author: LANDAU, J.

text:
    CONNECTICUT NATIONAL BANK v. CHARLES A. MARLAND
    (AC 15908)
    Dupont, C. J., and Landau and Heiman, Js.
    Argued December 16, 1996
    officially released June 3, 1997

      JohnH. Grasso, for the appellant (named defendant).

      Steven M. Basche, with whom, on the brief, was David M. Barry, Jr., for the appellee (substitute plaintiff).
   Opinion

LANDAU, J.

The named defendant, Charles A. Mar-land, appeals from the judgment of strict foreclosure, rendered after a trial to the court. On appeal, the defendant claims that the trial court improperly (1) denied his motion to dismiss, (2) nonsuited the defendant on his counterclaims, (3) found that the plaintiffs successor in interest possessed title to provide standing to enforce the note, and (4) admitted evidence of proof of the debt. We affirm the judgment of the trial court.

On January 6, 1993, Connecticut National Bank (CNB) commenced a foreclosure action against the defendant, seeking to foreclose a mortgage secured by a commercial self-storage facility located in Old Say-brook. At the same time, CNB commenced a separate action against the defendant involving the foreclosure of a separate commercial property.

On February 18, 1994, Cadle Company of Connecticut, Inc. (Cadle), purchased the mortgage and other loan documents executed in connection therewith from Shawmut Bank, N.A., successor in interest to CNB. On March 17, 1994, the action was dismissed pursuant to Practice Book § 251. On July 13, 1994, Cadle filed a motion to open the § 251 dismissal and motions to substitute itself as the party plaintiff and to amend the complaint. The trial court granted Cadle’s motion to open on August 15, 1994, and also granted its motion to substitute on August 16, 1994.

On September 23, 1994, Cadle requested that the defendant revise his special defenses and counterclaims. The defendant failed to comply, and on December 21, 1994, Cadle moved for default, and the trial court granted its motion on January 17, 1995.

After Cadle’s motion for default against the defendant was granted, Cadle pursued the action against Susan Marland, which was scheduled for trial on October 3, 1995. On that date, the defendant filed a motion to dismiss, a motion to strike from the trial list and, in addition, filed proposed counterclaims. The defendant also filed on October 20, 1995, a motion to set aside the default entered against him on January 17, 1995. The trial court denied those motions on October 25, 1995. Cadle amended its complaint on October 27,1995, to reflect the interest of Susan Marland. Subsequently, she responded to Cadle’s demand for defenses by filing an answer and four special defenses that essentially involved claims of laches and bad faith. Cadle denied these special defenses.

Following the trial in December, 1995, the trial court rendered judgment of strict foreclosure against Charles A. Marland and Susan Marland. The trial court found the fair market value of the property to be $561,000 and exercised its equitable discretion to limit the debt to $534,803.56, the principal balance due on the loan at the time Cadle acquired this note and mortgage. This appeal followed.

I

The defendant first argues that the trial court improperly denied his motion to dismiss. He asserts that the trial court lacked jurisdiction to open the judgment because the motion was not timely filed, that Cadle was not a party to the action when it filed its motion to open, and that the substitution of Cadle as the sole party plaintiff was improper because the judgment of dismissal had not been opened. We address these arguments in turn.

Practice Book § 326 provides in part that “any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months of the entry of judgment.” (Emphasis added.) See also General Statutes § 52-212a. Notwithstanding a few exceptions not applicable to this case, it is well recognized that where a motion to open a judgment is filed more than four months from the date of the judgment, the trial court lacks jurisdiction to open the judgment. Citicorp Mortgage, Inc. v. Tarro, 37 Conn. App. 56, 59, 654 A.2d 1238 (1995). Here, the trial court dismissed the action, pursuant to Practice Book § 251, on March 17, 1994. Cadle filed a motion to open the § 251 dismissal on July 13, 1994, which was granted on August 15, 1994. Therefore, the trial court had jurisdiction to open the judgment because the plaintiff filed the motion to open within four months following the date of judgment.

The defendant next argues that Cadle was not a party to the action at the time it filed its motion to open. In Federal Deposit Ins. Corp. v. Retirement Management Group, Inc., 31 Conn. App. 80, 623 A.2d 517, cert. denied, 226 Conn. 908, 625 A.2d 1378 (1993), we addressed an analogous situation involving the filing of a motion for a deficiency judgment. In that case, the trial court rendered judgment of strict foreclosure in favor of the Federal Deposit Insurance Corporation (FDIC), the receiver for the Connecticut Bank and Trust Company, N. A. Subsequently, the FDIC filed a motion to substitute the New Connecticut Bank and Trust Company, N.A. (New CBT), the assignee of FDIC, as the plaintiff. Prior to the trial court’s ruling on the FDIC’s motion to substitute, the New CBT filed a motion for deficiency judgment. The defendants argued that because a motion for a deficiency judgment was filed by the New CBT prior to its becoming a party to the proceedings, no party to the proceedings had sought a deficiency judgment within the allotted thirty days and, therefore, the trial court lacked authority to grant a deficiency judgment in that action. We concluded that “an amendment substituting a new plaintiff [will] relate back if the added plaintiff is the real party in interest.” Id., 85, quoting 6A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1501, pp. 154-57.

Here, Cadle’s motion to substitute itself as party plaintiff was filed simultaneously with its motion to open the § 251 dismissal. We conclude that the motion to substitute, granted on August 16, 1994, related back in time to affect the July 13, 1994 motion to open and that Cadle, at the time of filing its motion to open and motion to substitute, was a real party in interest. As a result, the motion to open is deemed to have been properly and timely filed by Cadle. See Federal Deposit Ins. Corp. v. Retirement Management Group, Inc., supra, 31 Conn. App. 85.

II

The defendant next claims that the trial court improperly rendered judgment of nonsuit against him on his counterclaims and barred him from filing any responsive pleadings as to Cadle’s second amended complaint filed October 27, 1995. He argues that the pleadings remained open due to Cadle’s failure to move for a nonsuit on his counterclaims. Cadle argues that it is evident from its motion for default that it sought to preclude the defendant from proceeding further on both his special defenses and counterclaims. We agree.

On December 21, 1994, Cadle filed a motion for default against the defendant for his failure to comply with Cadle’s request to revise the defendant’s special defenses and counterclaims. The trial court granted Cadle’s motion for default on January 17,1995. On October 3, 1995, the defendant filed a motion to strike the case from the trial list, arguing that the pleadings were not closed because Cadle had failed to respond to his counterclaims. At a hearing on October 25, 1995, the trial court denied the defendant’s motion to strike the case from the trial list and, in turn, rejected his claim that the pleadings remained open. We conclude that it is implicit in Cadle’s motion for default that it sought to default the defendant on his special defenses and to nonsuit him on his counterclaims. To conclude otherwise would be to elevate form over substance. Whalen v. Ives, 37 Conn. App. 7, 15-17, 654 A.2d 798, cert. denied, 233 Conn. 905, 657 A.2d 645 (1995).

Ill

The defendant next argues that the trial court improperly found that Cadle possessed title to provide standing to enforce the note. The defendant argues that due to technical defects in the chain of title to the mortgage, Cadle does not have good title to the mortgage. Cadle contends that the technical defects are not fatal because there is sufficient information in the land records to establish the chain of title from the original mortgagee to Cadle. We agree with Cadle.

On January 6,1993, CNB commenced this foreclosure action against the defendant. On January 13, 1993, Shawmut Bank Connecticut, N.A. (Shawmut), filed a certificate of name change dated January 11,1993, indicating that CNB had changed its corporate name to Shawmut. On January 27, 1993, Shawmut assigned its interest in the mortgage and the note to GTT Corporation, as trustee of Onyx Properties Realty Trust (GTT). On February 18, 1994, GTT assigned its interest in the mortgage and the note to Cadle. On the same day, Cadle, pursuant to an agreement with Shawmut for the purchase and sale of notes and loan documents, purchased a package of notes and loan documents, which included any remaining interest Shawmut may have had in the two Marland loans.

The trial court, after reviewing the chain of title set forth above, found that Cadle is the owner and holder of the note evidencing the debt and the mortgage securing the debt and, thus, has the appropriate standing to proceed with this action. “Under familiar principles of appellate review, a trial court’s factual finding will not be reversed or modified unless it is clearly erroneous in view of the evidence and pleadings in the whole record. Practice Book § 4061 . . . .” (Citations omitted; internal quotation marks omitted.) Capital Consulting Group, Ltd. v. Rochman, 218 Conn. 396, 401, 589 A.2d 877 (1991), quoting DiBella v. Widlitz, 207 Conn. 194, 198, 541 A.2d 91 (1988). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. In applying the clearly erroneous standard to the findings of a trial court, we keep constantly in mind that our function is not to decide factual issues de novo.” (Internal quotation marks omitted.) Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985). On the basis of our review of the record, we conclude that the trial court’s finding that Cadle is the owner and holder of the note and mortgage is not clearly erroneous.

IV

The defendant finally claims that the trial court improperly admitted an agreement for purchase and sale of notes and loan documents (agreement), and, in particular, schedule A, which described the notes, and the testimony of James T. Hoffman, vice president of Cadle, and Douglas Mañero, an employee of Shawmut who coordinates the bulk sale of notes, as proof of the debt. Cadle argues that schedule A of the agreement is a document used in Shawmut’s ordinary course of business and, therefore, it is trustworthy.

It is well established that a “trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Citations omitted; internal quotation marks omitted.) New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 752, 680 A.2d 301 (1996).

The trial court admitted evidence of the amount of the debt over the defendant’s objection that Cadle had not qualified it as a business record under the business records exception to the hearsay rule. General Statutes § 52-180. Section “52-180 permits hearsay evidence to be admitted if (1) this writing was made in the regular course of business, (2) it was the regular course of the business to make such a writing, and (3) the writing was made at the time of the transaction or occurrence or within a reasonable time thereof. State v. Scott, 31 Conn. App. 660, 665, 626 A.2d 817 (1993). To qualify a document as a business record, the party offering it must present a witness who testifies that these three requirements have been met. State v. Lawler, 30 Conn. App. 827, 831-32, 622 A.2d 1040 (1993). The trial court has discretion to determine whether the statute is satisfied and appellate courts must construe the statute liberally when reviewing abuse of discretion. State v. Scott, supra; State v. Lawler, supra.” Connecticut Bank & Trust Co., N.A. v. Reckert, 33 Conn. App. 702, 709-10, 638 A.2d 44 (1994).

All three of the criteria enumerated in § 52-180 have been satisfied in this case. Mañero testified that it was in the normal course of business for Shawmut to package loans for sale and for the in-house legal department to prepare agreements for the purchase and sale of notes and loan documents, including relevant schedules attached thereto. Mañero further testified that he had personal knowledge of the contents of schedule A because he obtained the information from Shawmut’s commercial loan system for approximately two thirds of the loans in that package, including the two Marland loans. Mañero also testified that the agreement was prepared at the time of the loan sale. Finally, Nick Madinsky, a financial information systems specialist with Shawmut, testified as to the accuracy of Shawmut’s computer records. We conclude that the trial court properly admitted the agreement and Manero’s testimony concerning the amount of the outstanding debt.

The judgment is affirmed and the case is remanded for the purpose of setting new law days

In this opinion the other judges concurred.

       Shortly after the plaintiff, Connecticut National Bank, filed this action against the defendant, Charles A. Marland, Charles A. Marland quitclaimed his interest in the property to his wife, Susan Marland. On February 22, 1993, the trial court granted Susan Marland’s motion to be made a party defendant. Susan Marland is not, however, a party to this appeal. We refer in this opinion to Charles Marland as the defendant.

       Practice Book § 251 provides in pertinent part: “If a party shall fail to prosecute an action with reasonable diligence, the court may, after hearing, on motion by any party to the action pursuant to Sec. 196, or on its own motion, render a judgment dismissing the action with costs. . . .”

       In June, 1995, both cases, docket numbers CV95-0249405 and CV950249406, were transferred to the Judicial District of New Haven at Meriden. During trial, the court decided to resolve CV95-0249405 and reserve decision on CV95-0249406. This appeal is taken from the judgment in CV95-0249405.

       See footnote 1.

       The defendant also argues, relying on Joblin v. Labow, 33 Conn. App. 365, 367, 635 A.2d 874 (1993), cert. denied, 229 Conn. 912, 642 A.2d 1207 (1994), that the trial court improperly substituted Cadle as the party plaintiff without first opening the judgment. Because of our conclusion that Cadle’s motion to open was timely filed by a proper party, this claim is moot.

       Cadle’s motion for default for failure to comply with Practice Book § 147 provides: “Pursuant to P.B. § 363, The Plaintiff, The Cadle Company of Connecticut, Inc., hereby moves that a default be entered against the defendant, Charles A. Marland, for his failure to file a revised special defense and counterclaim as required under P.B. § 147 within the period specified in P.B. § 149. In support thereof, the plaintiff hereby represents as follows:
      “1. On September 23,1994, the plaintiff filed a request to revise defendant’s special defense and counterclaim dated January 26, 1993.
      “2. Defendant has not filed an objection to said request to revise, nor was the request complied with by defendant within thirty days of the date of the filing said request to revise.
      “3. Defendant is therefore in default by reason of failure to comply with P.B. § 149, and a default may be entered pursuant to P.B. § 363.”

       The defendant’s claim that the trial court improperly precluded him from filing any responsive pleadings as to Cadle’s second amended complaint is without merit. The defendant was defaulted from the case. Practice Book § 363. The trial court did, however, permit the defendant the opportunity to file responsive pleadings to the second amended complaint, but limited those pleadings to the amended portions.

       The defendant also argues that due to the claimed improper assignments of the note, that Cadle was never in possession of the note and, therefore, could not enforce the note against the defendant. Cadle maintains, however, that this is an equitable action to foreclose a mortgage, not a legal action on the note, and that the enforceability of the note is only of consequence in a subsequent deficiency motion.
      The issue of whether a mortgagee must have possession of a note in order to bring a foreclosure action on the mortgage was recently addressed by our Supreme Court in New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 680 A.2d 301 (1996). In that case, the court, after stating that an action for foreclosure of a mortgage and on the note are separate and distinct causes of action, concluded that because the plaintiff chose to pursue the equitable action of foreclosure of the mortgage, rather than a legal action on the note, the fact that the plaintiff never possessed the note is not fatal to its foreclosure of the mortgage. Id., 759-60. Because Cadle brought an equitable action to foreclose the mortgage, the issue of possession of the note is of no consequence to this case. As a result, the defendant’s claim lacks merit.

       Because we conclude, on the basis of Manero’s testimony, that the agreement was properly admitted under the business records exception to the hearsay rule, we need not decide whether Hoffman’s testimony was properly admitted by the trial court to establish the amount of the debt. The amount of the debt having already been established, Hoffman’s testimony was merely cumulative.


source: Caselaw Access Project

author: LAVERY, J.

license: Public Domain

text:
    TRACY FISHER v. COMMISSIONER OF CORRECTION
    (AC 14295)
    Foti, Lavery and Landau, Js.
    Argued February 20
    officially released June 3, 1997

      KentDrager, senior assistant public defender, for the appellant (petitioner).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John J. Dropick, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

LAVERY, J.

The petitioner appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly dismissed his claim of ineffective assistance of counsel by incorrectly finding that the petitioner was not prejudiced by his trial counsel’s performance. We affirm the judgment of the habeas court.

The following history of the case is necessary for a resolution of this appeal. The petitioner was convicted, after a jury trial, of murder, conspiracy to commit murder, and assault in the first degree. The petitioner received a total effective sentence of fifty years in the custody of the commissioner of correction.

On the petitioner’s direct appeal, State v. Fisher, 210 Conn. 619, 556 A.2d 596 (1989), our Supreme Court held that the trial court did not improperly admit a written statement that the petitioner had submitted to the police. The petitioner also filed a petition for a new trial on the basis of newly discovered evidence, which was denied by the trial court. This court subsequently affirmed the trial court’s denial of the petition. See Fisher v. State, 33 Conn. App. 122, 634 A.2d 1177 (1993). The petitioner filed a petition for writ of habeas corpus, asserting that he was denied effective assistance of counsel. Following an evidentiary hearing before the habeas court, the court dismissed the petition. This appeal followed.

The following facts are necessary for the disposition of this appeal. Between 8:30 and 9 p.m. on May 12, 1987, the petitioner and Michael Walker approached the backyard of 102-104 Enfield Street from the backyard of 98-100 Enfield Street in Hartford. At that time, Tom Dixon and Barrington Solomon were sitting on the first floor rear porch of a three story multi-family dwelling located at 104 Enfield Street. The petitioner ran from a tree to a fence that separated the backyards and, using some type of automatic or semiautomatic weapon, fired several shots toward the back porch of 102-104 Enfield Street where the two men were sitting. The petitioner then returned to the tree and gave the weapon to Michael Walker. Walker fired several more shots at the back porch of 102-104 Enfield Street with the weapon. As a result of the gunfire, Dixon suffered fatal injuries and Solomon suffered serious physical injuries. The shooting was apparently in retaliation for a previous shooting in which Solomon had allegedly severely wounded Walker’s brother.

The petitioner asserts that the habeas court incorrectly concluded that the petitioner was not prejudiced when his trial counsel failed to call several witnesses and allegedly failed to impeach effectively the testimony of two other witnesses. The petitioner argues that the habeas court should have determined that the evidence that was not presented was sufficient to undermine confidence in the outcome of that trial. Therefore, he claims that there is reasonable probability that the outcome of the trial would have been different, the standard established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), for habeas relief where trial counsel's performance is ineffective. We are unpersuaded.

The petitioner claimed before the habeas court that he was rendered ineffective assistance of counsel due to his counsel’s failure to call Deserene Taylor, Antoinette Taylor and Dionne Smith as witnesses and to conduct an effective impeachment of Regina Tillis and Nadine Collier.

The habeas court heard testimony from both Smith and Deserene Taylor. In addition, Antoinette Taylor’s testimony from Walker’s trial was admitted into evidence. Deserene Taylor testified that she owned 98-100 Enfield Street at the time of the shooting. She also testified that at that time she did not know Smith or Landon Brown. Antoinette Taylor’s testimony revealed that at the time of the shooting she lived with her family on the second floor of 98-100 Enfield Street and did not know either Brown or Smith. Smith testified that at the time of the shooting she lived at 829 Albany Avenue in Hartford, and that she had been to 98-100 Enfield Street only after the shooting.

Donald Gates, a private investigator employed by Walker’s father, also testified at the habeas trial. Gates testified that he taped interviews of Collier and Tillis after the shooting. A transcript of those interviews was admitted into evidence at the habeas trial. During this interview, Collier told Gates that she had observed two “shadows” when she looked out her back window at the time of the shooting. The petitioner also offered the testimony of his trial counsel, William Collins, and attorney Richard Maraño concerning the performance prong of Strickland.

The habeas court evaluated the petitioner’s claim of ineffective assistance of counsel under the proper two-pronged analysis set forth by the United States Supreme Court in Strickland v. Washington, supra, 466 U.S. 668. “Under Strickland, the petitioner must show that (1) defense counsel’s performance was not reasonably competent or within the range of competence expected of attorneys with ordinary training and skill in criminal law; id., 687-88; and (2) but for counsel’s substandard performance, there is a reasonable probability that the result of the proceeding would have been different. Id., 694.” Clarke v. Commissioner of Correction, 43 Conn. App. 374, 385, 682 A.2d 618, cert. granted on other grounds, 239 Conn. 945, 686 A.2d 123 (1996).

The habeas court in its memorandum of decision addressed only the prejudice prong of Strickland, stating: “A habeas court need not address the question of counsel’s performance if it is easier to dispose of an ineffective assistance claim on the grounds of insufficient prejudice. Pelletier v. Warden, 32 Conn. App. 38, 46 [627 A.2d 1363, cert. denied, 227 Conn. 920, 632 A.2d 694] (1993).” After considering the testimony that was not presented, and reviewing the transcript of the petitioner’s trial, the habeas court concluded: “It is axiomatic that the trier of fact may accept some of a witness’ testimony even though it rejects other portions of that testimony as false. . . . [T]he court finds that the jury at that trial was reasonably likely to reach the same verdict even with the additional testimony of the Taylors and Smith. The petitioner has failed to meet his burden of proving that there is a probability sufficient to undermine confidence in that verdict. Bunkley v. Commissioner, 222 Conn. 444, 459 [610 A.2d 598] (1992).”

The habeas court’s determination as to whether the petitioner’s constitutional right to effective assistance of counsel has been violated is subject to plenary review by this court. See Evans v. Commissioner of Correction, 37 Conn. App. 672, 657 A.2d 1115, cert. denied, 234 Conn. 912. 660 A.2d 354 (1995). We thus examine the conclusions of the habeas court in light of the testimony and record before us.

The petitioner contends that the habeas court cited the incorrect Strickland standard regarding prejudice. The trial court twice stated in its memorandum of decision that the petitioner had the “burden of proving by a preponderance of the evidence that there exists a reasonable probability that the outcome of his criminal trial would have been different.” (Emphasis added.)

While the trial court did incorrectly state that the petitioner had to prove prejudice by a preponderance of the evidence, it also applied the correct standard in its memorandum of decision. In Strickland, the United States Supreme Court held that “actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. . . . Even if a defendant shows that particular errors of counsel were unreasonable . . . the defendant must show that they actually had an adverse effect on the defense. It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test .... The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, supra, 466 U.S. 693-94. In the present case, the habeas court correctly cited the standard used by our Supreme Court in Bunkley v. Commissioner of Correction, supra, 222 Conn. 459, which states that, when attempting to prove prejudice, a petitioner’s burden “should be the same: to establish that, based upon the totality of the evidence before the jury and ... as a result of the error of the trial court . . . there is a probability [of a different outcome] sufficient to undermine confidence in the verdict that he seeks to overturn.”

We agree with the habeas court that it may be likely that the evidence that was not presented would have raised some doubts regarding where Brown was positioned at the time of the shooting. Nevertheless, Brown was still able to relate facts about the shooting that were corroborated by other witnesses and that only an eyewitness could have known. These facts include the precise location from which the two bursts of gunfire came, an accurate description of the weapon used, and the escape route taken by the petitioner and Walker. In addition, as discussed in State v. Fisher, supra, 210 Conn. 621, the petitioner gave the Hartford police a statement placing him in the company of Walker near the scene of the crime on the night of the shooting. This statement also indicated that the petitioner was associated with Walker in the distribution of narcotics. We conclude, therefore, that there was sufficient evidence to support the habeas court’s finding concerning the prejudice prong of Strickland.

Thus, on the basis of our review of the habeas transcript and the entire record, we conclude that the habeas court correctly determined that the petitioner failed to sustain his burden of proving that there is a probability of a different outcome sufficient to undermine confidence in the verdict, and that the habeas court properly found that the petitioner was not deprived of his constitutionally mandated right to effective assistance of counsel.

The judgment is affirmed.

In this opinion the other judges concurred.

       Brown had testified at the petitioner's trial that he had witnessed the shootings while he was visiting Smith at 98-100 Enfield Street.

       The performance prong oí Strickland is not currently before this court.

       This location was established by the discovery of empty shells.


author: PER CURIAM.

text:
    RALPH S. COLUCCI ET AL. v. INSURANCE DEPARTMENT OF THE STATE OF CONNECTICUT
    (AC 16510)
    Lavery, Schaller and Cretella, Js.
    Argued April 30
    decision released June 10, 1997

      Jonathan L. Gould, for the appellees (plaintiffs).

      William J. Prensky, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

PER CURIAM.

The record reveals overwhelming evidence that the plaintiffs violated General Statutes §§ 38a-769, 38a-815 and 38a-816 (8), the violation of any one of which would entitle the insurance commissioner to revoke the licenses of the plaintiffs.

The most recent pronouncement concerning judicial review of the penalty imposed by the commissioner is that set forth in Goldberg v. Insurance Dept., 207 Conn. 77, 87, 540 A.2d 365 (1988). There, the court held that the penalty is at the discretion of the commissioner but “such discretion must be exercised within statutory guidelines.”

We conclude that the commissioner acted within such guidelines and that there was no abuse of discretion.

The judgment is affirmed.


author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. DUANE FOSTER
    (AC 15530)
    Dupont, C. J., and Spear and Hennessy, Js.

      Argued February 26
    officially released June 10, 1997

      Pamela S. Nagy, special assistant public defender, for the appellant (defendant).

      Margaret Gafffney Radionovas, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Dennis J. O'Connor, assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of larceny in the third degree in violation of General Statutes §§ 53a-124 and 53a-119 (8), three counts of reckless endangerment in the first degree in violation of § 53a-63 (a), interfering with a peace officer in violation of § 53a-167a, using a motor vehicle without the owner’s permission in violation of § 53a-119b (a) (l), and with being a persistent serious felony offender pursuant to General Statutes § 53a-40 (b) and (g). The defendant claims that (1) the evidence was insufficient to support his conviction of larceny and using a motor vehicle without the owner’s permission, (2) the trial court improperly instructed the jury on larceny in the third degree, (3) his convictions of both larceny in the third degree and using a motor vehicle without the owner’s permission constituted double jeopardy, and (4) the trial court improperly sentenced him as a second offender pursuant to § 53a-119b (a) (1) and (d). We affirm the judgment of conviction.

The jury reasonably could have found the following facts. On September 7, 1993, John Vaicaulis owned a 1985 two-tone gold Dodge 600 bearing vehicle registration plate number JX77 and an Avon products front plate. On that evening, Vaicaulis used the vehicle to drive his wife to an Avon products sales meeting in East Hartford. At approximately 7:30 p.m., as Vaicaulis was seated in the Dodge waiting for his wife, an unidentified man approached the vehicle. Vaicaulis and the man engaged in a conversation, during which time Vaicaulis explained that he was waiting for his wife. Vaicaulis then agreed to drive the man to his destination because it was raining. After they arrived at the destination, the man took the vehicle without Vaicaulis’ permission. Vaicaulis reported the vehicle as stolen to both the police and his insurer, the Metropolitan Insurance Company (Metropolitan). Neither Vaicaulis nor Metropolitan gave permission to anyone to operate the vehicle.

Michele Harrison, the defendant’s girlfriend, first saw the defendant driving a two-tone gold Dodge 600 with license plate number JX77 and an Avon front plate in September, 1993. The defendant explained that he had borrowed the car from an unidentified friend. He further explained that his friend’s wife sold Avon products and he would have the car for two weeks. The defendant remained in possession of the car, however, until November 16, 1993. Between September and mid-November, the defendant and Harrison used the car every day.

On November 16,1993, at approximately 6 p.m., Officer Harold Pu’Sey of the Hartford police department noticed a two-tone Dodge 600 that matched the description of a stolen vehicle. As Pu’Sey was turning east onto Nelson Street, the vehicle was stopped at a stop sign facing west on Nelson Street. The defendant was operating the vehicle and Harrison was a passenger. Upon noticing Pu’Sey, the defendant continually looked in his direction and watched him. Pu’Sey followed the defendant as he traveled down Garden Street and onto Edgewood Street. As he turned onto Edgewood, the defendant pulled up to the curb and turned off the lights. Pu’Sey approached the vehicle and ordered Harrison and the defendant, at gunpoint, to put their hands on the dashboard. The defendant did not comply, and asked Harrison what he had done. Harrison replied that, while he had not done anything wrong, he should comply with Pu’Sey’s order. At that point, the defendant drove off at a high rate of speed. Pu’Sey returned to his cruiser, activated his lights and siren, and pursued the defendant down four streets. During the chase, the defendant drove in excess of fifty-five miles per hour, made evasive maneuvers, crossed the center line, and almost lost control of the vehicle. As the defendant proceeded down a one-way street in the wrong direction, he came within one foot of three children. The defendant proceeded at a high rate of speed until he came to a dead end in Keeney Park. At that point, the defendant told Harrison not to identify him or to converse with the police and fled on foot. Pu’Sey initiated a foot chase and eventually found the defendant hiding behind a porch. Pu’Sey and the defendant engaged in a brief scuffle, and the defendant was arrested.

