author: GRUENDEL, J.

text:
    CHARLES R. KLINE v. GERTRUDE KLINE
    (AC 25792)
    Gruendel, Harper and Berdon, Js.

      Argued January 10
    officially released May 29, 2007

      Christopher P. Norris, with whom were Barbara A. Kershaw, and, on the brief, William R. Donaldson III, for the appellant-appellee (defendant).

      Peter M. Haberlandt, with whom was Steven D. Ecker, for the appellee-appellant (plaintiff).
   Opinion

GRUENDEL, J.

The plaintiff, Charles R. Kline, appeals from the judgment of the trial court denying his postdissolution motion for an order seeking repayment from the defendant, Gertrude Kline. On appeal, the plaintiff claims that the court improperly rewrote the applicable article contained within the parties’ separation agreement. We agree wdth the plaintiff and, accordingly, reverse in part the judgment of the trial court.

The following undisputed facts and procedural history are relevant to the plaintiffs appeal. The parties divorced on May 19, 1995. The judgment of dissolution incorporated the terms of a separation agreement that had been signed by the parties on the day of the dissolution. The plaintiff was employed by Union Carbide Corporation (Union Carbide) and had accumulated a series of options to purchase stock in the corporation and one of its divisions as compensation for his services.* *** Article 20 (b) of the separation agreement provides that the plaintiff “shall pay to the [defendant] a sum equal to fifty percent ... of the net, after-tax proceeds realized by the [plaintiff] from his exercise of the stock options granted and exercisable through December 31, 1994.” The article continues by stating that the plaintiff “will use his best efforts to maximize the amount to be realized from his exercise of these options. The [plaintiff] shall not be required to exercise any options which will not result in a net profit. Otherwise, the [plaintiff] shall exercise the options prior to their respective expirations and he shall pay over to the [defendant] such sums as may be due to her within thirty days of his receipt of the net proceeds.”

Article twenty-one involves real property located at 18 Big Buck Lane in Brookfield. The article provides that the defendant “shall have the option to either purchase the [plaintiffs] interest in the premises or list the property for sale. In the event that the [defendant] has, for any reason whatsoever, not listed the property for sale within six months from the date of the execution of this Agreement, then in that event the [defendant] shall be required to purchase the [plaintiffs] interest in the premises. Time is of the essence to this date.” The remainder of the article concerns the specifics of the sale of the real property to a third party or the defendant’s purchase of the plaintiffs interest in such property.

Article twenty-four provides that “[t]he parties have hereinabove agreed to a division of the [plaintiffs] stock options and to the division of the real estate. When the [plaintiffs] interest in the real estate is determined by sale or purchase as previously set forth, the [defendant] shall have the option to retain a sufficient portion from the [plaintiffs] proceeds as an offset against her portion of the stock options yet to be exercised. It is understood and agreed that should the [defendant] so elect then in that event her portion of the stock option proceeds and any offset shall in no event exceed the maximum of $209,000.” The article then offers an example of the manner in which the exchange would proceed; concrete monetary figures are inserted to represent a hypothetical situation in which the combination of the defendant’s receipt of proceeds from prior options exercised and the plaintiffs established interest in the real estate are subtracted from $209,000.

On January 6, 1997, the plaintiff filed a motion for contempt, alleging that the defendant exceeded the six month time period in which either to list for sale or purchase the plaintiffs interest in the real property pursuant to article twenty-one. In response to the motion, the defendant elected to purchase the plaintiffs interest in the marital home. It was undisputed that the plaintiffs interest in the home at this time was $81,000. The plaintiff continued to pay the defendant the proceeds from the stock options.

On May 21,2001, the plaintiff filed the postdissolution motion for order, claiming that his payments of stock option proceeds to the defendant exceeded the $209,000 cap contained in article twenty-four by $56,713.76. In his motion, he requested an order for the repayment of that amount, plus costs and attorney’s fees. On June 15, 2001, the defendant responded by filing two post-judgment motions for contempt regarding alimony and property. On March 12, 2002, a hearing was held before the court, Doherty, J., on all three motions. In a memorandum of decision filed March 10, 2003, the court denied the plaintiffs motion for order. This appeal followed.

“Where a judgment incorporates a separation agreement, the judgment and agreement should be construed in accordance with the laws applied to any contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. . . . 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. . . . The court’s determination as to whether a contract is ambiguous is a question of law; our standard of review, therefore, is de novo. . . .

“A contract is unambiguous when its language is clear and conveys a definite and precise intent. . . . The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity. . . . Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous. . . .

“In contrast, a contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. [A]ny ambiguity in a contract must emanate from the language used by the parties. . . . The contract must be viewed in its entirety, with each provision read in light of the other provisions . . . and every provision must be given effect if it is possible to do so.” (Internal quotation marks omitted.) Russell v. Russell, 95 Conn. App. 219, 221-22, 895 A.2d 862 (2006).

