author: FOTI, J.

text:
    STATE OF CONNECTICUT v. RICHARD LOMAX
    (AC 18648)
    Foti, Zarellaand Peters, Js.

      Argued September 19
    officially released November 7, 2000

      Mary Anne Royle, special public defender, for the appellant (defendant).

      Bruce R. Lockwood, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David P. Gold, former supervisory assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Richard Lomax, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (2) and 53a-49, attempt to commit larceny in the second degree in violation of General Statutes §§ 53a-123 (a) (3) and 53a-49, carrying a pistol without a permit in violation of General Statutes § 29-35 and interfering with an officer in violation of General Statutes § 53a-167a. The defendant was found not guilty of robbery in the first degree and larceny in the second degree. The defendant claims that (1) the court improperly admitted hearsay evidence and (2) the evidence presented was insufficient to support his conviction of attempt to commit robbery in the first degree and attempt to commit larceny in the second degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On Sunday, May 12, 1996, Sidney Collier, a member of the New Haven police department, was working in uniform on an extra duty security assignment at an open field flea market on Ella Grasso Boulevard in New Haven. At approximately 3:25 p.m., a vendor approached Collier and directed him to a disturbance. As Collier neared the scene, he observed the victim, Tywan Grier, on the ground. The victim was on his back with his hands, palms up, beside his head. The defendant was kneeling over him, holding a chrome gun in his right hand, pointed about twelve inches from the victim’s face. Collier saw the defendant pat the victim’s front pants pockets and attempt to put his hand in those pockets. As Collier drew his service weapon, the defendant got up and ran. Collier pursued the defendant for more than one block before subduing him. The defendant still possessed the handgun, which was capable of being fired and had a live round of ammunition in its chamber. The defendant also had a gold chain with a medallion and two separate bundles of money. The victim, who was still very nervous, arrived at the scene of the arrest. At that time, he identified the gold chain with the medallion as being his property. The victim’s identification of his property took place within two to three and one-half minutes after the incident.

I

The defendant claims that the court violated his fundamental right to a fair trial under both the confrontation and due process clauses of the United States and Connecticut constitutions. He claims violations of the fifth, sixth and fourteenth amendments to the United States constitution, and article first, § 8, of the constitution of Connecticut. He claims that the court improperly admitted Collier’s testimony as to the victim’s identification of his property under the spontaneous utterance exception to the hearsay rule. He argues that since the victim was available to testify and the state failed to call him, Collier’s testimony should not have been admitted under the spontaneous utterance exception. We disagree.

Because the admissibility of evidence under a well established exception to the hearsay rule is not a constitutional issue, as the defendant presents it, we will analyze it as an evidentiary issue. “Our standard of review regarding challenges to atrial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Cole, 50 Conn. App. 312, 330-31, 718 A.2d 457 (1998), aff'd, 254 Conn. 88, 755 A.2d 202 (2000). “It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion. . . . Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law .... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter .... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling.” (Internal quotation marks omitted.) Wright v. Hutt, 50 Conn. App. 439, 445, 718 A.2d 969, cert. denied, 247 Conn. 939, 723 A.2d 320 (1998). “It is a fundamental rule of appellate review of evidentiary rulings that if error is not of constitutional dimensions, an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him. Higgins v. Karp, 243 Conn. 495, 506, 706 A.2d 1 (1998).” (Internal quotation marks omitted.) Wright v. Hutt, supra, 453.

The defendant’s claim fails for two reasons. We conclude that the court properly admitted the evidence, but even if we assume arguendo that the evidence was improper, the error was harmless.

A

Connecticut recognizes the spontaneous utterance exception to the hearsay rule. See Perry v. Haritos, 100 Conn. 476, 124 A. 44 (1924). A court may allow into evidence otherwise inadmissible statements to prove the truth of the matter asserted, if “(1) the declaration follows some startling occurrence, (2) the declaration refers to the occurrence, (3) the declarant observed the occurrence, and (4) the declaration is made under circumstances that negate the opportunity for deliberation and fabrication by the declarant. . . . The overarching consideration governing these requirements is whether the statements were made before reasoned reflection had taken place.” (Internal quotation marks omitted.) State v. Torres, 58 Conn. App. 524, 530, 754 A.2d 200 (2000). “The excited utterance exception rests on the view that such assertions, made in reaction to a startling event, are trustworthy and void of self-interest.” (Internal quotation marks omitted.) State v. Bowman, 46 Conn. App. 131, 141, 698 A.2d 908 (1997). The time that transpired between the occurrence and the statement is merely a factor to be weighed along with any other material facts in the circumstances surrounding the statement in determining whether it was spontaneous. State v. Stange, 212 Conn. 612, 618, 563 A.2d 681 (1989).

In the present case, the victim uttered the challenged statement concerning the ownership of the item found in the defendant’s possession while the victim was still under the stress of just having had a gun pointed at his head as he lay on the ground during an attempt to commit robbery. The statement was made within a few minutes of that “startling event.” It would have been reasonable for the court to conclude that the trauma sustained by the victim occurred under circumstances that sufficiently negated the opportunity for deliberation and fabrication. We therefore conclude that the court did not abuse its discretion in admitting the statement into evidence under the spontaneous utterance exception to the hearsay rule.

B

We also conclude that even if the statement should not have been admitted into evidence, its admission was nonetheless harmless under the circumstances of this case.

Admission of a statement that is either irrelevant or impermissible hearsay is not a constitutional error. State v. Booth, 250 Conn. 611, 662, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000). The court made an evidentiary ruling, not constitutional in nature, which requires the defendant on appeal to establish harmfulness. See State v. Green, 55 Conn. App. 706, 710, 740 A.2d 450 (1999), cert. denied, 252 Conn. 920, 744 A.2d 438, cert. denied, 529 U.S. 1136, 120 S. Ct. 2019, 146 L. Ed. 2d 966 (2000). The defendant must show that it is more probable than not that the court’s ruling affected the result of the trial; see State v. McIntyre, 242 Conn. 318, 329, 699 A.2d 911 (1997); or that the prejudice resulting from the impropriety was so substantial as to undermine confidence in the fairness of the verdict. See State v. Askew, 245 Conn. 351, 371-72, 716 A.2d 36 (1998).

The defendant was acquitted of the charges of robbery in the first degree and larceny in the second degree. He was convicted of the crimes of attempt to commit robbery and attempt to commit larceny. The state was not required, under either of the attempt charges, to prove that the defendant actually took the chain from the victim. Consequently, the victim’s statement was irrelevant to the defendant’s conviction of those charges and, therefore, he suffered no harm because of the statement’s admission.

II

The defendant next claims that the state failed to prove beyond a reasonable doubt every essential element of the crimes of attempt to commit robbery in the first degree and attempt to commit larceny in the second degree.

“When reviewing sufficiency of the evidence claims, we employ a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993). Second, we determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt. State v. Hooks, 30 Conn. App. 232, 238, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993); State v. Salz, supra, 31.” (Internal quotation marks omitted.) State v. Watson, 50 Conn. App. 591, 604, 718 A.2d 497, cert. denied, 247 Conn. 939, 723 A.2d 319 (1998), cert. denied, 526 U.S. 1058, 119 S. Ct. 1373, 143 L. Ed. 2d 532 (1999).

“ ‘[ I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence.’ State v. Sivri, 231 Conn. 115, 646 A.2d 169 (1994). ‘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.’ Id., 134.” State v. Rogers, 50 Conn. App. 467, 473, 718 A.2d 985, cert. denied, 247 Conn. 942, 723 A.2d 319 (1998).

The defendant in his principal brief argues that “[n]o evidence introduced at trial established that the conduct between Grier and the defendant constituted attempt to commit robbery and attempt to commit larceny.” He claims that the victim’s statement was insufficient to prove the elements of the crimes, and that “[t]he state failed to use its key material witness in this case” so that the “circumstances surrounding the event” could never be tested by cross-examination.

The jury reasonably could have found, on the basis of the evidence presented and the reasonable inferences drawn therefrom, that the defendant, while holding the victim on the ground, pointed a loaded handgun at the victim’s head and attempted to take property from the victim’s front pockets. Collier’s testimony, which was based on his observations, was sufficient to establish the necessary elements of the crimes without the need of the victim’s testimony. See State v. Caballero, 49 Conn. App. 486, 492-93, 714 A.2d 1254, cert. denied, 247 Conn. 924, 719 A.2d 1170 (1998).

The judgment is affirmed.

In this opinion the other judges concurred.

       The record discloses that the name Richard Lomax is an alias and that the defendant’s name is McMillian Wright.

       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 ... (2) is armed with a deadly weapon . . . .”

       General Statutes § 53a-49 provides: “(a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
      “(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) of this section unless it is strongly corroborative of the actor’s criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law: (1) Lying in wait, searching for or following the contemplated victim of the crime; (2) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (3) reconnoitering the place contemplated for the commission of the crime; (4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; (5) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; (6) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (7) soliciting an innocent agent to engage in conduct constituting an element of the crime.

        “(c) When the actor’s conduct would otherwise constitute an attempt under subsection (a) of this section, it shall be a defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”

       General Statutes § 53a-123 (a) provides in relevant part: “A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and ... (3) the property, regardless of its nature or value, is taken from the person of another . . . .”

       General Statutes § 29-35 provides: “(a) No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. The provisions of this subsection shall not apply to the carrying of any pistol or revolver by any sheriff, parole officer or peace officer of this state, or sheriff, parole officer or peace officer of any other state while engaged in the pursuit of his official duties, or federal marshal or federal law enforcement agent, or to any member of the armed forces of the United States, as defined by section 27-103, or of this state, as defined by section 27-2, when on duty or going to or from duty, or to any member of any military organization when on parade or when going to or from any place of assembly, or to the transportation of pistols or revolvers as merchandise, or to any person carrying any pistol or revolver while contained in the package in which it was originally wrapped at the time of sale and while carrying the same from the place of sale to the purchaser’s residence or place of business, or to any person removing his household goods or effects from one place to another, or to any person while carrying any such pistol or revolver from his place of residence or business to a place or person where or by whom such pistol or revolver is to be repaired or while returning to his place of residence or business after the same has been repaired, or to any person carrying a pistol or revolver in or through the state for the purpose of taking part in competitions or attending any meeting or exhibition of an organized collectors’ group if such person is a bona fide resident of the United States having a permit or license to carry any firearm issued by the authority of any other state or subdivision of the United States, or to any person carrying a pistol or revolver to and from a testing range at the request of the issuing authority, or to any person carrying an antique pistol or revolver, as defined in section 29-33.
      “(b) The holder of a permit issued pursuant to section 29-28 shall carry such permit on his person while carrying such pistol or revolver.”

       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.”

       The defendant has failed to provide this court with any independent analysis of his claim under the state constitution. Accordingly, we will limit our review to the federal constitution. See State v. Porter, 241 Conn. 57, 133 n.77, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998).

       We note that our Supreme Court has observed that two standards exist for establishing harm. “One line of cases states that the defendant must establish that it is more probable than not that the erroneous action of the court affected the result. ... A second line of cases indicates that the defendant must show that the prejudice resulting from the impropriety was so substantial as to undermine confidence in the fairness of the verdict.” (Citations omitted; internal quotation marks omitted.) State v. Marshall, 246 Conn. 799, 812, 717 A.2d 1224 (1998); State v. McNair, 54 Conn. App. 807, 814, 738 A.2d 689, cert. denied, 251 Conn. 913, 739 A.2d 1249 (1999). In this case, the defendant has not satisfied his burden under either formulation.

       Because the state did not present the victim as a witness, the defendant received the benefit of a Secondino instruction. See Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960), overruled, State v. Malave, 250 Conn. 722, 737 A.2d 442 (1999), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000). The court instructed the jury that if it found that the victim was available and was someone that the state would naturally produce as a witness, it could infer that had the victim testified, his testimony would not have been favorable to the state.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CONNIE S. ALDER v. ROMAN ALDER
    (AC 19917)
    Laveiy, C. J., and Foti and O’Connell, Js.
    Submitted on briefs September 15
    officially released November 7, 2000

      David S. Grossman filed a brief for the appellant (plaintiff).

      James R. Mulvey filed a brief for the appellee (defendant).
   Opinion

PER CURIAM.

This is an appeal from the judgment dissolving the marriage of the parties. The plaintiff, Connie S. Alder, claims that the trial court improperly (1) awarded time limited alimony, (2) failed to award counsel fees to her and (3) allowed overseas visitation of the parties’ minor child with the defendant, Roman Alder. We affirm the judgment of the trial court.

“The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case, such as demeanor and attitude of the parties to the hearing. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Citation omitted; internal quotation marks omitted.) Milbauer v. Milbauer, 54 Conn. App. 304, 320, 733 A.2d 907 (1999).

“[ I]n determining [whether there has been an abuse of discretion] the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.” (Internal quotation marks omitted.) Ignacio v. Montana-Ignacio, 57 Conn. App. 647, 648, 750 A.2d 491 (2000). “[W]e do not review the evidence to determine whether a conclusion different from the one reached could have been reached.” (Internal quotation marks omitted.) Stewart v. Stewart, 57 Conn. App. 335, 336-37, 748 A.2d 376, cert. denied, 253 Conn. 918, 755 A.2d 216 (2000).

Nothing in the record, transcripts or briefs would warrant a conclusion by us that the trial court abused its discretion.

The judgment is affirmed.

       The court allowed the defendant to take the parties’ minor daughter to Germany to visit her paternal grandparents.


author: PELLEGRINO, J.

text:
    STATE OF CONNECTICUT v. SCOTT REPETTI
    (AC 20168)
    Schaller, Pellegrino and Dupont, Js.
    Argued September 14
    officially released November 7, 2000

      Sebastian O. DeSantis, special public defender, with whom, on the brief, was Elizabeth A. Sabilia, for the appellant (defendant).

      Robert J. Scheinblum, assistant state’s attorney, with whom were Sarah Sleere, assistant state’s attorney, and, on the brief, Kevin Kane, state’s attorney, for the appellee (state).
   Opinion,

PELLEGRINO, J.

The defendant, Scott Repetti, appeals from the judgment of the trial court revoking his probation after finding that he had violated its terms. The defendant claims on appeal that (1) the evidence presented did not support a finding that he violated the terms of his probation, (2) the court abused its discretion in terminating his probation and (3) the office of adult probation altered the terms of his probation in violation of his constitutional rights. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. In April, 1997, the defendant was sentenced after having pleaded guilty to burglary in the second degree in violation of General Statutes § 53a~102 and burglary in the third degree in violation of General Statutes § 53a-103. The court imposed concurrent terms of five years imprisonment on each charge, execution suspended, with five years of probation. The court imposed and the defendant agreed to the standard conditions of probation, which included, inter alia, that he not violate any state or federal criminal laws.

On June 30, 1999, the defendant was arrested on a char ge of burglary in the third degree in violation of § 53a-103 in connection with an incident at his neighbor’s home. The neighbor, Anita D’Lizaaraga, complained that while she was asleep she heard a noise and felt vibrations that woke her. Upon emerging from her bedroom, she noticed that the screen was removed from one of her windows. She saw the defendant looking in the window toward her bedroom, and saw that his head was through the window and in the room. The burglary charge was dismissed for lack of probable cause, and the defendant was then charged with criminal trespass in the first degree in violation of General Statutes § 53a-107 and breach of the peace in violation of General Statutes § 53a-181. On July 7, 1999, the defendant’s probation officer prepared a warrant alleging a violation of his probation pursuant to General Statutes § 53a-32. The warrant described in detail the June 30, 1999 incident, as well as two other violations of the defendant’s special probation conditions. The warrant noted that the defendant had been charged with violating § 53a-103 in connection with the June 30, 1999 incident.

Before the commencement of the violation of probation hearing, the state filed a substitute information charging the defendant with criminal trespass in the third degree in violation of General Statutes § 53a-109 and disorderly conduct in violation of General Statutes § 53a-182. The defendant voiced no objection to the substituted charges at that time, and the hearing proceeded to conclusion. At that hearing, the court found D’Lizaaraga’s testimony concerning the incident of June 30, 1999, to be credible. The court thereafter found that the defendant was guilty of criminal trespass and disorderly conduct and, therefore, that he had violated a law of the state of Connecticut in violation of the terms of his probation. The court then opened the previous judgment and imposed the balance of the jail sentence.

I

The defendant first claims that the laws he was found to have violated were different from those cited in his violation of probation warrant.

Although the due process requirements in a probation revocation hearing are less demanding than those in a full criminal proceeding, they include the provision of written notice of the claimed violations to the defendant. See State v. Durkin, 23 Conn. App. 642, 647, 583 A.2d 1303 (1990), rev’d on other grounds, 219 Conn. 629, 595 A.2d 826 (1991); see also General Statutes § 53a-32; Gagnon v. Scarpelli, 411 U.S. 778, 782-86, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973).

Here, the defendant’s violation of probation warrant fully described the June 30, 1999 incident, which ultimately was a basis for the court’s finding a violation of probation. The substitute information filed prior to the hearing charged the defendant with criminal trespass in the third degree and disorderly conduct, and he offered a defense at the hearing. From the warrant and the substitute information, the defendant was aware that he was accused of violating specific criminal laws of this state because of his actions at D’Lizaaraga’s residence. The court found that he had violated both of the laws as charged in the substitute information and, therefore, had violated his probation. Under those circumstances, it is clear that the defendant received notice of the ways in which he was ultimately found to have violated his probation. See also State v. Outlaw, 60 Conn. App. 515, 524-26, 760 A.2d 140 (2000).

The defendant also claims that there was insufficient evidence to support a finding of violation of probation. The standard of proof required to find a violation is the same as the one used in a civil proceeding. For the court to find a violation, “the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his . . . probation.” State v. Davis, 229 Conn. 285, 302, 641 A.2d 370 (1994). “In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . This court may reverse the trial court’s initial factual determination [of a violation] if we determine that [it] was clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence to support it ... or 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 making this determination, every reasonable presumption must be given in favor of the trial court’s ruling .... A fact is more probable than not when it is supported by a fair preponderance of the evidence.” (Internal quotation marks omitted.) State v. Samuel, 57 Conn. App. 64, 67-68, 747 A.2d 21, cert. denied, 253 Conn. 909, 753 A.2d 942 (2000); State v. Welch, 40 Conn. App. 395, 401, 671 A.2d 379, cert. denied, 236 Conn. 918, 673 A.2d 1145 (1996).

The court found D’Lizaaraga’s testimony credible as to the June 30, 1999 incident, and found that the defendant’s conduct constituted criminal trespass in the third degree and disorderly conduct, and that he indeed had violated laws of the state of Connecticut, which constituted a violation of probation. Applying the clearly erroneous standard of review to the record before us, we conclude that on the basis of the evidence presented at the hearing, the court reasonably could have found by a preponderance of the evidence that the defendant violated his probation by committing the crimes of criminal trespass in the third degree and disorderly conduct. We therefore sustain the court’s finding that the defendant violated the terms of his probation.

II

The defendant next claims that the court abused its discretion in terminating his probation.

Once the court determines that there has been a violation of the terms of probation, it then must decide whether the defendant’s probationary status should be revoked. “On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. General Statutes § 53a-32 (b). In making this second determination, the trial court is vested with broad discretion. State v. Smith, 207 Conn. 152, 167, 540 A.2d 679 (1988) ([a] defendant who seeks to reverse the exercise of judicial discretion, assumes a heavy burden).” (Internal quotation marks omitted.) State v. Davis, supra, 229 Conn. 290; State v. Treat, 38 Conn. App. 762, 767, 664 A.2d 785, cert. denied, 235 Conn. 920, 665 A.2d 907 (1995).

The court stated that it carefully considered all of the evidence during both phases of the hearing, and found that the defendant was not amenable to rehabilitation and that he posed a threat to public safety. After our review of the record, we conclude that the court did not abuse its discretion in revoking the defendant’s probation.

Ill

The defendant claims that the office of adult probation altered the terms of his probation in violation of his due process rights.

Additional facts are necessary for the resolution of this issue. In addition to the standard conditions of probation, the court that sentenced the defendant on his 1997 burglary conviction imposed several special conditions. These included intensive probation for the first six months, sex offender treatment, no contact with the victim, substance abuse treatment, random urine testing and electronic monitoring. The defendant received a list of intensive probation conditions from his probation officer at the outset of his probationary period. Subsequently, he was given an additional list of sex offender probation conditions, which included that he remain drug and alcohol free. The defendant signed both lists and agreed to abide by the conditions therein. Subsequently, during a surprise visit to the defendant’s residence, his probation officer found him drinking a forty ounce container of beer. The officer testified as to this incident at the defendant’s probation revocation hearing, and the court found it to be an additional basis for holding him in violation.

The defendant now argues that the office of adult probation lacked authority to impose the sex offender conditions. Although the defendant devotes a major portion of his briefs to a discussion of the constitutional impropriety of the office’s action in adding conditions of probation after the imposition of the original sentence, the only additional condition imposed that he was found to have violated was the requirement that he refrain from consuming alcohol.

General Statutes § 53a-30 (b) expressly authorizes the office of adult probation to “require that the defendant comply with any or all conditions which the court could have imposed under subsection (a) which are not inconsistent with any condition actually imposed by the court.” This court has previously approved of the office’s requirement of sex offender treatment for a probationer where such treatment had not explicitly been included in the court-ordered terms of probation. In State v. Thorp, 57 Conn. App. 112, 117, 747 A.2d 537, cert. denied, 253 Conn. 913, 754 A.2d 162 (2000), we held that because the sentencing court could have imposed sex offender treatment under § 53a-30 (a), and because such treatment was not inconsistent with that court’s conditions of no contact with the victim and substance abuse evaluation and treatment, the actions of the office of adult probation were not improper. Although the defendant in Thorp received a hearing before the conditions were added, we noted that due process did not require a hearing. Id., 119.

In this case, one of the general conditions of probation imposed by the court was that the defendant “submit to any alcohol and/or drug testing required by the probation officer.” Implicit in a testing requirement is the authorization of the tester to limit or prohibit the use of the substance for which testing will be done. Otherwise, the testing would serve little purpose. Furthermore, similar to the probationer in Thorp, the defendant’s special conditions included no contact with the victim and substance abuse treatment. Unlike the conditions in Thorp, however, the defendant’s conditions in this case explicitly included sex offender treatment. Thus, the office’s requirement that, as part of sex offender treatment, the defendant refrain from the use of alcohol is wholly consistent with the terms ordered by the court, and it cannot be said that the alcohol prohibition was improperly imposed.

Regarding the other additional conditions that the office of adult probation imposed, there is no claim made that any of them were found to be the basis for the violation of probation, and the defendant is no longer subject to them since his probation has been revoked. We therefore decline to address the issue of whether the office was authorized to impose those additional terms because it is irrelevant.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-103 (a) provides: “A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”

       General Statutes § 53a-107 (a) provides in relevant part: “A person is guilty of criminal trespass in the first degree when (1) Knowing that he is not licensed or privileged to do so, he enters or remains in a building or any other premises after an order to leave or not to enter personally communicated to him by the owner of the premises or other authorized person . . . .”

       General Statutes § 53a-181 (a) provides in relevant part: “A person is guilty of breach of the peace when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he . . . creates a public and hazardous or physically offensive condition by any act which he is not licensed or privileged to do ...

       General Statutes § 53a-32 (a) provides in relevant part: “Any probation officer may arrest any defendant on probation without a warrant or may deputize any other officer with power to arrest to do so by giving him a written statement setting forth that the defendant has, in the judgment of the probation officer, violated the conditions of his probation. Such written statement, delivered with the defendant by the arresting officer to the official in charge of any correctional center or other place of detention, shall be sufficient warrant for the detention of the defendant. ...”

       General Statutes § 53a-109 (a) provides in relevant part: “A person is guilty of criminal trespass in the third degree when, knowing that he is not. licensed or privileged to do so: (1) He enters or remains in premises which are . . . enclosed in a manner designed to exclude intruders . . .

       General Statutes § 53a-182 (a) provides in relevant part: “A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he . . . (2) . . . annoys or interferes with another person . . .

       Although the defendant makes this argument as part of his claim of insufficient evidence, this claim falls under a different due process theory.

       The court ordered that these conditions were to last six months.


author: LAVERY, C. J.

text:
    PAUL J. GEARY v. WENTWORTH LABORATORIES, INC., ET AL.
    (AC 20170)
    Lavery, C. J., and Foti and O’Connell, Js.

      Submitted on briefs September 15
    officially released November 7, 2000

      William M. Laviano filed a brief for the appellant (plaintiff).

      Bernard E. Jacques, Dana, R. Pet,a,way and Sara, N. Robinson filed a brief for the appellees (defendants).
   Opinion

LAVERY, C. J.

The plaintiff, Paul J. Geary, appeals from the trial court’s judgment rendered in favor of the defendants, Wentworth Laboratories, Inc. (Wentworth), and John Brown, following a jury trial on the plaintiffs amended complaint alleging wrongful termination, breach of contract, promissory estoppel, tortious interference with contract and breach of an implied covenant of good faith and fair dealing. On appeal, the plaintiff claims that the court improperly failed to instruct the jury on (1) the apparent or actual authority of the vice president and general manager to bind Went-worth to an oral contract and (2) partial performance as it relates to contract formation. We disagree and affirm the judgment of the trial court.

The following facts are undisputed. The plaintiff began his employment with Wentworth in October, 1988. In November, 1991, he was offered a higher position with another company. When the plaintiff submitted his resignation to accept the new job, the vice president and general manager of Wentworth at the time, Clive Beddoe-Stevens, met with the plaintiff and persuaded him to stay on at Wentworth by offering him a raise, which he was in fact given. The plaintiff alleged at trial, however, that Beddoe-Stevens also expressly promised to appoint the plaintiff to head the new division that would be created by the separation of the company into two business units. When the separation of divisions finally occurred in February, 1994, Went-worth failed to appoint the plaintiff to the position. The plaintiff complained that the failure to appoint him to the position was a breach of the agreement he had made with Wentworth’s vice president. Subsequently, the plaintiff resigned, claiming that he was constructively discharged as a result of the allegedly retaliatory acts Wentworth took after he protested the breach. This action followed.

Our standard of review concerning preserved claims of improper jury instruction is well settled. See State v. Belanger, 55 Conn. App. 2, 6-7, 738 A.2d 1109, cert. denied, 251 Conn. 921, 742 A.2d 359 (1999), cert. denied, 530 U. S. 1205, 120 S. Ct. 2200, 147 L. Ed. 2d 235 (2000). A jury instruction must be “considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Reid, 254 Conn. 540, 559, 757 A.2d 482 (2000). Therefore, “[o]ur standard of review on this claim is whether it is reasonably probable that the jury was misled.” Thames River Recycling, Inc. v. Gallo, 50 Conn. App. 767, 774, 720 A.2d 242 (1998), citing McSwiggan v. Kaminsky, 35 Conn. App. 673, 681, 647 A.2d 5, cert. denied, 231 Conn. 934, 649 A.2d 256 (1994).

I

The plaintiffs first claim is that the court’s jury instructions were improper because they failed to instruct the jury as to actual and apparent authority, thus leaving the jury without guidance as to whether the vice president and general manager of Wentworth had the ability to bind the company to a contract. We disagree.

Our review of the court’s instructions reveals that the instructions were well adapted to the law of contracts. The court apprised the juiy of the general rule that to form a binding contract there must be an offer and acceptance based on a mutual understanding of the parties. Lembo v. Schlesinger, 15 Conn. App. 150, 154, 543 A.2d 780 (1988). The court further instructed the jury that a contract requires a clear and definite promise; see Suffield Development Associates Ltd. Partnership v. Society for Savings, 243 Conn. 832, 843, 708 A.2d 1361 (1998); and that mere representations indicating an intent to enter into another employment contract at some time in the future do not support contractual liability. See D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 214, 520 A.2d 217 (1987).

Because the court properly instructed the jury as to the elements of a contract and because the jury concluded that Wentworth made no clear and definite promise to the plaintiff, we need not reach the question of whether the court should have instructed the jury on apparent authority. It is irrelevant whether Beddoe-Stevens had authority, either actual or apparent, to bind Wentworth because the jury found that he made no promise to appoint the plaintiff to be in charge of the new division.

II

The plaintiff next claims that the court improperly refused to instruct the jury on partial performance as it relates to the formation of a contract and its terms. We are not persuaded.

In determining whether the trial court’s instructions are proper, “[t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error.” (Internal quotation marks omitted.) State v. Floyd, 253 Conn. 700, 714, 756 A.2d 799 (2000). In addition, we must review the jury charge “in the context of the factual issues raised [at the trial].” Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 786, 734 A.2d 112 (1999), citing State v. Austin, 244 Conn. 226, 237, 710 A.2d 732 (1998).

The rules governing contract formation are well settled. “To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties. . . . To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties. ... If the minds of the parties have not truly met, no enforceable contract exists. . . . [A]n agreement must be definite and certain as to its terms and requirements. ... So long as any essential matters are left open for further consideration, the contract is not complete.” (Citations omitted; internal quotation marks omitted.) L & R Realty v. Connecticut National Bank, 53 Conn. App. 524, 534-35, 732 A.2d 181, cert. denied, 250 Conn. 901, 734 A.2d 984 (1999). A contract requires a clear and definite promise. See Suffield Development Associates Ltd. Partnership v. Society for Savings, supra, 243 Conn. 843. A court may, however, enforce an agreement “if the missing terms can be ascertained, either from the express terms or by fair implication.” Presidential Capital Corp. v. Reale, 231 Conn. 500, 507-508, 652 A.2d 489 (1994). Thus, an agreement, previously unenforceable because of its indefiniteness, may become binding if the promise on one side of the agreement is made definite by its complete or partial performance. See Augeri v. C. F. Wooding Co., 173 Conn. 426, 430, 378 A.2d 538 (1977).

The gravamen of the plaintiffs claim is that if properly instructed, the jury could have found, under the theory of partial performance, that a contract existed between the parties because Wentworth partially performed its promise when it gave the plaintiff a raise after he withdrew his resignation. The jury could then have supplied reasonable missing terms to the employment contract including duration, salary and benefits.

Certain material terms such as the duration, salary, fringe benefits and other conditions of employment are deemed essential to an employment contract. See D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 215. Mere representations indicating an intent to enter into a future contract for employment do not give rise to contractual liability. See id., 214. Because partial performance is limited to those cases where essential matters have been agreed to and are not open for further consideration, we conclude that a promise indicating an intent to make a future employment contract, absent an agreement on the material terms of employment, is not binding as a contract regardless of the promisor’s partial performance.

In this case, the jury found that no definite promise was made regarding future employment, and thus no agreement was made as to material terms. We conclude that there was no factual basis for a jury instruction regarding partial performance in this case.

We further note that the jury instructions sufficiently guided the jury to the correct verdict insofar as they addressed the necessity of material terms to form an employment contract. The court instructed as follows: “I charge you that an agreement must be definite and certain as to its terms and requirements in order to constitute a contract. In deciding whether the parties entered into an agreement in November, 1991, you may consider whether all material terms essential to an employment contract, such as duration, conditions of employment, salary, fringe benefits and so forth, were included.” (Emphasis added.) The court further instructed, “You must therefore determine whether, in November of 1991, the parties entered into an agreement or merely discussed the expectation of a future contract after the division split occurred.” (Emphasis added.) The court instructed the jury as to the general rules of contract formation, including the requirement of a definite promise to support employment contract liability, and to consider whether the parties agreed to the essential terms of an employment contract. We therefore conclude that the court properly adapted the jury instructions to the established rules of contract formation and partial performance to the extent those issues were raised by the evidence in the case.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court gave the following relevant instructions: “You must first determine whether a contract existed based on all the circumstances in November of 1991 as they existed. A contract is not completed if, in the contemplation of the parties, something remains to be done to establish the contractual relationship. The law will not make it [a] contract with the parties and cannot, nor does it regard an arrangement as complete which the parties regard as incomplete. The decisive question for you to determine from the circumstances, the motives of the parties and the purposes which they sought to accomplish is whether a contract was made.
      “To create a contract, there must be both offer and acceptance. There must be a meeting of the minds. There must also be consideration for that contract. And here, there is testimony that the plaintiff received a salary increase and agreed to remain with [Wentworth] forgoing a position with a competitor in the industry.

        “I charge you that an agreement must be definite and certain as to its terms and requirements in order to constitute a contract. In deciding whether the parties entered into an agreement in November, 1991, you may consider whether all material terms essential to an employment contract, such as duration, conditions of employment, salary, fringe benefits and so forth, were included. To be enforceable, it is not necessary that an agreement be in writing. An oral agreement may be enforceable.
      “You must therefore determine whether, in November of 1991, the parties entered into an agreement or merely discussed the expectation of a future contract after the division split occurred. If you find that the plaintiff, Paul Geary, has proven by a fair preponderance of the evidence that a contract was created between himself and [Wentworth] in 1991, you must then consider whether he has proven that [Wentworth] breached the contract by that same standard, a fair preponderance of the evidence.”

       In response to the interrogatory, “Do you find that a clear and definite promise was made to the plaintiff, Paul Geary, that he would be named head of the operations division of Wentworth Laboratories, Inc., following a split into two divisions,” the jury answered, “No.”

       See footnote 2.


text:
    TREVOR CONWAY v. CITY OF HARTFORD ET AL.
    (AC 20084)
    Lavery, C. J., and Foti and O’Connell, Js.
    Submitted on briefs September 15
    officially released November 7, 2000

      Katrena Engstrom filed a brief for the appellant (plaintiff).

      Sheila A. Huddleston and Linda L. Yoder filed a brief for the appellees (defendants).
   Opinion

PER CURIAM.

The plaintiff, Trevor Conway, appeals from the trial court’s denial of his motion to open a judgment of nonsuit. The plaintiff claims that the court improperly denied his motion to open the judgment pursuant to General Statutes § 52-212 (a) and Practice Book § 17-43. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our consideration of this appeal. The plaintiff, Trevor Conway, was employed by the defendant city of Hartford (city) from 1984 to 1993, when he was laid off. The plaintiff is a transsexual. When hired by the city, the plaintiff was a woman, Tracey Conway. The plaintiff legally changed his name in November, 1990, to Trevor Conway and received major surgical treatment from April 15,1991, until September 27,1991. He is now a man.

On August 17, 1993, the plaintiff filed a complaint with the commission on human rights and opportunities against the city and his supervisor, James Paradiso, who also is a defendant in this action. The plaintiff claimed that they had violated rights guaranteed to him by General Statutes §§ 46a-60 (a) (1) and (5), and 46a-81c. On July 18, 1995, the plaintiff obtained a release of jurisdiction from the commission on human rights and opportunities.

On August 22, 1995, the plaintiff commenced the current action in the Superior Court for the judicial district of Hartford. The plaintiff alleged that the defendants had discriminated against him because of his sex change, his mental disorder of gender dysphoria and his sexual orientation.

In March, 1997, the defendants served the plaintiff with interrogatories and requests for documents. The plaintiff neither objected to nor responded to any of the defendants’ interrogatories and document requests. On January 27, 1998, the court, Teller, J., entered a scheduling order requiring that all written discovery requests and responses be completed by March 31,1998, with any supplemental discovery to be completed by April 30,1998. On March 13,1998, the plaintiff answered the interrogatories and produced a number of documents.

On January 5, 1999, the defendants commenced a deposition of the plaintiff. During the deposition, the defendants discovered that the plaintiff had notes related to the litigation. The defendants’ counsel then requested that the plaintiff produce all responsive supplemental documents prior to the continuation of the deposition on March 2,1999, and the plaintiffs counsel agreed to do so. On March 2, 1999, another deposition of the plaintiff was convened. The plaintiff again failed to produce the requested documents, and the defendants’ counsel thereafter adjourned the deposition and indicated that they would go to court with a motion to compel and for sanctions.

On May 5, 1999, the defendants filed a motion to dismiss the plaintiffs action due to the plaintiffs repeated failure to comply with discovery requests. On May 11, 1999, counsel for the parties appeared before the court, Berger, J., for a trial management conference. At that time, the plaintiff produced a stack of documents four feet high in response to the defendants’ earlier discovery requests. The court heard argument at that time on the defendants’ motion to dismiss. The court then rendered a judgment of nonsuit, stating: “[T]o put another party at such a disadvantage, to do it so intentionally, to violate court order after court order after court order and to violate agreements, to violate the basic principles of fairness of litigation requires this action.”

The plaintiff did not appeal from the judgment of nonsuit. On August 24,1999, the plaintiff filed a motion to open that judgment. On September 13, 1999, the court, Berger, J., denied the plaintiffs motion without a written or oral memorandum of decision. The plaintiff did not seek an articulation of the court’s decision. This appeal followed.

I

The plaintiff claims that the court improperly denied his motion to open the judgment of nonsuit pursuant to § 52-212 and Practice Book § 17-43. “The power of a court to set aside a nonsuit judgment is controlled by § 52-212. Pantlin & Chananie Development Corporation v. Hartford Cement & Bldg. Supply Co., 196 Conn. 233, 234-35, 492 A.2d 159 (1985); Eastern Elevator Co. v. Scalzi, 193 Conn. 128, 131, 474 A.2d 456 (1984); Jaquith v. Revson, 159 Conn. 427, 431, 270 A.2d 559 (1970). The statute provides that any judgment rendered upon a nonsuit may be set aside upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action in whole or in part existed at the time of the rendition of the judgment and that the plaintiff was prevented by mistake, accident or other reasonable cause from prosecuting the action. It is thus clear that there is a two-pronged test for setting aside a judgment rendered after a nonsuit. Eastern Elevator Co. v. Scalzi, supra [131]. There must be a showing (1) that a good cause of action, the nature of which must be set forth, existed at the time judgment was rendered, and (2) that the plaintiff was prevented from prosecuting the action because of mistake, accident or other reasonable cause. General Statutes § 52-212; Practice Book § 377 [now § 17-43]; Pantlin & Chananie Development Corp. v. Hartford Cement & Bldg. Supply Co., supra, 235.” Jaconski v. AMF, Inc., 208 Conn. 230, 237, 543 A.2d 728 (1988).

In Jaconski v. AMF, Inc., supra, 208 Conn. 237-38, citing Eastern Elevator Co. v. Scalzi, supra, 193 Conn. 131-32, our Supreme Court reiterated that “in granting or denying a motion to open a judgment, the trial court is required to exercise a sound judicial discretion and its decision will be set aside only for an abuse of such discretion. We noted in Jaquith v. Revson, supra, [159 Conn. 431-32] that the denial of a motion to set aside a nonsuit should not be held to be an abuse of discretion in any case in which it appears that a plaintiff has not been prevented from prosecuting the claim by mistake, accident or other reasonable cause. Further, we have long held that negligence is no ground for vacating a judgment, and that the denial of a motion to open a nonsuit judgment should not be held an abuse of discretion where the failure to prosecute the claim was the result of negligence. People’s Bank v. Horesco, 205 Conn. 319, 323-24, 533 A.2d 850 (1987); Jaquith v. Revson, supra, 432; Automotive Twins, Inc. v. Klein, 138 Conn. 28, 34, 82 A.2d 146 (1951).”

At the time that the judgment of nonsuit was rendered in the present case, the court made the specific finding that the failure of the plaintiff to comply with discovery requests and his act of tendering a stack of documents four feet high at the trial management conference was due to the plaintiffs intentional withholding of documents. The court determined that the plaintiffs noncompliance was intentional rather than the product of a psychiatric disability. That determination is supported by the evidence. The plaintiffs actions therefore were not due to any accident, mistake or other reasonable grounds. Because the court denied the motion to open without a written or oral memorandum of decision, and because the plaintiff did not seek an articulation pursuant to Practice Book § 66-5, we have an inadequate record before us and therefore do not make any further inquiry. See Bank of Boston Connecticut v. Schlesinger, 220 Conn. 152, 154 n.2, 595 A.2d 872 (1991).

II

The plaintiff next claims that the judgment of nonsuit was disproportionately harsh as a sanction under the circumstances presented to the court. “On appeal from a denial of a motion to open a judgment where there has been no appeal from the underlying judgment, the good cause required to open that judgment cannot involve the merits of the judgment because that would require a resolution of the same question that would have been resolved had the appellant timely appealed from the judgment and would, in effect, extend the time to appeal. See Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 356, 579 A.2d 1054 (1990). When a motion to open is filed more than twenty days after the judgment, the appeal from the denial of that motion can test only whether the trial court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment.” Altberg v. Paul Kovacs Tire Shop, Inc., 31 Conn. App. 634, 639-40, 626 A.2d 804 (1993).

The plaintiff in this case did not appeal from the judgment of nonsuit but, rather, appealed from the denial of his motion to open a judgment of nonsuit. As such, this court will not review the plaintiffs claim that the trial court’s sanctions were disproportionately harsh because that question concerns the merits of the underlying judgment of nonsuit.

The judgment is affirmed.

       General Statutes § 52-212 (a) provides: “Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.”

       Practice Book § 17-43 (a) provides in relevant part: “Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which notice was sent, and the case reinstated on the docket on such terms in respect to costs as the judicial authority deems reasonable, upon the written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. . . .”


author: SCHALLER, J.

text:
    DONNA M. MCCARTHY v. VINCENT P. MCCARTHY
    (AC 19600)
    Laveiy, C. J., and SchaUer and O’Connell, Js.
    Submitted on briefs September 12
    officially released November 7, 2000

      Ann-Louise Lohr filed a brief for the appellant (defendant).

      John P. Febbroriello filed a brief for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant, Vincent P. McCarthy, in this action for the dissolution of a marriage appeals from the judgment of the trial court allocating the value of his federal tax exemptions to the plaintiff, Donna M. McCarthy. The dispositive issue is whether the court improperly ordered the defendant to compensate the plaintiff for any tax exemptions transferred to the defendant. We affirm the judgment of the trial court.

The following facts and procedural history are necessary for a proper resolution of this appeal. The parties’ marriage was dissolved on September 11, 1995. The memorandum of decision addressed issues of visitation, child support and alimony, but did not address the issue of the allocation of federal tax exemptions. The court, Shortall, J., first addressed tax exemption considerations on April 29, 1997. At that time, the court ordered, for the five dependent exemptions available for the parties’ five minor children, that the defendant “claim four of the children as exemptions for 1996, and that the plaintiff claim one of the children, provided that the defendant pay the plaintiff $852 within 30 days of this date.”

On August 13, 1998, the defendant filed a second motion to allocate tax exemptions for tax year 1997. The court, Pellegrino, J., in its January 26, 1999 decision, ordered that “the parties determine for taxable year 1997 the most efficient use of the federal tax exemptions to accomplish a zero tax expense to the plaintiff with the defendant reimbursing the plaintiff for any actual taxes she might be obligated to pay with taking the exemptions necessary to minimize her tax and yet allowing the defendant to utilize the remaining exemptions.”

On February 1, 1999, the plaintiff filed a motion to reargue, claiming that she should be reimbursed for any tax refund to which she would be entitled had she retained all four federal tax exemptions. The court, Pellegrino, J., heard the motion on April 27, 1999, and ordered that in return for the use of the exemptions, the defendant pay the plaintiff the amount of the tax refund she would have received had she used the exemptions. The defendant appeals from that order.

The defendant claims that the court improperly ordered the defendant, a noncustodial parent and the sole source of financial support to the children, to compensate the plaintiff for any tax liability she incurs as a result of not claiming the dependent tax exemptions. The plaintiff responds that the record is not adequate to review this issue or, in the alternative, that Judge Pellegrino’s April 27,1999 decision modifying the original order should be reviewed under an abuse of discretion standard. We conclude that the order was not improper.

As stated by our Supreme Court when confronted with the question of whether a court may allocate tax exemptions, “actions for dissolution of marriage are inherently equitable proceedings.” Serrano v. Serrano, 213 Conn. 1, 12, 566 A.2d 413 (1989). “The power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage. Without this wide discretion and broad equitable power, the courts in some cases might be unable fairly to resolve the parties’ dispute . . . .” Pasquariello v. Pasquar-iello, 168 Conn. 579, 585, 362 A.2d 835 (1975). Our “limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court.” Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 283, 649 A.2d 518 (1994).

It is within a court’s power to allocate tax exemptions. See Serrano v. Serrano, supra, 213 Conn. 11. The question of whether a court may require the benefited party to compensate the party who transfers the tax exemptions for the value of the exemptions is an issue of first impression. The defendant, in his brief, offers sibling state authority that stands for the proposition that an exemption is “valuable only to persons with income, and up to a certain point, the higher the income the more valuable exemptions become because of the progressivity of the federal income tax.” Cross v. Cross, 178 W. Va. 563, 573, 363 S.E.2d 449 (1987). We find persuasive much of the delineation of concerns related to allocation of the dependent tax exemption in Cross.

The Supreme Court of Appeals of West Virginia in Cross stated that “it seems only reasonable that a trial judge should allocate the dependency exemption to the parent in the highest tax bracket, and then enhance (or reduce) the value of the cash child support payments to offset the value of the exemption.” Id., 574. It is that same concern to which the court in this case alluded when it stated that the defendant would take “better advantage of them because [his] income is more.” The fact that the exemptions are worth more does not mandate that equity afford the full benefit to one while denying any benefit to the, other. The court clearly considered this concern in issuing its order.

Our Supreme Court in Serrano, in reviewing equitable considerations that required allocation of dependent tax exemptions in the first instance, touched on many of the concerns that now compel us to affirm the order requiring reimbursement for use of the tax exemptions by a noncustodial parent. “The [noncustodial parent] derives an economic advantage from having the dependent child exemption since he earns income against which he can claim the exemption in calculating his federal tax liability. The [custodial parent], on the other hand, currently has no taxable income against which she could apply the exemption. . . . The trial court’s decision to allocate the exemption to the [noncustodial parent] has the further advantage of providing an incentive for [him] to keep current in his support payments since the [custodial parent] can refuse to execute the declaration for any tax year during which the [noncustodial parent] has failed to make support payments. The trial court’s allocation of the exemption to the [noncustodial parent] was therefore not erroneous.” Serrano v. Serrano, supra, 213 Conn. 12-13. We therefore conclude that the April 27, 1999 order was not improper.

The judgment is affirmed.

In this opinion the other judges concurred.

      A more detailed procedural history of this case may be found in the opinions related to the parties’ prior appearances before this court. See McCarthy v. McCarthy, 55 Conn. App. 326, 752 A.2d 1093 (1999), cert. denied, 252 Conn. 923, 752 A.2d 1081 (2000); McCarthy v. McCarthy, 44 Conn. App. 930, 692 A.2d 869, cert. denied, 241 Conn. 916, 696 A.2d 986 (1997).

       A taxpayer who supports dependents is allowed a dependent tax exemption, provided certain conditions are met. See 26 U.S.C. §§ 151, 152 (1994 & Sup. II 1996). The parties in this case have four dependent children, thus four tax exemptions.

       One of the five children has reached the age of eighteen and no longer falls within the court’s child support orders.

       The court expressed its reasoning as follows: “Mr. McCarthy, that was my intent. My intent to be equitable would be, she would, she would take advantage of the four deductions and she’d get certain moneys back. But you would take more advantage, better advantage of them because your income is more so that if you paid her what she would have received back plus her tax liability—and you would get whatever the difference would be. That was the way I did it.”


author: LANDAU, J.

text:
    JOHN M. GLOVER AGENCY v. RDB BUILDING, LLC
    (AC 19813)
    Landau, Pellegrino and Peters, Js.

      Argued September 22
    officially released November 7, 2000

      Carolyn A. Comerford, for the appellant (defendant).

      James J. Farrell, with whom, on the brief, were B'ruce J. Gelson and Patrick M. Bimey, for the appellee (plaintiff).
   Opinion

LANDAU, J.

The defendant, RDB Building, LLC, appeals from the judgment rendered by the trial court in accordance with the report of the attorney fact finder in favor of the plaintiff, John M. Glover Agency. The defendant claims that the court improperly (1) affirmed the conclusions of the fact finder, which were unsupported by the pleadings and the evidence, (2) construed the plain language of the agreement between the parties and (3) applied the provisions of General Statutes § 38a-160 et seq. We affirm the judgment of the trial court.

The fact finder made the following findings of fact. On or about July 1, 1996, the parties entered into an oral agreement whereby the plaintiff was to provide insurance protection for general liability and other losses that the defendant might sustain at premises located at 1660 East Main Street in Waterbury. Some of the parties’ agreements were written and others were oral. The parties agreed that the value of the plaintiffs services and insurance coverage for one year was $24,678, which was the annual premium the plaintiff quoted to the defendant. The parties agreed, as well, that if the plaintiff provided services and coverage prior to the defendant’s canceling the coverage, the plaintiff would be entitled to a “minimum earned premium” of $5878. The defendant stopped payment on the check it gave to the plaintiff as the first installment on the premium due, thereby canceling the coverage three weeks after it went into effect. The plaintiff, therefore, was not able to provide services and coverage for the year.

The defendant failed to pay the plaintiff the “minimum earned premium,” and the plaintiff commenced an action on the contract. The fact finder concluded that the term “minimum earned premium” contained in the written agreement was not ambiguous and that the plaintiff was due $5878 plus prejudgment interest pursuant to General Statutes § 37-3a. The court rendered judgment on the fact finder’s report, and the defendant appealed.

I

The defendant’s primary claim in this appeal is that the trial court improperly affirmed the fact finder’s conclusion that the term “minimum earned premium” is not ambiguous. We disagree.

“The existence of a contract is a question of fact to be determined by the trier on the basis of all the evidence. ... To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties.” (Citations omitted; internal quotation marks omitted.) L & R Realty v. Connecticut National Bank, 53 Conn. App. 524, 534, 732 A.2d 181, cert. denied, 250 Conn. 901, 734 A.2d 984 (1999). In any case in which the parties dispute the meaning of definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. See Pesino v. Atlantic Bank of New York, 244 Conn. 85, 91-92, 709 A.2d 540 (1998), citing Levine v. Massey, 232 Conn. 272, 277, 654 A.2d 737 (1995); Mulligan v. Rioux, 229 Conn. 716, 740, 643 A.2d 1226 (1994), on appeal after remand, 38 Conn. App. 546, 662 A.2d 153 (1995); Bank of Boston Connecticut v. Schlesinger, 220 Conn. 152, 158, 595 A.2d 872 (1991); Thompson & Peck, Inc. v. Harbor Marine Contracting Corp., 203 Conn. 123, 131, 523 A.2d 1266 (1987); Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981).

“Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” (Citations omitted; internal quotation marks omitted.) Bank of Boston Connecticut v. Scott Real Estate, Inc., 40 Conn. App. 616, 621, 673 A.2d 558, cert. denied, 237 Conn. 912, 675 A.2d 885 (1996). The language in the contract before us contains definitive contract language.

“It is the general rule that a contract is to be interpreted according to the intent expressed in its language and not by an intent the court may believe existed in the minds of the parties.” (Internal quotation marks omitted.) Id. “A contract is to be construed as a whole and all relevant provisions will be considered together. ... In giving meaning to the terms of a contract, we have said that a contract must be construed to effectuate the intent of the contracting parties. . . . The intention of the parties to a contract is to be determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. ... In interpreting contract items, we have repeatedly stated that the intent of the parties is to be ascertained by a fair and reasonable construction of the written words and that the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms.” (Citation omitted; internal quotation marks omitted.) HLO Land Ownership Associates Ltd. Partnership v. Hartford, 248 Conn. 350, 356-57, 727 A.2d 1260 (1999).

Here, the fact finder found that the parties contemplated an agreed price for the insurance coverage, which included a minimum payment. The trier also concluded that the term “minimum earned premium” was not ambiguous, as the defendant contends. During the trial, the defendant did not suggest an alternative meaning for the term, but claimed that the term had not been adequately explained before the defendant entered into the agreement.

“A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings.” Marcolini v. Allstate Ins. Co., 160 Conn. 280, 284, 278 A.2d 796 (1971). A party may not assert as a defense to an action on a contract that it did not understand what it was signing. “It is the general rule that a contract is to be interpreted according to the intent expressed in its language and not by an intent the court may believe existed in the minds of the parties.” Levine v. Massey, supra, 232 Conn. 278. “The court may not relieve a party competent to contract from an improvident agreement.” Parks v. Baldwin Piano & Organ Co., 262 F. Sup. 515, 520 (D. Conn.), aff'd, 386 F.2d 828 (2d Cir. 1967).

On the basis of our review of the contract, we conclude that the court properly affirmed the fact finder’s determination that the term “minimum earned premium” was not ambiguous.

II

In its second claim, the defendant maintains that the trial court failed to apply § 38a-160 et seq. to the circumstances of this case. We decline to review this issue. Whether the statutory provisions apply here depends on the facts found by the fact finder, specifically, whether the plaintiff was an insurance agent or broker to which the statute applied or whether it was an agent of the financing agency that the defendant intended to use to pay the annual premium. The parties failed to provide the trial court with a transcript of the hearing before the fact finder. The court cited Beizer v. Goepfert, 28 Conn. App. 693, 706-707, 613 A.2d 1336, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992), cert. denied, 507 U.S. 973, 113 S. Ct. 1416, 122 L. Ed. 2d 786 (1993), for the proposition that because the defendant did not provide a transcript of the hearing before the fact finder, it may be “assumed that such a transcript [was] not crucial to the objections to the fact finder’s report.” The court also stated that “[i]t is impossible for a reviewing court, without a transcript, to determine whether the subordinate facts found by the fact finder are supported by the evidence. See Meadows v. Higgins, 249 Conn. 155, 170 n.10, 733 A.2d 172 (1999).”

On appeal to this court, however, the defendant has provided a transcript of the hearing before the fact finder for our review. In this instance, the trial court sat as an appellate tribunal to review the fact finder’s decision. On appeal here, the defendant asks this court to review the actions of the trial court. It is inherently unfair to ask this court to rule on the propriety of the trial court’s judgment and to provide this court with information that was not before the trial court. For this court to review the transcript and judge the trial court’s decision is appeal by ambuscade, a practice to which we do not adhere; see Baker v. Cordisco, 37 Conn. App. 515, 522, 657 A.2d 230, cert. denied, 234 Conn. 907, 659 A.2d 1207 (1995); unless a manifest injustice would otherwise occur.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-549n provides in relevant part: “In accordance with the provisions of section 51-14, the judges of the Superior Court may malee such rules as they deem necessary to provide aprocedure in accordance with which the court, in its discretion, may refer to a fact-finder for proceedings authorized pursuant to this chapter, any contract action pending in the Superior Court, except claims under insurance contracts for uninsured and or underinsured motorist coverage, in which only money damages are claimed and which is based upon an express or implied promise to pay a definite sum, and in which the amount, legal interest or property in controversy is less than fifty thousand dollars exclusive of interest and costs. . . .”

       The defendant has not briefed this issue and we, therefore, deem it abandoned. See Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 351, 735 A.2d 357, cert. denied, 251 Conn. 916, 740 A.2d 864 (1999).

       General Statutes § 38a-160 et seq. pertains to insurance premium finance companies.

       The defendant admitted this allegation in its answer to the complaint.


author: PETERS, J.

text:
    STATE OF CONNECTICUT v. STEPHEN NESTERIAK
    (AC 20262)
    Landau, Pellegrino and Peters, Js.
    Argued September 22
    officially released November 7, 2000

      Dominick J. Thomas, Jr., for the appellant (defendant).

      Robin S. Schwarts, special deputy assistant state’s attorney, with whom, on the brief, were Mary M. Gal-vin, state’s attorney, Francis J. McQuade, supervisory assistant state’s attorney, and John Kerwin, assistant state’s attorney, for the appellee (state).
   Opinion

PETERS, J.

This case arises out of the operation of an emergency vehicle by the defendant, Stephen Nesteriak, an assistant fire chief, on his way to the site of a fire emergency. En route, the defendant drove the emergency vehicle with its emergency lights on and its siren in use. The dispositive issue is whether, without a finding that the defendant was driving at an unsafe speed or recklessly, he can be held criminally liable pursuant to General Statutes §§ 14-232 and 14-235 for swerving briefly into the lane of oncoming traffic across the double yellow line on the road. Contrary to the conclusion of the trial court, we hold that, under the circumstances of this case, General Statutes § 14-283 (b) (4) shields the defendant from criminal liability. Accordingly, we reverse the judgment of the trial court.

Before the trial, the state withdrew a count charging the defendant with reckless driving in violation of General Statutes § 14-222. After the trial, the court acquitted him of two other charges: (1) traveling unreasonably fast in violation of General Statutes § 14-218a and (2) illegal operation of an emergency vehicle in violation of § 14-283 (b). See footnote 3.

After a court trial, the defendant was convicted of having committed two infractions: (1) improper passing in violation of § 14-232 and (2) improper driving on the left side of the highway on a curve in violation of § 14-235. The court declined the defendant’s request to articulate its reason for enforcing §§ 14-232 and 14-235 despite the provisions of § 14-283 (b) (4).

The relevant facts are largely undisputed. The court’s oral decision and the record establish that, on July 9, 1998, in Shelton, the defendant operated his emergency vehicle with its siren and lights on. On his way to the fire emergency, in order to pass a motorcycle, he crossed the double yellow center line while he was entering a curve on the road at a place where his line of sight was partially obscured. In so doing, he forced Sara Cayer, a driver in the oncoming lane, to pull off to the side of the road, to her distress, but without physical injury to her, her passenger or her vehicle. Although Cayer had heard the defendant’s siren earlier, she had decided at that time not to pull her vehicle over but to be on the alert. When, upon seeing the defendant’s vehicle, she did pull over, the defendant’s vehicle was some 350 to 400 feet away.

On the basis of these facts, the court concluded that the defendant was guilty of violating §§ 14-232 and 14-235 because he had operated his vehicle without due regard for the safety of others. Even in the absence of actual injury to person or property, the court found that the defendant could not safely assume that his siren would give a sufficiently timely warning to other traffic to avoid any possible hazard. The court assigned no significance to Cayer’s testimony that the siren was in fact audible at an earlier time and that she chose not to pull her vehicle over at that time, despite the terms of General Statutes § 14-283 (e). See footnote 3. Furthermore, the court expressly declined to rule on the defendant’s assertion that the operator of an emergency vehicle may disregard statutes such as §§ 14-232 and 14-235, which govern the direction of movement. General Statutes § 14-283 (b) (4); see footnote 3. Viewing the evidence as a whole, the court found that the defendant was driving unsafely because he had created a risk of injury to persons or property. The court ordered the defendant to pay fines totalling $150.

On appeal, the defendant’s principal claim is that his conviction must be set aside because § 14-283 (b) (4) provides him immunity from criminal liability for violating §§ 14-232 and 14-235. We agree.

The parties agree that the manner in which the defendant drove his emergency vehicle implicated the provisions of §§ 14-232 and 14-235. Neither side disputes that these statutes govern “direction of movement or turning in specific directions” under General Statutes § 14-283 (b) (4).

The state, however, disputes the defendant’s claim that the immunity conferred by § 14-283 (b) (4) governs here. It claims that § 14-283 (b) (4) is to be read together with General Statutes § 14-283 (d), so as to require the conclusion that safety concerns override the immunity conferred by the prior clause. Specifically, although § 14-283 (b) (4) permits the operator of an emergency vehicle, with lights flashing and siren on, to “disregard statutes, ordinances or regulations governing direction of movement or turning in specific directions,” § 14-283 (d) requires such an operator “to drive with due regard for the safety of all persons and property.” It is also noteworthy that General Statutes § 14-283 (b) (3) allows the operator to “exceed . . . speed limits ... as long as he does not endanger life or property by so doing . . . .” Finally, none of the immunity provisions contained in § 14-283 confers express authority on such an operator to drive in violation of statutes to which § 14-283 (b) does not address itself.

Section 14-283 is not a model of the draftsman’s art. It is axiomatic that, in adjudicating a question of statutory construction, we seek to ascertain the intent of the legislature. State v. Valinski, 254 Conn. 107, 121, 756 A.2d 1250 (2000). In pursuit of this inquiry, we read a statute in its entirety and, in so doing, presumptively give greater weight to specific provisions governing the subject matter than to general language of the same statute that might otherwise be controlling. Gifford v. Freedom of Information Commission, 227 Conn. 641, 652, 631 A.2d 252 (1993); Hollenbeck v. St. Mark the Evangelist Corp., 29 Conn. App. 618, 624, 616 A.2d 1170 (1992).