Later that same day, the defendant initiated a conversation with Detective Peter Getz of the Hartford police department and Detective Gary Ouellette of the East Hartford police department. The defendant claimed that he had leased the Dodge from Mike C. in exchange for a quantity of marijuana. He did not reveal when the lease occurred, Mike C.’s last name, or the street address where the transaction took place.

The relevant procedural history is as follows. The defendant was charged in a two part information. Part B of the information accused the defendant of being a persistent felony offender in violation of § 53a-40 (b) and (g). In addition, prior to trial the state filed a notice of sentence enhancement, which notified the defendant that, if he was convicted of violating § 53a-119b, the state would seek the enhanced penalty provided therein. After the jury rendered a guilty verdict, the defendant pleaded guilty to being a persistent serious felony offender and to having a prior conviction under § 53a-119b. He received a total effective sentence of twenty-three years. This appeal followed.

I

The defendant first claims that the evidence adduced at trial was insufficient to sustain his convictions of larceny in the third degree by receiving a stolen motor vehicle and using a motor vehicle without the owner’s permission. We are unpersuaded.

When reviewing a sufficiency of the evidence claim, our courts apply a two-prong 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.’ ” State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994).

A

The defendant’s first claim is that the state failed to prove what he asserts are the three essential elements of § 53a-l 19 (8): (1) that the defendant knew or believed the vehicle was probably stolen, (2) that he intended to deprive the owner of the car, and (3) that he did not receive, retain or dispose of the property with the purpose to restore it to its owner. We disagree.

Section 53a-119 (8) provides in relevant part: “A person is guilty of larceny by receiving stolen property if he receives, retains, or disposes of stolen property knowing that it has probably been stolen or believing that it has probably been stolen, unless the property is received, retained or disposed of with purpose to restore it to the owner. . . .” The state must prove, beyond a reasonable doubt, the following elements: “(1) that the defendant received, retained or disposed of the [vehicle], (2) that the [vehicle] was stolen and (3) that the defendant knew or believed that the [vehicle] was probably stolen, when he received, retained or disposed of it.” State v. Rivera, 39 Conn. App. 96, 103, 664 A.2d 306, cert. denied, 235 Conn. 921, 665 A.2d 908 (1995). It is the third element that is in dispute here.

“Ordinarily, guilty knowledge can be established only through an inference from other proved facts and circumstances. The inference may be drawn if the circumstances are such that a reasonable man of honest intentions, in the situation of the defendant, would have concluded that the property was stolen. . . . State v. Hobson, 8 Conn. App. 13, 25, 511 A.2d 348, cert. denied, 201 Conn. 808, 515 A.2d 379 (1986), cert. denied, 480 U.S. 917, 107 S. Ct. 1370, 94 L. Ed. 2d 686 (1987).” (Internal quotation marks omitted.) State v. Rivera, supra, 39 Conn App. 104. “Additionally, we note that possession of recently stolen property ‘raises a permissible inference of criminal connection with the property, and if no explanation is forthcoming, the inference of criminal connection may be as a principal in the theft, or as a receiver under the receiving statute, depending upon the other facts and circumstances which may be proven.’ ” State v. Hobson, supra, 8 Conn. App. 25-26, quoting State v. Palkimas, 153 Conn. 555, 559, 219 A.2d 220 (1966).

The defendant asserts that there was insufficient evidence that the defendant knew or believed that the vehicle was stolen because the windows, steering column and ignition were intact and because the original license plate was on the car. Our review of the evidence, however, undertaken in a light most favorable to sustaining the verdict, reveals sufficient evidence that the defendant knew or reasonably believed that the vehicle had probably been stolen. The theft occurred on September 7,1993, and Harrison testified that the defendant first came into possession of the car a short time thereafter. He drove the car every day until he was arrested. In addition, the jury could have inferred consciousness of guilt from the defendant’s inconsistent explanations. He first told Harrison that he borrowed the car from a friend whose wife sold Avon products and that he was to keep the car for a period of only two weeks. He then told the police that he had leased the vehicle from Mike C. in exchange for a quantity of marijuana. Finally, the jury could have considered, on the question of guilty knowledge, the evidence that the defendant drove away at a high rate of speed in a reckless manner after being stopped by Pu’Sey and that he fled on foot after driving into a dead end.

The defendant also claims that the state was required to prove beyond a reasonable doubt that he intended to deprive the owner of the vehicle because the element of specific intent contained in § 53a-119 is incorporated by reference into § 53a-119 (8). We disagree.

Although at common law the state was required to prove that the defendant intended to deprive the true owner of the property; see, e.g., State v. Palkimas, supra, 153 Conn. 558; in 1971, our legislature redefined the offense of larceny by receiving stolen property to eliminate, inter alia, the specific intent requirement. The commission comment to § 53a-119 states that “the actor’s guilty intent is satisfied if he knows or believes that the property ‘has probably been stolen.’ ” Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes (1969). Furthermore, in State v. Perez, 181 Conn. 299, 315, 435 A.2d 334 (1980), our Supreme Court stated that specific intent is not an element of § 53a-119 (8). “It is axiomatic that the legislature may, if it so chooses, ignore the common-law concept that criminal acts require the coupling of the evil-meaning mind with the evil-doing hand and may define crimes which depend on no mental element, but consist only of forbidden acts or omissions. ... If the legislature may define crimes which depend on no mental element, then it certainly may require an element of knowledge but no specific intent. If the statute does not include intent or knowledge as an element of the crime, their proof is not necessary.” (Citations omitted; internal quotation marks omitted.) Id., 315-16; see also State v. Gabriel, 192 Conn. 405, 411-12, 473 A.2d 300 (1984). Accordingly, we conclude that intent to deprive is not an essential element of § 53a-119 (8).

The defendant also argues that the state was required to prove that the property was not “received, retained or disposed of with the purpose to restore it to the owner.” See footnote 1. This claim is without merit.

This court considered and rejected this identical claim in State v. Taft, 25 Conn. App. 149, 153-54, 593 A.2d 973, cert. denied, 220 Conn. 918, 597 A.2d 343 (1991). “ ‘It is generally recognized that the state bears no initial burden of proof on matters personal to the defendant and peculiarly within his own knowledge.’ . . . Whether the defendant received, retained or disposed of the property with the purpose of restoring it to the owner is peculiarly within his personal knowledge. We conclude that [this part] of the statute is not an essential element [of larceny by receiving stolen property].” (Citation omitted.) Id.

B

The defendant next claims that the evidence was insufficient to sustain his conviction for using a motor vehicle without the owner’s permission because (1) Mike C. was an owner within the meaning of the statute and (2) the state failed to prove that he knew that he did not have the owner’s consent. We disagree.

The state presented evidence that Vaicaulis and Metropolitan were the only owners of the vehicle, and that neither gave the defendant permission to use the vehicle. In addition, during the state’s case-in-chief, two police officers testified that, after the defendant was arrested, he claimed that he had leased the vehicle from Mike C. in exchange for marijuana.

The defendant claims on appeal that because Mike C., his lessor, could be an owner within the meaning of § 53a-119b, the evidence was insufficient to sustain his conviction. The jury, however, was not required to accept the defendant’s statement as true. “ ‘[T]he [jury] is free to juxtapose conflicting versions of events and determine which is more credible. ... It is the [jury’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [jury] can . . . decide what—all, none, or some—of a witness’ testimony to accept or reject.’ ” State v. Marsala, 44 Conn. App. 84, 96, 688 A.2d 336, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997). “ We do not sit as a thirteenth juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. . . . Rather, we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.’ ” State v. Adams, 225 Conn. 270, 278, 623 A.2d 42 (1993).

The defendant also claims that the state failed to prove that he knew that he did not have the owner’s permission to operate the car. We are unpersuaded.

The state argues that knowledge is not an element of § 53a-119b and asks this court to reconsider our decision in In re Adalberto S., 27 Conn. App. 49, 53, 604 A.2d 822, cert. denied, 222 Conn. 903, 606 A.2d 1328 (1992). For the purposes of this appeal, we assume, without deciding, that Adalberto requires proof of guilty knowledge on the part of a defendant operator charged with violating § 53a-119b. We conclude that the jury reasonably could have concluded that the defendant knew he did not have Vaicaulis’ or Metropolitan’s consent. If the jury failed to credit the defendant’s statement that he leased the car from Mike C., the evidence that neither owner gave permission to the defendant to use or operate the car was sufficient, in conjunction with the other circumstances, to sustain the defendant’s conviction for operating a motor vehicle without the owner’s permission.

II

The defendant raises three challenges to the court’s instructions on larceny in the third degree. He failed to object to the instructions at trial and seeks review in this court pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

A

The defendant first claims that the trial court improperly failed to charge the jury that the state was required to prove that the defendant intended to deprive the owner of the vehicle. This claim fails under the second prong of Golding and-is subsumed in part I A of this opinion.

B

The defendant next claims that the trial court’s failure to charge the jury that Mike C. could have been an owner within the meaning of § 53a-119 (8) deprived him of his right to present a defense to the charge of receiving stolen property. We will review his claim because the first two prongs of Golding are satisfied. We conclude, however, that the claim is without merit.

“[A] defendant is entitled to have the court present instructions to the jury relating to any theory of the defense for which there is any foundation in the evidence, even if weak or incredible. . . . We must consider the evidence presented at trial in the light most favorable to supporting the defendant’s request to charge.” (Citations omitted.) State v. Adams, supra, 225 Conn. 283.

We have already discussed the essential elements of § 53a-119 (8) in part IA of this opinion. In that discussion, we rejected the defendant’s claim that “intent to deprive the owner of the car” is an element of the crime. Consequently, the court’s failure to charge sua sponte that Mike C. could have been an owner did not prevent the defendant from presenting a defense. The relevant consideration for the jury was whether the defendant knew or believed that the vehicle was probably stolen. Evidence about Mike C. would be relevant only on that issue. Indeed, the defendant’s closing argument on this issue centered around the defendant’s lack of knowledge that the car was stolen. His brief reference to Mike C. was in the context of this issue and his claim that “intent to deprive the owner” was an essential element of the crime. With respect to guilty knowledge, the trial court instructed the jury to consider “all of the circumstances surrounding his receipt or retention of the property in so far as those circumstances have been proven to you.” (Emphasis added.) Consideration of the circumstances surrounding the defendant’s receipt of the car necessarily included his claim concerning Mike C. The jury had every right to reject the claim that the defendant did not have the requisite guilty knowledge because of the alleged lease from Mike C.

The trial court’s failure to instruct the jury, sua sponte, on Mike C.’s possible ownership of the car did not violate the defendant’s right to present a defense or deprive him of a fair trial.

C

The defendant also claims that the trial court improperly instructed the jury that the unexplained possession of stolen property could support an inference that the defendant knew or believed that the vehicle was probably stolen. He claims that review pursuant to Golding is appropriate because the instruction deprived him of his ability to present a defense. We disagree and decline to review his claim.

The defendant concedes that the charge was a correct statement of law. See, e.g., State v. Palkimas, supra, 153 Conn. 558-59. He argues, however, that because he offered an explanation as to his possession of the vehicle, the charge was improper, and the court in effect instructed the jury not to believe his defense. This claim is evidentiary and not of a constitutional nature. The jury was not required to accept the proffered explanation or to draw only those inferences consistent with innocence; rather, it was free to accept or reject evidence and to draw whatever inferences from the evidence it deemed reasonable and logical. See State v. Grant, 219 Conn. 596, 604, 594 A.2d 459 (1991). Furthermore, the trial court clearly instructed the jury that it was not required to draw the inference that the defendant knew or believed that the vehicle was probably stolen. “The court was not required to enumerate all the possible innocent explanations offered by the defendant. The fact that the evidence might support an innocent explanation as well as an inference of [guilty knowledge] does not make an instruction . . . erroneous.” State v. Wright, 198 Conn. 273, 281, 502 A.2d 911 (1986).

Ill

The defendant next claims that his conviction of both larceny in the third degree and using a motor vehicle without the owner’s permission violates double jeopardy in violation of the state and federal constitutions. The defendant seeks Golding review of this unpreserved claim and the state concedes that Golding review is proper. We conclude that the claim is without merit.

A

The federal constitutional prohibition against double jeopardy consists of three guarantees: “(1) ‘It protects against a second prosecution for the same offense after acquittal. [2] It protects against a second prosecution for the same offense after conviction. [3] And it protects against multiple punishments for the same offense.’ ” State v. Lonergan, 213 Conn. 74, 78-79, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990). The defendant’s claim implicates the aspect of double jeopardy analysis that guards against multiple punishments for the same offense in a single trial.

“With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended. . . . The role of the constitutional guarantee [against double jeopardy] is limited to assuring that the court does not exceed its legislative authorization by imposing multipie punishments for the same offense. . . . The issue, though essentially constitutional, becomes one of statutory construction.” (Citations omitted; internal quotation marks omitted.) State v. Greco, 216 Conn. 282, 290, 579 A.2d 84 (1990). “Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” (Internal quotation marks omitted.) State v. John, 210 Conn. 652, 693, 557 A.3d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989). In this case, the state concedes that the charges arose out of the same transaction; the defendant therefore must show only that the two statutes criminalize the same offense.

In making this determination, our courts have traditionally applied the test set out by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). “ ‘[W]here the same act or transaction constitutes a violation of two distinct statutoiy provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.’ ” State v. Nixon, 231 Conn. 545, 550, 651 A.2d 1264 (1995), quoting Blockburger v. United States, supra, 304. “ ‘This test is a technical one and examines only the statutes, charging instruments and bill of particulars as opposed to the evidence presented at trial.’ ” State v. Nixon, supra, 441, quoting State v. Lonergan, supra, 213 Conn. 79.

The defendant argues that using a motor vehicle without the owner’s permission is a lesser included offense of larceny because he could not have committed the latter offense without necessarily having committed the former. “For double jeopardy purposes, a lesser included offense and the greater offense are considered to be one offense. Brown v. Ohio, [432 U.S. 168, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977)]; State v. Goldson, 178 Conn. 422, 425, 423 A.2d 114 (1979). ‘The test for determining whether one violation is a lesser included offense in another violation is whether it is possible to commit the greater offense, in the manner described in the information . . . without having first committed the lesser.’ ” State v. Nixon, supra, 231 Conn. 553. If the charge of larceny by receiving stolen goods does not entail proof of using a motor vehicle without the owner’s permission, then the two offenses are not the same. “ ‘The mere possibility that the State will seek to rely on all of the ingredients necessarily included in the [lesser offense] to establish an element of [the greater offense] would not be sufficient to bar the latter prosecution [on double jeopardy grounds].’ ” Id., 553, quoting Illinois v. Vitale, 447 U.S. 410, 419, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980).

After examining the language of §§ 53a-119 (8) and 53a-119b and the information filed in this case, we conclude that the two offenses are not the same and that using a motor vehicle without the owner’s permission is not a lesser included offense of larceny by receiving stolen property. Section 53a-119 (8) requires proof of receipt or retention of a stolen vehicle, while § 53a-119b requires proof of use or operation of a vehicle without the owner’s permission. It is possible to receive or retain a stolen vehicle without proof that the defendant used or operated the vehicle. Furthermore, § 53a-119 (8) requires proof that the defendant knew or believed that the property was probably stolen, while 53a-119b does not.

Our application of the Blockburger test, however, does not end here. “[T]he Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history. . . . [It] is a rule of statutory construction, and because it serves as a means of discerning [legislative] purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent. ... If the legislature clearly expressed an intention that the statutes were designed to punish the same offense, then prosecution under both statutes would violate the double jeopardy clause.” (Citations omitted.) State v. Nixon, supra, 231 Conn. 555. The defendant has failed to bring to our attention any relevant history to indicate that these two crimes were intended to be punished as one.

We conclude that the defendant’s state and federal constitutional rights against double jeopardy were not violated.

B

The defendant argues that our state constitution encompasses broader protection than the federal constitution and urges this court to adopt the “same evidence” test set forth in State v. Lonergan, supra, 213 Conn. 92. The Lonergan court held that “in successive prosecution cases ‘if the same evidence offered to prove a violation of the offense charged in the first prosecution is the sole evidence offered to prove an element of the offense charged in the second prosecution, then prosecution of the second offense is barred on double jeopardy grounds, regardless of whether either offense requires proof of a fact that the other does not.’ ” Id.

We rejected a similar request in State v. Laws, 37 Conn. App. 276, 290-95, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995) and held that “the implied double jeopardy clause of our own constitution is coextensive with that found in the federal constitution. Our Supreme Court has repeatedly held that, as a general rule, the due process clauses of both the United States and Connecticut constitutions have the same meanings and impose similar limitations. State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982).” (Internal quotation marks omitted.) Id., 294. “Over the last fifty years, [the Blockburger rule] has consistently been applied by Connecticut courts in analyzing double jeopardy claims arising from multiple convictions and punishments imposed in a single trial. . . . Connecticut’s citizens have no realistic expectation that they will have these double jeopardy claims scrutinized by a test that is more protective than the Blockburger test. ” Id., 295. Accordingly, we decline to adopt the same evidence test in a case involving alleged multiple punishments in a single prosecution.

IV

Finally, the defendant claims that he was improperly sentenced as a second offender pursuant to § 53a-119b (a) (1) and (d) because the state did not prove during a part B proceeding that he had a prior conviction. This claim is without merit.

Section 53a-119b (d) provides in relevant part: “Using a motor vehicle . . . without the owner’s permission ... is a class A misdemeanor for a first offense and a class D felony for each subsequent offense.” Our rules of practice and case law provide that where a defendant is exposed to greater punishment according to his status as a subsequent offender, a two part information is required, along with a full judicial proceeding on part B of the information. See, e.g., Practice Book §§ 619 and 840; State v. LaSelva, 163 Conn. 229, 234, 303 A.2d 721 (1972); State v. Ferrone, 96 Conn. 160, 175, 133 A. 452 (1921). “Of course, the accused may plead guilty to [the second] part of the information, and then no further proceedings before or by the jury would be necessary.” State v. Ferrone, supra, 175.

After the jury rendered its guilty verdict, the trial court advised the defendant, at the part B plea proceedings, of the persistent serious felony charge and that he faced an enhanced penalty as a result of his prior conviction of § 53a-119b and the defendant entered a guilty plea. On appeal, he claims that the part B proceeding concerned only the persistent serious felony charge and his guilty plea did not pertain to the enhanced penalty provision of § 53a-119 (d). Prior to accepting the defendant’s guilty plea, the trial court clearly advised the defendant that he was subject to an enhanced sentence as a consequence of his prior conviction. By his plea of guilty, the defendant waived his right to require the state to prove his prior conviction in a judicial proceeding. See State v. Cooper, 38 Conn. App. 661, 669-71, 664 A.2d 773, cert. denied, 235 Conn. 908, 665 A.2d 903 (1995).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-119 (8) provides in relevant part: “A person is guilty of larceny by receiving stolen property if he receives, retains, or disposes of stolen property knowing that it has probably been stolen or believing that it has probably been stolen, unless the property is received, retained or disposed of with purpose to restore it to the owner. . . .”

       General Statutes § 53a-63 (a) provides: “A person is guilty of reckless endangerment in the first degree when, with extreme indifference to human life, he recklessly engages in conduct which creates a risk of serious physical injury to another person.”

       General Statutes § 53a-167a (a) provides: ‘A person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer or fireman in the performance of his duties.”

       General Statutes § 53a-119b (a) provides in relevant part: “A person is guilty of using a motor vehicle without the owner’s permission when: (1) He operates or uses, or causes to be operated or used, any motor vehicle unless he has the consent of the owner . . . .”
      Section 53a-119b (d) provides in relevant part: “Using a motor vehicle . . . without the owner’s permission ... is a class A misdemeanor for a first offense and a class D felony for each subsequent offense.”

       General Statutes § 53a-40 provides in relevant part: “(b) A persistent felony offender is a person who (1) stands convicted of a felony, and (2) has been, prior to the commission of the present felony, convicted of and imprisoned under an imposed term of more than one year or of death, in this state or in any other state or in a federal correctional institution, for a crime. . . .
      “(g) When any person has been found to be a persistent serious felony offender, and the court is of the opinion that his history and character and the nature and circumstances of his criminal conduct indicate that extended incarceration will best serve that public interest, the court in lieu of imposing the sentence of imprisonment authorized by section 53a-35 for the crime of which such person presently stands convicted, or authorized by section 53a-35a if the crime of which such person presently stands convicted was committed on or after July 1,1981, may impose the sentence of imprisonment authorized by said section for the next more serious degree of felony. . . .”

       See footnote 5.

       The notice of penalty enhancement provides as follows: “Pursuant to Connecticut General Statutes §§ 53a-119b (d) and 54-62, the undersigned Senior Assistant State’s Attorney hereby gives notice to the defendant, DUANE ANTHONY FOSTER, of the following:
      “1. That Count Six of the Information in that above-captioned matter is Using A Motor Vehicle Without The Owner’s Permission, Connecticut General Statutes § 53a-119b.
      “2. That on April 11, 1982, in Superior Court, G.A. 14, Hartford, under Docket Number 14-0256414, the Defendant was convicted of the crime of Using a Motor Vehicle Without The Owner’s Permission.
      “3. That in the event the Defendant, DUANE ANTHONY FOSTER, is convicted of Count Six, Using A Motor Vehicle Without The Owner’s Permission, the penalty for that offense would be enhanced from a Class A Misdemeanor to a Class D Felony because of the Defendant’s subsequent offender status pursuant to Connecticut General Statutes § 53a-119b (d).”

       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. . . .”

       The defendant did not present any evidence. He called an expert witness to testify but withdrew the witness immediately after he stated his qualifications.

       General Statutes § 53a-118 (b) provides: “A person who has obtained possession of property by theft or other illegal means shall be deemed to have a right of possession superior to that of a person who takes, obtains or withholds it from him by larcenous means.”

        In re Adalberto involved a defendant who was one of several passengers. We concluded that the evidence was insufficient to convict the defendant, a passenger in a stolen car, where the state proved that the owner of the car did not give permission to the defendant, but the state failed to prove lack of permission to the others in the car. We stated that, where a passenger is charged with using a motor vehicle without the owner’s permission, the state must prove that no one in the car had the owner’s permission to use the vehicle and that the defendant passenger knew of that lack of permission.

       See part IA of this opinion.

       In order to obtain review pursuant to Golding, the defendant must first show that “(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 1he 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." State v. Golding, supra, 213 Conn. 239-40.

       The defendant concedes in his brief that he was not deprived of this defense with respect to the charge of using a motor vehicle without the owner’s permission.

       The court gave the following instruction: “[P]ossession by the defendant of recently stolen property, if unexplained and standing alone, or without other facts pointing to a contrary conclusion, may permit you to draw an inference that the person possessing the property knew or believed that it had probably been stolen. This inference is not a necessary one, that is, you are not required to draw this inference, but you may do so if you find it to be reasonable and logical. . . .”

       The double jeopardy clause of the fifth amendment to the federal constitution provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . This clause is applicable to the states through the due process clause contained in the fourteenth amendment. See Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). Although our state constitution does not include a specific double jeopardy provision, our Supreme Court has held that article first, § 9, of the Connecticut constitution encompasses a prohibition against double jeopardy. Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962).

       We are aware that in State v. Jones, 166 Conn. 620, 353 A.2d 764 (1974), and State v. Ledbetter, 240 Conn. 317, 325-27, 692 A.2d 713 (1997), our Supreme Court found that failure to raise a double jeopardy claim in the trial court constituted a waiver of the constitutional right. Review was declined in each case. In Jones, the claim involved a second trial and in Ledbetter the issue involved the state’s appeal from a judgment of acquittal. This case involves a claim of multiple punishments for the same offense in a single prosecution, as did State v. Hill, 237 Conn. 81, 98-99, 675 A.2d 866 (1996), where the Supreme Court engaged in a Golding review of an unpreserved double jeopardy claim.

       Count one of the long form information stated in pertinent part: “[0]n oraboutNovemberl6,1993, at about 6:00p.m., on various streets in Hartford, including but not limited to Garden Street, Edgewood Street, Vine Street, Keeney Terrace, as well as in Keeney Park, the defendant, DUANE ANTHONY FOSTER, committed the crime of larceny as defined by Connecticut General Statutes § § 53a-119 and 53a-119 (8), and the property consisted of a motor vehicle, the value of which is Five Thousand ($5,000) Dollars or less.” Count six stated in pertinent part: “[I]n violation of Connecticut General Statutes § 53a-119b (a) (1) . . . on the same date as in Count One, at the same time as in Count One, at the same place as in Count One, the defendant, DUANE ANTHONY FOSTER, did operate and use a motor vehicle without the consent of the owner of that motor vehicle.”

       Practice Book § 619 provides: “Where the information alleges, in addition to the principal offense charged, a former conviction or convictions, such information shall be in two separate parts, each signed by the prosecuting authority. In the first part, the particular offense with which the accused is charged shall be set out, and in the other part the former conviction or convictions shall be alleged. In alleging the former conviction, it is sufficient that the information allege the date when, the town or city where, and the court wherein such conviction was obtained and the crime of which the defendant was convicted, all of which may be stated in accordance with the provisions of Sec. 618.”
      Practice Book § 840 provides: “When an information is divided into two parts under Sec. 619, on a finding of guilty on the first part of the information, a plea shall be taken and, if necessary, election made on the second part and the trial thereon proceeded with. If the defendant elects a jury trial on the second part of the information, such trial may be had to the same or to another jury as the judicial authority may direct.”

       The trial court advised the defendant: “Today you have been convicted of the following charges. Larceny in tire third degree, which is a class D felony. You have also been convicted of the following charges which do not apply to the serious persistent offender statute. . . . [Y]ou have been convicted of three counts of reckless endangerment in the first degree, which are class A misdemeanors. That means they are punishable by maximum one year imprisonment on each count. . . .You have also been convicted on interfering with a police officer, which is also a class A misdemeanor. That carries with it a maximum penalty of one year. But you have also been convicted of using a motor vehicle without the owner’s permission. Now, for the first offense, the maximum penalty for that would be a class A misdemeanor for the first offense. For a second offense, that becomes a

        class D felony, since you have previously been convicted of using a motor vehicle without the owner’s permission. In your case, that would now become punishable as a class D felony. Now the punishment for class D felonies is a minimum of one year and a maximum of five years .... So, to recap, because of the persistent felony offender statute, on the first charge of larceny in the third degree, you would now face a maximum of ten years. . . . On the using a motor vehicle without the owner’s permission, you would face a maximumpenalty of five years, a minimum penalty of one year and/or a $5000 fine. Do you understand that? . . . That is what the clerk is asking you to plead guilty to." (Emphasis added.)