay).