text:
    Maureen C. Tovish et al. v. Gerber Electronics et al.
    (7303)
    Daly, Stoughton and Norcott, Js.
    Argued June 9 —
    decision released August 1, 1989

      Scott Wilson Williams, for the appellants (defendants).

      Gerard S. Spiegel, for the appellees (plaintiffs).
   Norcott, J.

This is an appeal from a decision of the compensation review division of the workers’ compensation commission sustaining the compensation commissioner’s granting of the plaintiffs’ motion to preclude.

On January 20, 1987, Richard Tovish, an employee of the defendant Gerber Electronics, suffered a fatal heart attack while shoveling snow in front of his home in Monroe. At the time of his death, the defendant Home Insurance Company was the compensation insurance carrier for Gerber Electronics.

On January 29, 1987, the plaintiffs, the widow and minor children of Richard Tovish, filed a claim for a compensable injury under the Workers’ Compensation Act. In response, the defendants filed a timely form 43-67 disclaimer pursuant to General Statutes § 31-297 (b), notifying the plaintiffs of their intent to contest liability to pay compensation. The essence of the disclaimer was as follows: “[Ijnjury (heart attack) did not arise out of or in the course and scope of employment.”

Thereafter, the plaintiffs filed a motion to preclude, alleging that the defendants’ disclaimer did not conform to General Statutes § 31-297 (b) in that it failed to disclose “the specific grounds on which the right to compensation is contested . . . .” The commissioner granted the motion to preclude and, on appeal, the compensation review division affirmed the commissioner’s decision, thereby prohibiting the defendants from defending on the merits of the plaintiffs’ claim. From this decision of the compensation review division, the defendants now appeal.

The sole issue is whether the defendants’ disclaimer sufficiently complies with the requirements of General Statutes § 31-297 (b). We find error.

In Menzies v. Fisher, 165 Conn. 338, 341-48, 334 A.2d 452 (1973), the Supreme Court set forth the standard for determining whether language employed in a form 43-67 disclaimer is sufficiently specific to meet the statutory requirements. The court held that an alleged disclaimer that stated in relevant part, “ ‘[w]e deny a compensable accident or injury’ id., 341; was a general denial and a mere conclusory statement that notified the claimant of nothing more than the fact that the liability was being contested. Id., 344. Accordingly, the court held that such a general denial was inadequate for the purposes of General Statutes § 32-297 (b). The present case, however, is clearly distinguishable from Menzies.

A claimant for workers’ compensation benefits must prove five distinct elements in order to establish a prima facie claim: (1) the workers’ compensation commission has jurisdiction over the claim; (2) the claim has been timely brought by filing a notice of claim within the requisite time period or by coming within one of the exceptions thereto; (3) the claimant is a qualified claimant under the act; (4) the respondent is a covered employer under the act; and (5) the claimant has suffered a personal injury as defined by the act, arising out of and in the course of employment. J. Asselin, Connecticut Workers’ Compensation Practice Manual (1985) § 1.

The defendants’ disclaimer clearly contests the fifth element. We are persuaded that the disclaimer was sufficient to apprise the plaintiffs that the defendants were challenging an element the plaintiffs were obliged to prove in order to meet the prima facie threshold for their claim. The denial that the personal injury, the heart attack, arose out of and in the course of employment was neither vague nor conclusory; it adequately stated what was at issue. “[T]he sufficiency of the notice under the statute must be judged not by the technical meaning which a court might attach to it, nor by a meaning the defendant subsequently discloses at the hearing, but rather by the criterion of whether it reveals to the claimant specific substantive grounds for the contest.” Menzies v. Fisher, supra, 345.

In the present case, we conclude that the defendants’ disclaimer meets the statutory requirement of supplying specific grounds for denying the claim and is not the type of general denial rejected by the Supreme Court in Menzies. The defendants, therefore, were improperly denied their right to contest the claim on the merits. Accordingly, the decision of the compensation review division cannot stand.

There is error, the decision of the compensation review division is set aside and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       See also Wilcox v. Naugatuck, 16 Conn. App. 676, 677, 548 A.2d 469 (1988), in which we recently held the following disclaimer inadequate under the Menzies standard: “Employee did not sustain accidental injury as defined by the Workers’ Compensation Act. We deny the injury, any disability and causal relation.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    State of Connecticut v. Steven Hanna
    (7386)
    Borden, Stoughton and Foti, Js.
    Argued June 15 —
    decision released August 1, 1989

      Sallie A. Blackman, for the appellant (defendant).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and Timothy Liston, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals from a judgment of conviction rendered after a trial to a jury that found him guilty of the crime of sale of cocaine, in violation of General Statutes § 21a-278 (b).

The defendant was arrested on a warrant on November 24,1987, on a charge arising out of a sale of cocaine made to an undercover police officer on March 26,1987. The arrest was made after the completion of a narcotics investigation by the statewide narcotics task force. A videotape of the transaction was filmed by police officers in a surveillance vehicle. The defendant claims that the court erred (1) in denying his motion to dismiss, (2) in overruling his objection to the videotape, and (3) in denying his request for a continuance to obtain new counsel. We find no error.

The defendant filed a motion to dismiss in which he alleged that the delay between the date of the offense and the date of his arrest made it difficult for him to recall the events of the day of the offense and to produce an alibi. In order to establish a due process violation because of prearrest delay, the defendant must show both that actual substantial prejudice resulted from the delay and that the delay was wholly unjustified, as where the state seeks to gain a tactical advantage over the defendant. State v. Littlejohn, 199 Conn. 631, 646, 508 A.2d 1376 (1986); State v. Haynes, 8 Conn. App. 361, 364, 513 A.2d 160 (1986). Mere allegations of potential prejudice or dimmed memory are insufficient. State v. Aspinall, 6 Conn. App. 546, 549, 506 A.2d 1063 (1986). The defendant did not testify and mere representations by counsel are not evidence. State v. Carsetti, 12 Conn. App. 375, 379, 530 A.2d 1095, cert. denied, 205 Conn. 809, 532 A.2d 77 (1987). The state offered evidence that the defendant was not arrested at the time of the offense because an arrest at that time would have jeopardized an ongoing investigation, a justification for the delay. There was no showing of any attempt by the state to gain some tactical advantage over the defendant through delaying his arrest. The trial court did not err in denying the defendant’s motion to dismiss.

The defendant filed a motion pursuant to Practice Book § 741 for discovery and inspection seeking an order that defense counsel be permitted “to inspect and copy or photograph at least sixty days prior to trial,” inter alia, any and all exculpatory information or materials and any and all books, tangible objects, papers, photographs and documents within the control of any state agency and intended for use as evidence. The motion was granted and the state responded in writing as follows: “Available for inspection at a mutually agreed time.” It is not disputed that neither the defendant nor his counsel sought to examine the requested material before trial. The day before the trial started, defense counsel was told of the existence of the videotape. During the trial, the court overruled the defendant’s objection that the state had failed to comply with the discovery order.

The defendant claims that the state’s response was not sufficient under Practice Book § 741. At oral argument, defense counsel conceded that the response made by the state has been found to be sufficient by our Supreme Court. State v. Palmer, 196 Conn. 157, 161, 491 A.2d 1075 (1985). That case is controlling on this issue. The defendant claims that the videotape is or might be exculpatory because the seller portrayed therein does not look like the defendant. If that is so, the difference cannot have been obvious to the state; see State v. Palmer, supra, 160; because the jury saw the videotape and convicted the defendant. Even if it were exculpatory, there was no suppression of the videotape because it was disclosed to the defendant. The trial court did not err in admitting the videotape into evidence.

The defendant claims that the court erred in refusing to grant him a continuance any longer than four hours to obtain new counsel. This claim is simply not supported by the record. The defendant informed the court after jury selection had begun that he was interested in obtaining new counsel and could probably do so by noon that day. The court said that it would permit a reasonable opportunity to obtain new counsel but that it would not permit undue delay. It granted a continuance until 2 p.m. that day, and the defendant expressed himself as satisfied with that. At 2 p.m., the defendant said that he had been unsuccessful in obtaining new counsel and asked for additional time so that he and his present counsel could get a chance to familiarize themselves with each other. He suggested that he was concerned about the manner in which his defense would be conducted. The court informed the defendant that he would not have to present a defense until after the state had completed its case and said that the trial would then be suspended for five days. The defendant agreed to this. He did not object or except to any ruling of the court. He did not request a continuance to obtain new counsel when the court reconvened at 2 p.m. The record, far from supporting the defendant’s claim, shows that the court granted the requests that he made.

There is no error.


author: Dupont, C. J.

text:
    Gerald E. Fengler et al. v. Northwest Connecticut Homes, Inc., et al.
    (7620)
    Dupont, C. J., Daly and O’Connell, Js.
    Argued June 13 —
    decision released August 1, 1989

      Robert P. Hanahan, for the appellants (plaintiffs).

      Benson A. Snaider, with whom, on the brief, was Britta Schneider, for the appellees (defendants).
   Dupont, C. J.

The dispositive issue of this appeal is whether the trial court erred when it imposed the payment of the defendants’ counsel fees as a condition of allowing the plaintiffs to amend their complaint during trial.

The facts as found by the trial court are that the defendants agreed in writing to complete certain work on the plaintiffs’ house, and that, as the defendants conceded, the value of the uncompleted work was $4067.19. Since the court found that the plaintiffs were not entitled to damages for other items not listed on the written agreement, the court rendered judgment for the plaintiffs in the amount of $4067.19. From this judgment, the plaintiffs appeal.

The plaintiffs attempted to amend their complaint during the second day of the trial. In that amendment, the plaintiffs sought to add a second count for breach of the defendants’ statutory obligations under General Statutes §§ 47-118 and 47-119. The court conditioned the “right to file this amendment . . . upon the payment to the defendants of additional expense occasioned by this late amendment and interruption of this trial.” The defendants’ counsel estimated such costs to be between $2500 and $3500. The plaintiffs elected to proceed without filing the amendment.

Practice Book § 176 provides in pertinent part: “If the amendment occasions delay in the trial or inconvenience to the other party, the court may award costs in its discretion in his favor.” General Statutes § 52-130 provides in pertinent part that “in any case when a party amends or alters any part of the pleadings or pleads anew, if it occasions any delay in the trial or inconvenience to the other party, he shall be liable to pay costs at the discretion of the court.” It is apparent from a plain reading of the procedural and statutory rules that the trial court may award attorney’s fees once an amendment has been made by a party if it causes delay in the trial or inconvenience to the other party. The rules do not, however, grant the trial court the authority to impose the payment of such fees as a condition precedent to allowing a party to amend their complaint during trial.

The defendants argue that the plaintiffs waived their right to amend their complaint. The plaintiffs, however, did not intentionally and voluntarily decide not to amend their complaint. Rather, they were faced with the Hobson’s choice of proceeding without amending their complaint or amending the complaint and facing the imposition of attorney’s fees. The court had the discretion to allow or disallow the plaintiffs’ amendment, but the court could not condition the amendment upon the payment of counsel fees. Since it cannot be known how the trial would have proceeded or what evidence would have been introduced had the plaintiffs been allowed to amend their complaint, a new trial is necessary.

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

In this opinion the other judges concurred.

       H & S Contractors, Inc., and Energy Homes, Inc., agreed to construct a residential home on land that they were to convey to the plaintiffs. The named defendant and the defendant Mark Cooper allegedly assumed the obligations of H & S Contractors, Inc., and Energy Homes, Inc.

       While their suit was pending, the plaintiffs collected $5035 from the defendants. The parties agreed that this amount should be credited against the trial court’s award. Thus, were the trial court’s judgment to remain in effect, the defendants would have overpaid the plaintiffs $967.81.

       The plaintiffs also claim on appeal that the trial court was precluded by the doctrine of judicial estoppel from limiting their claim for damages to the written agreement rather than allowing them to attempt to prove all the damages claimed under the initial construction contract. We need not reach that issue because of our disposition of the plaintiffs’ first claim.


author: Norcott, J.

text:
    Suburban Sanitation Service, Inc. v. Daniel J. Millstein et al. Daniel J. Millstein et al. v. Suburban Sanitation Service, Inc.
    (7194)
    Dupont, C. J., Stoughton and Norcott, Js.
    Argued May 10 —
    decision released August 8, 1989

      Daniel J. Millstein, with whom was Philip M. Block, for the appellants (defendants in the first case, plaintiffs in the second case).

      Patsy M. Renzullo, with whom, on the brief, was John C. Dillman, for the appellee (plaintiff in the first case, defendant in the second case).
   Norcott, J.

Daniel and Wendy Millstein appeal from a judgment rendered for Suburban Sanitation Service, Inc. (Suburban), after a jury trial on two consolidated cases. The trial court denied the Millsteins’ motion to set aside the verdict. In one case, Suburban sued the Millsteins to collect the balance allegedly due on a contract for the repair of a septic system on the Millsteins’ property. In the other case, the Millsteins brought suit against Suburban for losses they claim they suffered as a result of Suburban’s alleged negligence, breach of warranty and breach of the contract to repair the septic system.

On appeal, the Millsteins claim that the trial court erred (1) in refusing to admit parol evidence regarding the parties’ agreement, (2) in accepting a verdict that is contrary to the evidence, (3) in accepting an excessive verdict, and (4) in accepting a verdict in only one of the cases. We find error.

The Millsteins claim that it was error for the trial court to refuse to admit parol evidence on the terms of the parties’ agreement. It is undisputed that Suburban presented the Millsteins with a written proposal that the Millsteins never signed. Among other terms, the proposal contained two options for repair of the septic system: option A, a leaching field located in the backyard; and option B, a pump and pumping chamber located in the frontyard. Testimony established that the Millsteins and Suburban had agreed that the system should be located in the backyard. All parties agree that they had only an oral agreement for the repair work.

Believing that the wording of the Millsteins’ complaint limited the oral agreement to the written proposal, the trial court refused to allow parol evidence on the issues of which terms of the written proposal the Millsteins had accepted and whether such terms were only a partial integration of the entire oral agreement. We conclude that the rules regarding the admission of parol evidence were improperly applied in this case.

The Millsteins’ revised complaint alleged that they had orally accepted Suburban’s proposal to “restore the plaintiffs’ septic system to working order by performing installation and repair work, including but not limited to a leaching bed and grading of the ground above the bed for consideration of Four Thousand Five Hundred Eighty Five ($4,585.00) Dollars.” Suburban, in its answer to the revised complaint, denied the quoted paragraph “to the extent [it] is inconsistent with [the written proposal].” The quoted wording of the revised complaint is similar to, but not an exact reflection of, the language of option A in the written proposal. The main difference is that the allegation indicated that the work Suburban was to do to repair the system was “not limited to” the installation of the bed and the grading of the ground. The Millsteins’ revised complaint, which alleges an oral acceptance of at least some part of the written proposal, therefore does not constitute an admission that the written proposal reflected the entire oral agreement between the parties.

At trial, the Millsteins attempted to present evidence that the written proposal, which they claimed they only partially accepted, was only a part of the agreement between the parties. The trial court refused to allow evidence of any agreement outside of the parameters of the written proposal.

“The parol evidence rule is a rule of substantive law which provides that ‘[w]hen two parties have made a contract and have expressed it in a writing to which they have both assented as the complete and accurate integration of that contract, evidence, whether parol or otherwise, of antecedent understandings and negotiations will not be admitted for the purpose of varying or contradicting the writing.’ 3 Corbin, Contracts § 573.” Greene v. Scott, 3 Conn. App. 34, 36, 484 A.2d 474 (1984). The rule applies to integrated oral agreements as well as written agreements. See Damora v. Christ-Janer, 184 Conn. 109, 441 A.2d 61 (1981). Whether a writing is a complete integration of an agreement, “ ‘the final repository of the oral agreements and dealings between the parties depends on their intention, evidence as to which is sought in the conduct and language of the parties and the surrounding circumstances. If the evidence leads to the conclusion that the parties intended the [writing] to contain the whole agreement, evidence of oral agreements is “excluded,” that is, excluded from consideration in the determination of the rights and obligations of the litigants, even though it is admitted on the issue of their intention. Cohn v. Dunn, 111 Conn. 342, 346, 149 A. 851 [1930].’ Shelton Yacht & Cabana Club, Inc. v. Suto, 150 Conn. 251, 254-55, 188 A.2d 493 (1963).” Damora v. Christ-Janer, supra, 113-14; Connecticut Savings Bank v. Central Builders’ Supply Co., 4 Conn. App. 332, 333-34, 494 A.2d 601, cert. denied, 197 Conn. 805, 499 A.2d 56 (1985). Whether there is a complete integrated agreement is “to be determined by the court as a question preliminary ... to application of the parol evidence rule.” 2 Restatement (Second), Contracts §§ 209 (2), 210 (3).

“ ‘[W]hat the parties intended to encompass in their contractual commitments is a question of the intention of the parties, and an inference of fact.’ ” Gallicchio Bros., Inc. v. C & S Oil Co., 191 Conn. 104, 107, 463 A.2d 600 (1983), quoting Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981). Under the circumstances of this case, the trial court should have allowed the Millsteins to present evidence of the parties’ intent that the accepted terms of the written proposal were only a partial integration of their oral agreement. Because the court prevented the jury from hearing and deciding material issues of fact, the verdict must be set aside and a new trial ordered.

The Millsteins also claim error in the form of the verdict. Although not raised in the trial court as a basis for the motion to set aside the judgment, because of the importance of the issue; see Riccio v. Abate, 176 Conn. 415, 418 n.1, 407 A.2d 1005 (1979); and because the issue may recur on retrial; State v. Casey, 201 Conn. 174, 513 A.2d 1183 (1986); State v. McDonough, 9 Conn. App. 631, 633, 521 A.2d 160 (1987); we will address this claim.

The trial court consolidated the two cases involved in this appeal pursuant to Practice Book § 84A. After the parties had presented their evidence, the court instructed the jury on what each party must prove in order to prevail in each action. The court then gave the jury two verdict forms, each bearing the case names and docket numbers of both actions. One form specified a verdict for Suburban, the other a verdict for the Millsteins. Each form had a blank space in which the jury was to insert the amount of damages found for the prevailing party.

The jury returned with both forms completed. On one form, the jury indicated a verdict for Suburban with $13,190.07 in damages. On the other, the jury indicated a verdict for the Millsteins with zero damages. The trial court informed the jury that the rendering of two verdicts was improper and that the jury should deliberate further and return with only one verdict form.

The jury, as instructed, returned with one form on which it found for Suburban in the amount of $13,390.07. This verdict form, which contained both case names and docket numbers, resulted in the rendering of two judgments. The judgment files in both cases are identical and therefore improper in that the judgment in the case of Millstein v. Suburban Sanitation Service, Inc., indicates a verdict for Suburban for $13,390.07. Because Suburban filed no counterclaim in that case, such a judgment is erroneous.

The verdict in a case must conform to the issues raised by the pleadings; Donnelly v. Ives, 159 Conn. 163, 268 A.2d 406 (1970); and litigants have a right to have the jury determine their respective claims. Rosenblatt v. Berman, 143 Conn. 31, 119 A.2d 118 (1955). Acceptance of the verdict signifies that the court views it as satisfactorily responding to the issues in the case. State v. Martin, 189 Conn. 1, 4 n.1, 454 A.2d 256, cert. denied, 461 U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306 (1983). Without speculating on the intentions of the jury, the verdict form returned by the jury may reasonably be viewed as a verdict in the case of Suburban Sanitation Service, Inc. v. Millstein. We conclude, therefore, that the jury failed to return a verdict in the case of Millstein v. Suburban. “A verdict must not only be intelligible, it must be capable of supporting a judgment.” Labatt v. Grunewald, 182 Conn. 236, 238 n.1, 438 A.2d 85 (1980). As Practice Book § 84A requires that consolidated cases retain separate files and documentation, a separate judgment is required in each case. In a jury trial, the judgment must be based on a verdict. Because the jury, on the erroneous instructions of the court and supplied with improper verdict forms, rendered no verdict in the Millsteins’ case against Suburban, there is no verdict capable of supporting a judgment.

On retrial, the court must provide appropriate verdict forms and instructions. There must be separate verdict forms for each case, bearing only one case name and docket number. The jury must be instructed to return two verdict forms, one for each case. A judgment must be rendered on each case individually based on the verdict in each case.

There is error, the judgments are set aside and the cases are remanded for a new trial.

In this opinion the other judges concurred.

       Practice Book § 84A provides: “Whenever there are two or more separate actions which should be tried together, the court may, upon the motion of any party or upon its own motion, order that the actions be consolidated for trial. The court files in any actions consolidated pursuant to this section shall be maintained as separate files and all documents submitted by counsel or the parties shall bear only the docket number and case title of the file in which it is to be filed.”

       After the reading of both verdict forms, the jury foreman interjected that “[t]he reason two verdicts were submitted was because we were unsure whether there were two cases or one for the combination.” The court responded: “I really think what I should do is send you back to deliberate. It should either be one or the other because — I tell you what, go back in there. I want to discuss the matter with counsel, and then I will recharge because I think we don’t want to have any confusion here.”
      After a recess during which the court met with counsel in chambers, the court stated to the jury: “I can see the confusion, and I’ve discussed it with counsel. I think what I’m going to do is I’m going to have you go back in the jury room. I’m going to give you back your two verdict forms. You should only come in with one verdict form because it looks — it’s very possible that if — like, for instance, you found for the Millsteins with no dollars damages. It’s possible that you found in favor of the Millsteins, but you couldn’t figure out what the damages should be which would give a conflicting one with the other one. So that if you meant a verdict for Suburban Sanitation, you should only bring in that one. If you meant a verdict for the Mill-steins, you should only bring in that one.
      “So, let me — to be absolutely safe, to be sure we’re doing it right, I’m going to give these back to you, and you can decide what to do. Just bring one back. Okay? And I appreciate your bringing that up because that was something that had gone through my mind, that that could be a conflicting verdict.”

       The verdict form accepted by the court stated:
      “STATE OF CONNECTICUT
      #CV 86 32 06 23 SUPERIOR COURT
      SUBURBAN SANITATION SERVICE, INC.
      vs.
      DANIEL MILLSTEIN, ET AL JUDICIAL DISTRICT
      HARTFORD/NEW BRITAIN
      #CV 86 32 06 78
      DANIEL MILLSTEIN, ET AL AT HARTFORD
      vs.
      SUBURBAN SANITATION SERVICE, INC.
      MAY 20, 1988
      VERDICT FOR SUBURBAN SANITATION SERVICE. INC.
      In this case the Jury finds the issues for Suburban Sanitation Service, Inc. as against Daniel Millstein, et al and therefore finds for Suburban Sanitation Service, Inc. to recover of Daniel Millstein, et al $13,390.07 dollars damages.
      s/Daniel R. Barface FOREPERSON”

       This procedural confusion involving these cases extends to the filing of this appeal as well. The Millsteins have appealed the judgments in both cases but brought the appeal in each case as defendants appealing from a judgment for the plaintiff.

       This conclusion seems clear even though the form was improper and somewhat ambiguous in that it contained both case names and docket numbers and then recited in the text: “In this case the Jury finds . . . .” (Emphasis added.)

       We will not assume that in finding for Suburban in Suburban Sanitation Service, Inc, v. Millstein, the jury also found against the Millsteins in Millstein v. Suburban Sanitation Service, Inc. Beyond the fact that there must be two verdicts rendered when two cases have been consolidated, the statement of the jury foreman; footnote 2, supra; regarding the first verdict rendered indicates confusion on the part of the jury as to the status of the two cases. As the Supreme Court stated in Malmberg v. Lopez, 208 Conn. 675, 680-81, 546 A.2d 264 (1988), it would be error for this court not to recognize the inherent ambiguity in an award of zero damages for a plaintiff.


author: Daly, J.

text:
    Caroline S. Di Diego v. Francis Zarro et al.
    (7010)
    Dupont, C. J., Borden and Daly, Js.
    Argued June 7 —
    decision released August 8, 1989

      Marshall Goldberg, for the appellant (plaintiff).

      Alexander H. Schwartz, for the appellees (named defendant et al.).
   Daly, J.

The plaintiff appeals from the trial court’s judgment denying her motion for a deficiency judgment. She claims that the court erred (1) in failing to recognize that a deficiency judgment depends upon the value of the premises at the date of redemption, (2) in attacking its own prior finding as to the value of the premises on the date of foreclosure, and (3) in precluding her cross-examination of a defense witness. We find no error.

The following facts are relevant to the disposition of this appeal. On April 19, 1985, the defendants executed a promissory note in favor of the plaintiff in the amount of $354,450. The note was secured by a mortgage on premises known as 87 High Ridge Avenue, Ridgefield. The note stated that it was fully due and payable on August 1, 1985.

The plaintiff instituted a foreclosure action by writ dated March 4,1986, based on the defendants’ failure to pay the note in accordance with its terms. On July 6, 1987, the court granted the plaintiff’s motion for strict foreclosure. On that date, the court found the amount of the debt owed to the plaintiff to be $407,671.12, and further found that she was entitled to fees for an appraisal and title search. The court also found the fair market value of the premises to be $1,700,000. A law day for the defendants was set for November 10,1987.

The defendants did not redeem on their law day and, consequently, the title to the premises vested absolutely in the plaintiff on November 14, 1987, subject to certain prior encumbrances. On November 23, 1987, the plaintiff filed a motion for a deficiency judgment, pursuant to General Statutes § 49-14 (a). After a hearing on April 11, 1988, the court denied the motion. The court later filed an articulation of its decision.

The plaintiff’s first claim of error concerns the proper date on which premises should be valued for a deficiency judgment. Her second claim is that the court’s finding as to the value of premises made on the motion for deficiency judgment collaterally attacked its prior finding as to value made in the foreclosure judgment. Because the disposition of these two issues depends upon the correct date on which a court must consider the value of the premises to determine whether a deficiency exists, we consider these claims together.

Certain additional facts are relevant here. At the hearing on the motion for judgment of foreclosure, the court based its decision as to the value of the premises on that date on the testimony of the plaintiffs witness, Josephine Hall, an appraiser.

In her motion for a deficiency judgment, the plaintiff alleged that on the date title vested in her, the premises’ value had substantially decreased from its prior value, as found by the court in the foreclosure judgment. At the hearing, the plaintiff presented the testimony of Joan O’Neil, a residential real estate broker. O’Neil expressed her opinion that, as of November 14, 1987, the value of the property was $1,600,000. She attributed the $100,000 diminution in value to the October, 1987 “stock market crash” and the resulting downturn in real estate sales in the Fairfield County area.

The defendant presented the testimony of Stanley Gniazdowski, a real estate counselor and a teacher of real estate valuation. Gniazdowski testified that, on November 14, 1987, the property had a value of $1,725,000. He agreed with O’Neil that the property had diminished in value since the date of the foreclosure. Gniazdowski, however, had appraised the premises at $1,900,000 as of April, 1987, and it was his opinion that the premises’ value had diminished to $1,725,000 as of November 14, 1987.

In its articulation of the denial of the plaintiffs motion, the court stated that “the better and weightier evidence establishes a value as of the date of the actual foreclosure (law day) of one million seven hundred twenty-five thousand ($1,725,000) dollars. It accordingly finds, as it did as on April 11, 1988, that the plaintiff is not entitled to a deficiency judgment.”

General Statutes § 49-14 (a) permits any party to a mortgage foreclosure, within thirty days after the time for redemption has passed, to file a motion seeking a deficiency judgment. The statute is “ ‘solely a provision for appraisal and deficiency proceedings following foreclosure. The initial determination of strict foreclosure has already taken place, as it must before the statute comes into play.’ (Emphasis in original.) Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 568, 409 A.2d 1020 (1979).” Maresca v. DeMatteo, 6 Conn. App. 691, 694, 506 A.2d 1096 (1986). The underlying purpose of the statute is to require a mortgagee who forecloses to apply the value of the property to the outstanding debt before seeking a deficiency. Id.

The value of the premises on the date that title becomes vested in the mortgagee determines whether the mortgagee is entitled to a deficiency judgment. Id. The articulation clearly indicates that the court in this case properly determined the value of the premises as of November 14, 1987, the date on which title vested in the plaintiff.

The trial court was presented with conflicting evidence as to the value of the premises and it is apparent that credibility was a crucial factor. Faced with a conflict between these two experts, the court, as the trier of fact, was privileged to adopt the testimony it believed to be more credible. Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 183, 491 A.2d 1084, cert. denied, 477 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985). The court in this case expressly found the testimony of Gniazdowski more credible. “The acceptance or rejection of the opinion of the expert witness is a matter peculiarly within the province of the trier of fact and its determination will be accorded great deference by this court.” Sorenson Transportation Co. v. State, 3 Conn. App. 329, 332, 488 A.2d 458, cert. denied, 196 Conn. 801, 491 A.2d 1105 (1985), citing Johnson v. Healy, 183 Conn. 514, 515-16, 440 A.2d 765 (1981). Neither § 49-14 nor any case examining it states that the finding of deficiency is based upon the difference between the debt and the value of the property on the date of foreclosure, despite the plaintiffs claim. It is the difference between the debt and the value on the date title vests in the mortgagee that triggers a finding of deficiency. It is irrelevant to the determination of a deficiency under § 49-14 that the court had placed a prior value on the premises for purposes of the earlier foreclosure proceeding. We conclude that the court did not err in finding the value of the premises to be.$l,725,000 on the date plaintiff received title, and that she was not therefore entitled to a deficiency judgment.

The plaintiffs final claim is that the court erred in precluding her cross-examination of Gniazdowski on the issue of the value of the premises in July, 1987. Any error in precluding such inquiry was harmless in light of the fact that, in determining deficiency, the court is concerned only with the value of the property on the date title vests in the mortgagee, and not the value on the date of foreclosure.

There is no error.

In this opinion the other judges concurred.

       The other defendants in this case hold encumbrances on the property subsequent to that of the plaintiffs. As used in this opinion, the term “defendants” refers only to Francis Zarro and Helaine Zarro.


text:
    State of Connecticut v. James Klauss
    (7433)
    Dupont, C. J., Stoughton and Norcott, Js.
    Argued May 10 —
    decision released August 8, 1989

      Edward E. Moukawsher, for the appellant (defendant).

      Carolyn K. Longstreth, deputy assistant state’s attorney, with whom, on the brief, were C. Robert Satti, Sr., state’s attorney, and Lawrence J. Tytla, assistant state’s attorney, for the appellee (state).
   Norcott, J.

The defendant appeals from a judgment of conviction following a conditional plea of nolo contendere, entered pursuant to General Statutes § 54-94a, to a substitute information charging him with one count of possession of marihuana in violation of General Statutes § 21a-279c.

On September 28, 1987, the city of Groton police received information that the defendant was intoxicated, armed with a gun and possibly suicidal. Responding to the call, the police entered his home without a warrant and, while searching for him in his bedroom, discovered marihuana and drug paraphernalia. They later arrested the defendant on charges of possession and cultivation of marihuana and possession of drug paraphernalia.

Prior to trial, the defendant filed a motion to suppress all tangible evidence taken from his premises pursuant to the warrantless entry. The trial court denied the motion on the ground that the entry of the defendant’s home was justified under the emergency exception to the warrant requirement. Thereafter, the defendant entered his conditional plea.

The defendant’s claim on appeal is that the trial court erred in holding that the warrantless, nonconsensual search of his home did not violate the federal and state constitutional guarantees against unreasonable searches and seizures. We find no error.

From the evidence adduced at the suppression hearing, the court could reasonably have found the following facts. On September 28,1987, the defendant’s girl friend, Carol Oliver, who was hospitalized at the time, had several telephone conversations with the defendant during the afternoon and evening. The parties argued about the breakup of their relationship, and Oliver believed that, besides being angry and upset, the defendant was becoming increasingly intoxicated and might do harm to himself. She also believed that she heard the sound of a gun during one of their conversations. Oliver conveyed her concern about the defendant to some friends visiting her at the hospital. Later, she contacted her brother and the defendant’s brother, asking each to check on the defendant. The friends at the hospital spoke to a security guard who in turn contacted the Groton police.

On the basis of the information received from the hospital security guard, the Groton police dispatcher issued a radio transmission concerning a possible suicide attempt involving weapons at the defendant’s home. Detective Martin Viscione and Officer Dale Grenstiner proceeded to the defendant’s home, a duplex located at 70 Godfrey Street, where they cleared the area and barricaded the street with police vehicles.

In the interim, the police dispatcher had spoken to Oliver and learned that the defendant, whom Oliver identified as James Klauss, had reason to be very depressed, was intoxicated and possessed either a shotgun or a small handgun and that Oliver had heard two shots fired. On the basis of that conversation, the dispatcher issued a second transmission indicating that shots had been fired and that the person in need of assistance had been identified as James Klauss. Grenstiner and Viscione received that information and requested the presence of Police Chief Robert Laurie on the scene. After Laurie arrived, the police made the decision to enter the house.

Beforé the police entered, however, the defendant’s housemates, Holly Retta and Arthur Geyer, arrived at the police barricade. They were followed by the defendant’s brother and Oliver’s brother. The housemates identified themselves to the police and indicated that they and the defendant shared the rent for the left side of the duplex. They informed the police that they had unsuccessfully tried to prevent the defendant from leaving the house, that they had left the house to find him, and that they believed that the defendant was not in the house. They stated that guns were present in the house, and that although they had heard the pump action of the defendant’s shotgun, no shots had been fired. Retta gave the police a description of the defendant’s car, which was not in the driveway or in front of the duplex.

The police obtained the key to the house from Retta but, after unsuccessfully attempting to open the door with the key, they entered by breaking a windowpane in the door and reaching in to unlock it. The police then made a cautious search of the premises for the defendant. The search included the defendant’s bedroom, considered by his housemates to be his private room. Although they did not find the defendant, the police discovered in plain view the drug paraphernalia and marihuana that they seized. Shortly after the police entry, police officers from the town of Stonington discovered the defendant’s car parked in that town and notified the Groton police.

The defendant contends that under these facts the police conducted an impermissible warrantless entry into his home, and that, accordingly, the trial court should have suppressed the evidence seized pursuant to that impermissible entry. We disagree.

“Warrantless searches and seizures inside a home are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). ‘ “Absent consent or exigent circumstances, a private home may not be entered to conduct a search or effect an arrest without a warrant. Steagald v. United States, 451 U.S. 204 [101 S. Ct. 1642, 68 L. Ed. 2d 38] (1981); Payton v. New York, [supra]; Johnson v. United States, 333 U.S. 10 [68 S. Ct. 367, 92 L. Ed. 436] (1948).” Donovan v. Dewey, 452 U.S. 594, 598 n.6, 101 S. Ct. 2535, 69 L. Ed. 2d 262 (1981).’ State v. Reagan, [209 Conn. 1, 8, 546 A.2d 839 (1988)]. The burden is on the state to show that an exception exists. State v. Harris, [10 Conn. App. 217, 224, 522 A.2d 323 (1987)].” State v. Enright, 17 Conn. App. 142, 147, 550 A.2d 1095 (1988).

The terms “exigent circumstances” and “emergency doctrine” are often used interchangeably when discussing warrantless entries into a home. The term “exigent circumstances,” however, generally refers to “ ‘those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization.’ United States v. Campbell, 581 F.2d 22, 25 (2d Cir. 1978).” State v. Guertin, 190 Conn. 440, 447, 461 A.2d 963 (1983); State v. Reagan, 18 Conn. App. 32, 556 A.2d 183 (1989); State v. Harris, supra, 227. The “emergency” exception refers to another type of warrantless entry that evolves outside the context of a criminal investigation and does not involve probable cause as a prerequisite for the making of an arrest or the search for and seizure of evidence. The present case is of the latter type.

This second type of warrantless entry was recognized by the United States Supreme Court in Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978), and adopted by the Connecticut Supreme Court in State v. Magnano, 204 Conn. 259, 528 A.2d 760 (1987). “In Mincey v. Arizona, [437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978)], the United States Supreme Court recognized the exigency or emergency exception to the warrant requirement. The court held that the fourth amendment does not bar police officers, when responding to emergencies, from making warrantless entries into premises and warrantless searches when they reasonably believe that a person within is in need of immediate aid. Id., 392-93.” State v. Magnano, supra, 266.

Our Supreme Court has defined the standard for determining what constitutes exigent circumstances allowing warrantless entries for arrests, searches and seizures based on probable cause of criminal activity. In State v. Guertin, supra, 453, the court adopted the so-called “Canby rule” which requires that, under the totality of the given circumstances, a police officer has reasonable grounds to believe that if an immediate arrest were not made, the accused would be able to destroy evidence, flee or otherwise avoid capture, or might, during the time necessary to procure a warrant, endanger the safety or property of others. The test is an objective one. “ ‘[I]ts preeminent criterion is what a reasonable, well-trained police officer would believe, not what the arresting officer actually did believe.’ ” (Emphasis in original.) Id., quoting State v. Canby, 252 S.E.2d 164, 167 (W. Va. 1979); State v. Enright, supra, 148.

The present case raises the question of what test is to be employed in determining the reasonableness of the police officer’s belief that a person within the home is in need of immediate aid — the situation in which that officer is faced with an emergency not involving a need for an immediate arrest or a search for evidence. We conclude that this test should be no less stringent than that adopted in Guertin.

In reaching this conclusion, we note that there is a significant difference between a police entry for the purpose of making an arrest or searching for evidence incident to a criminal investigation and an entry for the purpose of rendering aid or saving a human life. Although probable cause is the standard by which we judge the former situation, reasonable belief determines the latter. Mincey v. Arizona, supra, 392; State v. Magnano, supra. Although it is desirable to encourage the police to make valid emergency entries into homes to protect lives, we cannot ignore the fourth amendment’s protections against unreasonable searches and seizures. “Physical entry of the home is the chief evil against which the wording of the fourth amendment is directed.” State v. Guertin, supra, 447, citing Warden v. Hayden, 387 U.S. 294, 301, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967). Any valid entry into a home conceivably brings the “plain view” doctrine of seizure of evidence into play. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); State v. Ruth, 181 Conn. 187, 193, 435 A.2d 3 (1980). It is imperative, therefore, that the test for the. police officer’s belief that an emergency does in fact exist, a belief that constitutes the officer’s ticket of entry into the home, be at least as stringent as the objective test required for a warrantless entry for exigent circumstances in the context of a criminal investigation. Thus, the test to be employed in cases such as the present one is whether, under the totality of the circumstances, a well-trained police officer reasonably would have believed that a warrantless entry was necessary to assist a person inside in need of immediate aid.

Against this test, we conclude that the trial court did not err in finding that the emergency doctrine justified the entry. The court found that the police believed that the defendant was in immediate need of aid, that their only purpose in entering the apartment was to protect the defendant and others, and that the defendant had not been located at the time of their entry into his home.

Our review of the record reveals that, on the evening of September 28,1987, the police hastened to find the defendant, whom they had every reason to believe was despondent, intoxicated, armed and possibly suicidal. Additionally, the police had received information that a gunshot had either been fired or that a shotgun had been activated by a pumping action. When the police arrived at the defendant’s home, they were uncertain as to his whereabouts. Although the defendant’s housemates told the police that they had seen him leave the house before the police arrived, they conceded that they had left the house after the defendant’s departure and that, according to the testimony, “[h]e could have come back by the time that we went to the police station and back.” It is clear that the police had a reasonable basis to believe that an emergency existed and that the defendant might well have been inside the apartment in need of immediate aid.

There also is no evidence that the entry was pretextual. The trial court found that the defendant was unknown to the police prior to the night in question, that he was suspected of nothing and that the only initial concern the police had for him was to render him assistance. “ ‘The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.’ Wayne v. United States, 115 U.S. App. D.C. 234, 241, 318 F.2d 205, 212 (opinion of Burger, J.)” Mincey v. Arizona, supra, 392-93. As long as there is an objectively reasonable belief upon which the entry is predicated, it will be sustained even if it develops that no emergency did exist. Wayne v. United States, supra.

Once the police were inside of the defendant’s home, they were permitted to seize any evidence of an incriminating nature that was in plain view during the course of their legitimate emergency activities. Mincey v. Arizona, supra, 393; State v. Magnano, supra. The record indicates, and the trial court found, that the search for the defendant was limited to those places where he might have been hiding, and that, in the course of this activity, the police came upon the contraband in plain view. This case does not present the scenario of a prohibited general exploratory search. See Mincey v. Arizona, supra (“a warrantless search must be ‘strictly circumscribed by the exigencies which justify its initiation/ Terry v. Ohio, [392 U.S. 1, 25-26, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)]).”

The defendant also contends that the warrantless entry was nonconsensual and therefore prohibited by the fourth amendment. The trial court’s ruling regarding the emergency exception to the warrant requirement obviated the need for a finding on the consent issue. Similarly, because we have concluded that the entry was proper under the emergency doctrine, we need not reach this claim. See State v. Enright, supra, 150.

There is no error.

In this opinion the other judges concurred.

       The federal and state constitutions both prohibit unreasonable warrant-less searches of private property. State v. Zindros, 189 Conn. 228, 238, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984); State v. Enright, 17 Conn. App. 142, 147, 550 A.2d 1095 (1988). The defendant claims violations of both the federal and state constitutions. Because he has not offered a separate analysis of the state constitutional claim, however, we will not review it. State v. Magnano, 204 Conn. 259, 265 n.4, 528 A.2d 760 (1987); State v. Enright, supra, 147 n.4.

       We note that in its brief the state concedes that it has abandoned its claim that the entry was consensual.


text:
    State of Connecticut v. Robert C. Baxter
    (6999)
    Dupont, C. J., O’Connell and Foti, Js.

      Argued April 12 —
    decision released August 8, 1989

      Andrew R. Sherriff, for the appellant (defendant).

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, was Gerard P. Eisenman, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

Two issues dominate this appeal from the trial court’s judgment revoking the defendant’s probation and imposing the sentence previously suspended. The first is whether the federal constitution mandates a remand to the trial court for a new probation revocation hearing because the information charging the defendant with a violation of a condition of his probation was at variance with the affidavit upon which the arrest warrant for a violation was based, and at variance with the evidence produced by the state in support of the violation. The second issue is whether the defendant was entitled to both a preliminary hearing and a final hearing when charged with a violation of a condition of probation. A ubiquitous backdrop to both issues is whether the issues should be reviewed under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

The defendant pleaded guilty to manslaughter in the second degree on November 15, 1985, and was sentenced, pursuant to a plea agreement, to three years in prison, execution suspended after eighteen months, and five years probation. The terms of probation, signed by the defendant, were that the defendant maintain full-time employment, that he stay away from the victim’s parents, and that he abide by all of the standard conditions of probation. The parties agree that, based on the record, another condition of probation was that the defendant perform 1000 hours of volunteer work. The conditions of probation enumerated in the document signed by the defendant, however, did not include any mention of community service. After the defendant served the requisite time in prison, he was released and placed on probation. Thereafter, it was arranged that the community service be performed at the Dinan Center. Difficulties arose in the defendant’s performance of his duties because the center was fifteen miles from his home and because the scheduled days and hours for performance allegedly conflicted with his employment. In August of 1987, the defendant’s probation officer moved for a modification of the condition of probation relating to community service. The condition was modified in accordance with the request of the probation officer on August 19, 1987, by the court, Corradino, J. The modification, in relevant part, is as follows: “(1) 6 hours of community service per week (total = 1000 hours) otherwise vop.” The defendant signed the condition as modified on October 6,1987. On December 8,1987, the defendant was arrested, and the information stated that the arrest was for a “violation of the terms of probation in a judgment dated 12/6/85 by the Honorable Alvin Rottman.” On the same day, the defendant was released on bond. A probation revocation hearing was held in March, 1988.

The application for the arrest warrant was based upon an affidavit of the defendant’s probation officer. The application was also reviewed and signed by the chief probation officer. The affidavit stated that the special condition relating to community service had been modified by Corradino, J., on August 19,1987, and the affidavit contained twenty paragraphs of fact-specific allegations relating to the alleged violation of the modified condition of probation.

Thus, the information charged the defendant with a violation of the conditions imposed by Rottman, J., but the affidavit upon which the arrest warrant was based and signed asserted a violation of the modified condition as ordered by Corradino, J. The trial court, Geen, J., which conducted the revocation of probation hearing, stated that the issue was whether the defendant had performed six hours (per week) of community service, thus referring to the modified condition imposed by Corradino, J. The parties and the court conducted the hearing based on whether the defendant had or could have complied with the modified condition of probation as to community service.

The charge set forth in the information — a violation of an order of one court — was not the charge — a violation of an order of another court — upon which the hearing was based. The state does not deny that that is so, but argues that because the defendant did not contest the specificity of the information in the trial court, he is precluded from doing so on appeal, and claims that no review should be accorded the claim under State v. Evans, supra.

State v. Thurman, 10 Conn. App. 302, 306-307, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987), establishes a four part test for determining the reviewability of an Evans claim. The defendant has characterized his claim as one of due process, a violation of his constitutional rights, and has, therefore, passed the first prong of the Thurman test. The second question under Thurman is whether the defendant, as a probationer, has a constitutional claim based upon a limited review of the record. Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1972), answers that question in the affirmative. A probationer has a minimal guarantee of due process; id., 782; and a limited review of the record reveals that the defendant’s claim is supported. Due process requires that a defendant be given notice of the specific charge against him or her. See State v. Steve, 208 Conn. 38, 47, 544 A.2d 1179 (1988). The claim is reviewable, therefore, and we review it to determine whether, in fact, there was any deprivation of a constitutional right.

We conclude that there was not a deprivation of a constitutional right because the defendant was not prejudiced by the variance between the information and the affidavit that supported the arrest warrant. See State v. Steve, supra; State v. Dahlgren, 200 Conn. 586, 597, 512 A.2d 906 (1986). The defendant’s conduct of his defense was based on the warrant and its accompanying affidavit, as was the state’s presentation of its case for the revocation of the defendant’s probation. The affidavit on which the warrant was based was extremely specific, and the hearing was held based on the allegations in the affidavit. The defendant, therefore, was not prejudiced by the lack of specificity in the information. We conclude that, on the basis of this record, the defendant was not deprived of a constitutional right.

The second issue that must be resolved is whether the due process clause of the fourteenth amendment to the United States constitution entitles the defendant to a preliminary probable cause hearing under the dictates of Gagnon v. Scarpelli, supra, and Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972).

The state urges that we not consider that issue because the defendant did not raise it prior to or during the probation revocation hearing, and because it is not reviewable under State v. Evans, supra. Additionally, the state argues that although the claim was the subject of the denial of the defendant’s motion to open, that denial was not the subject of any amended appeal. The defendant’s position is that his motion to the trial court to open and set aside the judgment of probation revocation based upon the constitutional right allegedly accorded him under Gagnon, was sufficient to preserve his appellate rights. He also urges that because he raised the claim in his preliminary statement of issues filed with this appeal, he has preserved his appellate rights as to it. He argues, furthermore, that, in any case, the issue must be reviewed under Evans.

It is not necessary for us to decide whether the defendant’s failure to amend his appeal to request review of the denial of his motion to open the judgment based upon a constitutional claim, as opposed to an attempt to open a judgment to offer additional evidence; Freccia v. Martin, 163 Conn. 160, 302 A.2d 280 (1972); precludes him from now raising the issue on appeal. See also Brown v. Brown, 190 Conn. 345, 350, 460 A.2d 1287 (1983). The issue is reviewable because, based upon a limited review of the record, the defendant’s claim amounts to one of a constitutional deprivation of his due process rights allegedly accorded to him under Gagnon v. Scarpelli, supra. See State v. Thurman, supra.

The next question that must be resolved is whether the defendant was, in fact, deprived of a constitutional right because of the failure of the trial court to conduct a preliminary hearing. We conclude that the procedure followed, which did not include a preliminary hearing to establish probable cause for a probation violation, gave the defendant the procedural due process rights to which he was entitled.

Since the cases of Gagnon v. Scarpelli, supra, and Morrissey v. Brewer, supra, were decided, the precise due process rights that should be accorded to probationers in Connecticut pursuant to the fourteenth amendment have not been clearly delineated. In this state there are statutes, rules of practice, and case law on the subject that are not entirely consistent.

The appellate courts have not yet determined whether, or under what conditions, statutes and rules of practice require both a preliminary hearing and a subsequent formal hearing to determine whether probation should be revoked because of the violation of a condition of probation.

The response to the issue requires an examination of Gagnon and Morrissey and their decisional donees, with an awareness of General Statutes § 53a-32 (a) and Practice Book § 943.

Morrissey v. Brewer, supra, held that the minimum due process requirements for revocation of parole include written notice of the claimed parole violation, disclosure to the parolee of the evidence against him, the opportunity to be heard in person and to present witnesses and documentary evidence, the right to confront and cross-examine adverse witnesses in most instances, a neutral hearing body, and a written statement as to the evidence for and reasons for parole revocation. The court also held that there should be a preliminary hearing by a detached body to determine if probable cause exists to detain the parolee pending a final decision on revocation. Gagnon v. Scarpelli, supra, extended the holding in Morrissey to probationers because there is no “difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation . . . .” Id., 782. Neither the probationer in Gagnon nor the parolee in Morrissey was accorded a hearing, either preliminary or final, prior to the revocation of probation or parole, and both cases involved an administrative scheme for revocation as opposed to a judicial scheme for revocation such as that in Connecticut.

Legal commentators and scores of cases decided by state and federal courts have interpreted Morrissey and Gagnon as affording minimal due process rights to parolees and probationers that are less than the full scale rights afforded to defendants initially arrested for the commission of crimes. M. Nahari, “Due Process and Probation Revocation: The Written Statement Requirement,” 56 Ford. L. Rev. 759 (1988). “A strict interpretation of the Morrissey standards runs contrary to the spirit of flexibility with which the Supreme Court promulgated the Morrissey and Gagnon due process requirements.” Id., 773. “[D]ue process is flexible and calls for those procedural protections that the particular situation demands.” State v. Smith, 207 Conn. 152, 171, 540 A.2d 679 (1988). A revocation proceeding does not require all of the procedural components associated with an adversarial criminal proceeding. Id., 176. In other words, the purpose of a probation revocation hearing is to determine whether there are findings upon which a violation of a condition can rest and, if there are, whether, in the discretion of the court, those findings warrant a continuation, modification or revocation of the conditional liberty of a defendant. Those initially charged with a crime have, were it not for the charge, an absolute right to liberty, as opposed to those charged with a violation of probation who have only a conditional right to liberty.

Three United States Supreme Court cases, decided since the 1972 decisions of Morrissey and Gagnon, have amplified what is meant by due process in a parolee or probationer revocation setting. The preliminary hearing described in Morrissey and Gagnon is not necessary if a parolee or probationer has already been imprisoned for another crime while on parole or probation. Moody v. Daggett, 429 U.S. 78, 97 S. Ct. 274, 50 L. Ed. 2d 236 (1976). The rationale for the holding is that the subsequent conviction is the equivalent of probable cause or reasonable ground to believe the parolee or probationer has violated a probation or parole condition and that the issuance of a warrant for the probation or parole violation did not cause the deprivation of the defendant’s liberty. Id., 87. “[I]n cases such as this, in which the parolee [or probationer] admits or has been convicted of an offense plainly constituting a parole violation, the only remaining inquiry is whether continued release is justified, notwithstanding the violation.” Id., 89; see also Nelson v. United States, 479 A.2d 340 (D.C. App. 1984); Smith v. United States, 474 A.2d 1271 (D.C. App. 1983). The teaching of these cases is that no preliminary hearing is necessary when the defendant is not being detained because of the probation violation. Id. This is also the case pursuant to Rule 32.1 (a) (1) of the federal rules of civil procedure. Fed. R. Civ. P., Notes of Advisory Committee on Rule 32.1 (a) (1). If no detention is caused by the arrest of a probationer for a probation violation, no preliminary hearing is required to satisfy due process. United States v. Strada, 503 F.2d 1081 (8th Cir. 1974); United States v. Tucker, 524 F.2d 77 (5th Cir.), cert. denied, 424 U.S. 966, 96 S. Ct. 1462, 47 L. Ed. 2d 733 (1975); Hull v. Enger Construction Co., 550 P.2d 692 (1976).

The purpose of the initial hearing as described in Gag-non is to determine as quickly as possible whether there is probable cause to believe acts have been committed that violated a probation condition, so that the conditional liberty of a defendant is not terminated without such cause. The purpose of the final hearing is to make the ultimate conclusion of whether or not there has been a violation and, if so, whether probation should be terminated, modified or continued. There is no violation of due process rights if these purposes are satisfied and there is no detention of the probationer.

In 1985, Black v. Romano, 471 U.S. 606, 105 S. Ct. 2254, 85 L. Ed. 2d 636 (1985), was decided. A unanimous court held that due process did not require a trial court to indicate that it considered alternatives to incarceration before revoking probation. The significance of the case is in its discussion of Morrissey and Gag-non. Black makes it clear that those cases outline procedural guarantees only, and do not intrude into the substantive grounds for revocation of probation. There should be no “imposition of rigid requirements that would threaten the informal nature of probation revocation proceedings or interfere with exercise of discretion by the sentencing authority.” Id., 611. “[0]ur-precedents have sought to preserve the flexible informal nature of the revocation hearing, which does not require the full panoply of procedural safeguards associated with a criminal trial.” Id., 613, citing Morrissey v. Brewer, supra, 489-90.

There is a silent message in Black. Its holding is unrelated to whether a preliminary hearing must be held in the probation revocation process in order to satisfy due process, but it is clear that there was, in fact, only one hearing conducted in the case. Although that is true, no violation of the defendant’s procedural due process rights was found. The court determined that the sentencing court’s memorandum of decision and the transcript of the hearing of that court provided the necessary written statement to the defendant as mandated by Gagnon. The memorandum and transcript explained the evidence relied upon and the reason for the decision to terminate probation. Black v. Romano, supra, 616. They also formed the basis for informing the defendant of the specific way in which the state had charged that he violated his probation. The lower court decisions of Black in the federal district court for the eastern district of Missouri and the court of appeals for the eighth circuit state that the defendant had only one revocation hearing, held a little more than one month after his arrest for an unrelated crime. Black v. Romano, 567 F. Sup. 882 (E.D. Mo. 1983), and 735 F.2d 319 (8th Cir. 1984). It is clear, therefore, that the defendant was not given a preliminary hearing, and that no deprivation of due process arose from the lack of such a hearing.

It is unclear whether the United States Supreme Court was simply following Moody when it found probable cause arising from the second arrest itself, or whether a preliminary probable cause hearing was unnecessary because the defendant had not been deprived of his liberty, or whether the particularized statement of the violation in the trial court’s show cause order obviated the necessity for a preliminary hearing. At least one court has concluded that the latter is true.

There is compliance in every major respect with Morrissey, Gagnon and Black when the trial court’s order to show cause gave written notice of the alleged violation of the conditions of his probation, and the one hearing itself is an adversarial, evidentiary hearing at which the probationer was represented by counsel and had a full opportunity to present testimony and mitigating evidence and to cross-examine witnesses. Saunders v. United States, 508 A.2d 92, 97 (D.C. App. 1986).

The third United States Supreme Court case affecting Gagnon and Morrissey is Griffins. Wisconsin, 483 U.S. 868, 107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987). It casts doubt on the necessity for a mandatory preliminary hearing in probation revocation hearings. “A State’s operation of a probation system . . . may justify departures from the usual warrant and probable cause requirements.” Id., 873-74.

In this area of the procedural due process to be accorded probationers accused of violating a condition or conditions of their probation, the United States Supreme Court has moved from minimum requirements to bare minimum requirements, as evidenced by its evolution from Gagnon to Griffin. The decisions in Connecticut during the same time span, 1972 to the present, are reflective of the United States Supreme Court decisions.

State v. Roberson, 165 Conn. 73, 327 A.2d 556 (1973), established that an appellate court’s review of an order revoking probation is based on whether the trial court abused its discretion. If the trial court was reasonably satisfied that the terms of probation had been violated and that the beneficial purposes of probation were no longer being served, the judgment of revocation should be upheld. Roberson was decided after Morrissey and cites it. The underlying violation in Roberson was the conviction of another crime which the defendant admitted. There is no discussion of whether the defendant should have had a preliminary hearing pursuant to Morrissey or whether the defendant was incarcerated because of his conviction of the subsequent crime.

The only published Connecticut criminal case in which the subject of a preliminary probation revocation hearing was discussed is State v. White, 169 Conn. 223, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975). In that case, the defendant was arrested pursuant to a warrant, and a probation revocation hearing was held three weeks later. The defendant cited Gagnon, which had been decided a scant seventeen days earlier, and the trial court, because of the “newness” of Gagnon, continued the hearing until after a preliminary hearing had been held. The preliminary hearing was conducted by a probation department officer not connected with the defendant’s case. The officer determined that there was probable cause to believe that the defendant had violated a condition of his probation. After a second, full hearing, the court revoked the defendant’s probation. The case, then, is peripherally involved with Gagnon in that a two-tiered proceeding was, in fact, conducted, but the case does not hold that such a procedure is mandated by Gagnon, given the statutes and rules of practice of Connecticut.

Although some Connecticut cases on the subject of the requirements of due process for probation revocation hearings since State v. White, supra, have cited Morrissey, Gagnon, Black or Griffin, they have not required a preliminary hearing. Payne v. Robinson, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988); Gentry v. Warden, 167 Conn. 639, 356 A.2d 902 (1975); State v. Johnston, 17 Conn. App. 226, 551 A.2d 1264 (1988); State v. Roman, 13 Conn. App. 638, 538 A.2d 1076 (1988); State v. Navikaukas, 12 Conn. App. 679, 533 A.2d 1214 (1987), cert. denied, 207 Conn. 804, 540 A.2d 74 (1988); State v. Cooley, 3 Conn. App. 410, 488 A.2d 1283, cert. denied, 196 Conn. 805, 492 A.2d 1240 (1985). Other Connecticut cases do not cite any United States Supreme Court cases, limiting their discussions to General Statutes §§ 53a-30 or 53a-32, and then finding that a trial court did not err in revoking probation after one hearing. State v. Pecoraro, 196 Conn. 305, 493 A.2d 180 (1985); State v. D ’Ambrosia, 195 Conn. 461, 488 A.2d 822 (1985); State v. Toler, 192 Conn. 321, 471 A.2d 643 (1984); State v. Johnson, 11 Conn. App. 251, 527 A.2d 250 (1987).