Applying these maxims of statutory construction to § 14-283, we conclude that we must focus our attention on subsection (b), which includes specific provisions granting immunity to operators of emergency vehicles under some circumstances. If subsection (b) were subject to override by subsection (d), the inclusion of safety conditions in the immunity granted by subsection (b) (3) would be superfluous. See footnote 3. We construe statutes, however, so as to give effect to all of their provisions. State v. Szymkiewicz, 237 Conn. 613, 621, 678 A.2d 473 (1996); Skakel v. Benedict, 54 Conn. App. 663, 673, 738 A.2d 170 (1999).

Within subsection (b) of § 14-283, only some, but not all, clauses expressly require the operator of an emergency vehicle to take account of safety concerns. See footnote 3. Section 14-283 (b) (3) requires such an officer, if he speeds, not to “endanger life or property.” Subsection (b) (4) of § 14-283 contains no such language. It is logical to conclude that this omission was intentional.

The state argues that this logical construction of subsection (b) must be rejected because it would allow the operator of an emergency vehicle to claim immunity even if he were driving recklessly. That is not so. Driving recklessly is governed not by § 14-283 (b), but by § 14-222. As noted previously, the state ultimately chose not to charge the defendant with having violated that statute. Further, as the defendant aptly observes, § 14-283 (b) also does not immunize the operator of an emergency vehicle from criminal liability for violation of General Statutes §§ 14-215 (operating a motor vehicle while license under suspension), 14-222a (negligent homicide with a motor vehicle), 14-227a (operating a motor vehicle while under the influence of alcohol or drags) or 14-228 (leaving motor vehicle without setting brake).

We are not persuaded to engraft onto § 14-283 (b) (4) language that it does not contain. The legislature manifestly had safety concerns in mind when enacting § 14-283. We have no reason to assume that its failure expressly to include such concerns in § 14-283 (b) (4) was inadvertent. We are especially reluctant to rewrite statutory language in a case in which the evidentiary basis for the defendant’s conviction fails to establish any actual injury to person or property.

The judgment is reversed and the case is remanded with direction to render a judgment of acquittal.

In this opinion the other judges concurred.

       General Statutes § 14-232 provides in relevant part: “Except as provided in sections 14-233 and 14-234, (1) the driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance and shall not again drive to the right side of the highway until safely clear of the overtaken vehicle .... No vehicle shall be driven to the left side of the center of the highway in overtaking and passing another vehicle proceeding in the same direction unless the left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken. Violation of any provision of this section shall be an infraction.”

       General Statutes § 14-235 provides: “No vehicle shall be driven to the left side of the highway (1) when approaching the crest of a grade or upon a curve or elsewhere in the highway where a free and unobstructed view of the highway ahead may not be had for a sufficient distance to insure driving with safety or (2) when approaching within one hundred feet of or crossing any intersection or railroad grade crossing. These limitations shall not apply on a one-way street or highway so designated by any traffic authority. Violation of any provision of this section shall be an infraction.”

       General Statutes § 14-283 provides in relevant part: “(a) ‘Emergency vehicle’, as used in this section, means . . . any vehicle used by a fire department or by any officer of a fire department while on the way to a fire ....
      “(b) The operator of any emergency vehicle may (1) park or stand such vehicle, irrespective of the provisions of this chapter, (2) proceed past any red light or stop signal or stop sign, but only after slowing down or stopping to the extent necessary for the safe operation of such vehicle, (3) exceed the posted speed limits or other speed limits imposed by or pursuant to section 14-218a or 14-219 as long as he does not endanger life or property by so doing, and (4) disregard statutes, ordinances or regulations governing direction of movement or turning in specific directions.
      “(c) The exempt ions herein granted shall apply only when an emergency vehicle is making use of an audible warning signal device . . . and visible flashing or revolving lights ....
      “(d) The provisions of this section shall not relieve the operator of an emergency vehicle from the duty to drive with due regard for the safety of all persons and property.
      “(e) Upon the immediate approach of an emergency vehicle making use of such an audible warning signal device and such visible flashing or revolving lights or of any state or local police vehicle properly and lawfully making use of an audible warning signal device only, the operator of every other vehicle in the immediate vicinity shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the roadway clear of any intersection and shall stop and remain in such position until the emergency vehicle has passed, except when otherwise directed by a state or local police officer or fireman as provided in section 7-313a.
      “(f) Any officer of a fire department, may remove, or cause to be removed, any vehicle upon any public or private way which obstructs or retards any fire department, or any officer thereof, in controlling or extinguishing any fire.
      “(g) Any person who wilfully or negligently obstructs or retards any ambulance or emergency medical service organization vehicle while answering any emergency call or taking a patient to a hospital, or any vehicle used by a fire department or any officer or member of a fire department while on the way to a fire, or while responding to an emergency call, or any vehicle used by the state police or any local police department, or any officer of the Division of State Police within the Department of Public Safety or any local police department while on the way to an emergency call or in the pursuit of fleeing law violators, shall be fined not, more than fifty dollars or imprisoned not more than seven days or both.
      “(h) Nothing in this section shall be construed as permitting the use of a siren upon any motor vehicle other than an emergency vehicle, as defined in subsection (a) of this section, or a rescue service vehicle which is registered with the Department of Motor Vehicles pursuant to section 19a-181.”

       General Statutes § 14-222 provides in relevant part: “(a) No person shall operate any motor vehicle upon any public highway of the state . . . recklessly, having regard to the width, traffic and use of such highway . . . the intersection of streets and the weather conditions. . . .”

       General Statutes § 14-218aprovides in relevantpart: “(a) No person shall operate a motor vehicle upon any public highway of the state ... at a rate of speed greater than is reasonable, having regard to the width, traffic and use of highway, road or parking area, the intersection of streets and weather conditions. . . . Any speed in excess of such limits, other than speeding as provided for in section 14-219, shall be prima facie evidence that such speed is not reasonable, but the fact that the speed of a vehicle is lower than such limits shall not relieve the operator from the duty to decrease speed when a special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions.
      “(b) The State Traffic Commission shall establish a speed limit of sixty-five miles per hour on any multiple lane, limited access highways that are suitable for a speed limit of sixty-five miles per hour, taking into consideration relevant factors including design, population of area and traffic flow.
      “(c) Any person who operates a motor vehicle at a greater rate of speed than is reasonable, other than speeding, as provided for in section 14-219, shall commit the infraction of traveling unreasonably fast.”

       On appeal, the defendant relies on an unsigned transcript of the court’s oral decision. Under such circumstances, in criminal as well as in civil cases, this court may decline to undertake substantive review. Mikolinski v. Commissioner of Motor Vehicles, 55 Conn. App. 691, 698, 740 A.2d 885 (1999), cert. denied, 252 Conn. 922, 747 A.2d 518 (2000). This court, however, has the discretion to consider an appeal on its merits despite this procedural irregularity if the transcript contains a “sufficiently detailed and concise statement of the trial court’s findings.” Id.; see aliso Emerald Ridge Property Owners Assn. v. Thornton, 54 Conn. App. 6, 8, 732 A.2d 804 (1999); see generally C. Tait & E. Prescott, Connecticut Appellate Practice and Procedure (3d Ed. 2000) § 5.4, p. 203-204.
      In this case, we exercise our discretion to proceed without a signed transcript of the opinion of the trial court. This case does not turn on a significant disagreement about the lads. The dispositive issue is one of statutory construction. It is undisputed that the trial court, although asked to articulate its ruling on this issue, declined to do so. To allow the defendant’s conviction to stand not only would require him to pay fines and applicable court costs, but also would leave him with unwarranted collateral consequences, such as the obligal ion to disclose his criminal record in applications for employment or licenses. We note, finally, that although the state’s brief, in a footnote, called our attention to the defendant’s failure to provide the required signed transcript, the state has not argued that his appeal should be denied on that ground.

       The defendant derives these numbers from testimony and exhibits at trial. The state has not questioned their accuracy.

       The defendant also claims that the court improperly found the evidence sufficient to convict despite Cayer’s alleged violation of § 14-283 (e) and failed to reconcile the defendant’s conviction under §§ 14-232 and 14-235 with his acquittal of speeding as defined in § 14-218a. We need not address these claims.

       Our Supreme Court has construed § 14-283 (d) only in a civil context. Tetro v. Stratford, 189 Conn. 601, 458 A.2d 5 (1983). In Tetro, the court held that police officers conducting an otherwise valid police chase were not relieved “from their general duty to exercise due care for the safety of others. . . . [Section] 14-283 provides no special zone of limited liability once the defendants’ negligence has been established.” (Citations omitted.) Id., 609-10. In that case, the plaintiff recovered for damages resulting from substantial injuries arising out of a police pursuit of a suspected law violator.
      We need not decide in this case whether § 14-283 (d) covers criminal as well as civil liability.

       There is a suggestion in the court's oral decision that this case was prosecuted in “some sort of a current of antagonism” between the local police department and the local fire defendant.