We conclude that, consistent with the United States constitution, there are instances in which the preliminary hearing of Gagnon is superfluous. The present case is one of those instances. The warrant application was accompanied by an affidavit of the probation officer in charge of the defendant’s file, and the warrant itself was signed by a judge of the Superior Court as an independent magistrate. The defendant was arrested on the basis of the warrant, was released on bond shortly after the arrest, was provided with all of the safeguards accorded to criminal defendants by the rules of practice and had a full hearing less than three months after his arrest for violating the conditions of his probation. There was no substantial time lag between the arrest and the eventual determination by the trial court that the probation should be terminated. On the basis of these facts, the necessity for the procedural due process requirement of a preliminary hearing as discussed in Gagnon was not present. See Liistro v. Robinson, 170 Conn. 116, 365 A.2d 109 (1976). Furthermore, neither our statutes nor our rules of practice specifically require a preliminary hearing.

The defendant was not deprived of a right arising from the fourteenth amendment to the United States constitution or from a Connecticut statute or rule of practice.

Most of the defendant’s remaining claims of error are subject to a summary disposition.

He claims error in the trial court’s refusal to allow the sentencing judge to testify that 100 hours, instead of 1000 hours, of community service was intended as an original condition of probation. The trial court rightly concluded that this testimony was irrelevant to the issue of the revocation hearing, namely, whether the defendant had performed six hours per week of community service as subsequently ordered by a modification to the original order of community service. Furthermore, an affidavit of the sentencing judge was part of the court file.

Another of the defendant’s claims is that there can be no violation of a condition of probation unless the violation was willful. Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983), recognized that in the situation of the failure of an indigent defendant to pay a fine or restitution, revocation of probation cannot be automatic. There must be a finding in such a situation that the defendant did disobey wilfully the condition imposed by the court. The holding of Bearden, however, does not prohibit a revocation of probation in other contexts even if the failure to obey a condition of probation is not found to be intentional or willful. Black v. Romano, supra, 611. Although a finding of a violation of a condition of probation should not lead to a rote revocation of probation; State v. Cooley, supra, 414; there is no constitutional requirement, except in the circumstance of Bearden, that the trial court must first find that the violation was willful, before probation may be revoked.

The rest of the defendant’s claims of error relate to the trial court’s rulings on evidence, its reliance on the testimony of the defendant’s probation officer, the court’s failure to make specific findings that the purposes of the defendant’s probation were no longer being served, and the alleged bias of the trial court.

Hearsay evidence is admissible into evidence at a probation revocation hearing at the discretion of the court, if it is relevant, reliable and probative. Gagnon v. Scarpelli, supra, 789; Morrissey v. Brewer, supra, 499; State v. White, 169 Conn. 223, 239-40, 363 A.2d 143 (1975). It was within the trial court’s discretion to determine the credibility of the witnesses and the weight to be given their testimony, including the testimony of the defendant’s probation officer.

The primary purpose of a probation revocation proceeding is to determine whether the defendant is complying with the terms of his probation. Payne v. Robinson, supra, 571. Appellate review “distills to a review of the reasonableness of two findings,” whether there was a violation of a condition of probation, and whether probation should be revoked because its rehabilitative purposes are no longer being served. State v. Navikaukas, supra, 682. Under the facts of this case, the court impliedly found that the beneficial purposes of probation were no longer being served without making specific findings. See id. Both of the ultimate findings of the court, that there was a violation of a condition of probation and that probation should be revoked, were reasonable and the court need not have made specific subsidiary findings of fact.

The defendant’s claim of judicial bias was not preserved. No motion was made to disqualify the court, and there are no facts, and no indication from the record, from which we can conclude, that the trial court was not impartial. See Dubaldo v. Dubaldo, 14 Conn. App. 645, 542 A.2d 750 (1988).

There is no error.

In this opinion the other judges concurred.

       The charge of manslaughter in the second degree stemmed from a motor vehicle accident that resulted in the death of a young woman and that was allegedly caused by the defendant’s driving at an excessive speed.

       None of the standard conditions of probation is at issue in this case.

       In an affidavit dated July 17,1988, the sentencing court, Rottman, J., stated that on November 15, 1985, he was a judge of the Superior Court and that the special condition of probation was intended to be 100 hours of community service.

       “Vop” presumably means violation of probation.

       A second motion for modification was filed by the defendant, but the court, Corradino, J., declined to act on it because the hearing which is the subject of this appeal was pending before Gem, J.

       General Statutes § 53a-32 (a) provides in relevant part: “At any time during the period of probation . , . the court . . . may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation .... or may issue a notice to appear to answer to a charge of such violation, which notice shall be personally served upon the defendant. . . . 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. . . . Provisions regarding release on bail of persons charged with a crime shall be applicable to any defendant arrested under the provisions of this section. Upon such arrest . . . the probation officer shall immediately so notify the court. . . . Thereupon, or upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation . . . shall be advised by the court that he has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in his own behalf.”

       Practice Book § 943 provides: “proceedings for revocation of probation shall be initiated by an arrest warrant supported by an affidavit or by testimony under oath showing probable cause to believe that the defendant has violated any of the conditions of his probation . . . or by a written notice to appear to answer to the charge of such violation, which notice, signed by a judge of the superior court, shall be personally served upon the defendant by a probation officer and contain a statement of the alleged violation. All proceedings thereafter shall be in accordance with the provisions of Secs. 634 and 660. At the revocation hearing, the prosecuting authority and the defendant may offer evidence and cross-examine witnesses. If the defendant admits the violation or the judicial authority finds from the evidence that he committed the violation, the judicial authority may make any disposition authorized by law.”
      Practice Book §§ 634 and 660 relate to arraignment and the conditions governing release of defendants. Probationers, after arrest, are thus given by § 943 all of the rights accorded other persons initially charged with a crime.

       We are aware that General Statutes § 53a-32 (a) provides for the initiation of probation revocation proceedings by a probation officer or his deputy. The present case is not concerned, on its facts, with such an initiation, and we need not comment on the constitutionality of such a procedure. Practice Book § 943, however, does not provide for the initiation of proceedings to revoke probation by a nonjudicial officer, except if the revocation is based upon a conviction for a new offense. There are disparities between the rule and the statute that need not be reconciled for the purposes of this opinion. See State v. Clemente, 166 Conn. 501, 353 A.2d 723 (1974).

       The holding of the case is unrelated to whether a preliminary hearing is required, and relates, instead, to whether a search warrant must be obtained before searching a probationer’s home.

        Lee v. Board of Education, 181 Conn. 69, 78, 434 A.2d 333 (1980), which was not a criminal case, states, in dicta, that a parolee’s freedom may only be revoked, consistent with the due process clause of the fourteenth amendment of the federal constitution, upon a preliminary determination of probable cause, followed by a later hearing conducted with specific procedural guarantees of due process to determine whether revocation should occur.

       The trial court found that because Connecticut had not yet adopted a procedure to be followed in accordance with Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1972), a preliminary and a final probation revocation hearing should be held. It also found that General Statutes § 53a-32 (a) requires only one hearing at which the defendant is entitled to be informed of the manner in which he is alleged to have violated the condition, to be represented by counsel, to cross-examine witnesses and to give evidence. Records and Briefs, Findings 24 and 110.

        State v. White held that General Statutes §§ 52-146d through 52-146j, the statutory psychiatrist-patient privilege, do not prevent the use of knowledge obtained thereby from being available to the court in a probation revocation hearing, that failure to deliver standard conditions of probation to the defendant did not render the probation invalid on the particular facts of the case, that it was not error to introduce hearsay at the preliminary hearing or at the final hearing, and that there was no denial of due process although the defendant had no counsel at the preliminary hearing.

       We need not decide whether probationers who are held in custody solely for an alleged violation of a condition of probation and who do not receive a speedy hearing on the revocation of probation are constitutionally entitled to a preliminary hearing.