Article twenty-four governs the defendant’s “option to retain a sufficient portion from the plaintiffs proceeds [from the real property] as an offset against her portion of the stock options yet to be exercised.” Our review of the article reveals that the language is clear and unambiguous and is followed by an example that further underscores the meaning of the provision. In the example, $209,000 provides the starting point from which the previously received stock options and the plaintiffs interest in the real estate are subtracted, leaving the balance due to the defendant, if any. After the description of the example, hypothetical numbers are used, in which $29,000 in prior options exercised and $115,000 in the plaintiffs estimated interest in the real estate are subtracted from $209,000, leaving $65,000 due to the defendant. It is clear that $209,000 is the maximum amount that the defendant could receive from both the stock options and the plaintiffs interest in the home.

The court considered the following sentence from article twenty-four, regarding the defendant’s election to exercise the option to purchase the plaintiffs interest in the real property: “It is understood and agreed that should the [defendant] so elect then in that event her portion of the stock option proceeds and any offset shall in no event exceed the maximum of $209,000.” Despite this unequivocal language, the court found this sentence of article twenty-four to be ambiguous and offered its own interpretation: “It is understood and agreed that should the [defendant] so elect then and in that event her portion of the stock option proceeds [and any] to be used as an offset shall in no event exceed the maximum of $209,000.” (Emphasis in original.) Accordingly, the court unquestionably changed the language to reflect that the defendant was entitled to receive substantially more money than article twenty-four dictated. Although the court stated that the plaintiffs interpretation was not what it found “to have been [the parties’] true intention when they added article twenty-four,” the court’s rewriting of this sentence was improper. See Herbert S. Newman & Partners, P.C. v. CFC Construction Ltd. Partnership, 236 Conn. 750, 760, 674 A.2d 1313 (1996) (“[i]t is axiomatic that courts do not rewrite contracts for the parties”).

The defendant argues that because neither the language of article twenty-four nor the example given had any provision for repayment, the plaintiffs interpretation makes article 20 (b), the article governing stock options, meaningless. The defendant gave two examples in her brief. In one example, she already had received $100,000 in stock option proceeds, and the plaintiffs interest in the real property was $115,000. The defendant argued that together, they would exceed the $209,000 cap listed in article twenty-four by $6000. This argument is flawed because the express language in article twenty-four provides that the defendant “shall have the option to retain a sufficient portion from the [plaintiffs] proceeds . . . .’’In the defendant’s hypothetical, therefore, she would only be relieved of paying the plaintiff $109,000 in cash and would be required to pay him the remaining $6000.*

We conclude by noting that the defendant had the option to sell the real property to a third party or purchase the plaintiffs interest in the property. She was required to exercise the second option due to her inaction within the allotted six month time period, pursuant to article twenty-one; article twenty-four made clear the income to which she would be entitled. “[C]ourts do not unmake bargains unwisely made. Absent other infirmities, bargains moved on calculated considerations, and whether provident or improvident, are entitled nevertheless to sanctions of the law. . . . Although parties might prefer to have the court decide the plain effect of their contract contrary to the agreement, it is not within its power to make a new and different agreement; contracts voluntarily and fairly made should be held valid and enforced in the courts.” (Emphasis in original; internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 505-506, 746 A.2d 1277 (2000). The language of the separation agreement is clear and unambiguous and is to be given effect in accordance with its terms.

The judgment is reversed on the plaintiffs motion for order and the case is remanded with direction to render judgment for the plaintiff on his postdissolution motion.

In this opinion the other judges concurred.

       The defendant, Gertrude Kline, initially appealed from the judgment of the trial court denying her motion for contempt, and the plaintiff cross appealed from the judgment denying his motion for an order seeking repayment from her of certain sums allegedly overpaid. Thereafter, the defendant withdrew the appeal on February 14, 2006, and this court decided the matter on the plaintiff’s cross appeal.

       Subsequent to the dissolution, the defendant changed her name to Gertrude Patron as a result of her remarriage. Her former name remains for purposes of this appeal.

       We decline to review the defendant’s two alternate grounds for affirmance because the court did not find the requisite facts for her claims of mutual mistake and equitable estoppel. Because the defendant did not file a motion for articulation, therefore, we cannot review her claims. Our Supreme Court has held that “[o]ur rules regarding the need to seek an articulation of the factual basis of the trial court’s decision are well settled. It is the responsibility of the appellant to move for an articulation in order to clarify the basis of the trial court’s decision should such clarification be necessary for effective appellate review of the issue on appeal. ... It is, therefore, the responsibility of the appellant to move for an articulation or clarification of the record when the trial court has failed to state the basis of a decision. . . . These rules have equal import when the appellee seeks to affirm the judgment on an alternate ground.” (Citations omitted; emphasis added.) Zahringer v. Zahringer, 262 Conn. 360, 370, 815 A.2d 75 (2003).

       The separation agreement was the culmination of negotiations between the parties, each of whom was independently represented by counsel. Article fifteen of the separation agreement states: “Each party represents that both the legal and practical effects of this Agreement in each and every respect have been fully explained to each of them by counsel of his or her choosing and each acknowledges that this is a fair Agreement and not the result of any fraud, duress or undue influence exercised by either party upon the other.”

       Apart from Union Carbide, the plaintiff was given options to purchase stock in the Linde Division, which later became Praxair, an independent company. Thus, the plaintiffs stock options were divided between the two companies.

       The $209,000 figure was derived from one half of the $418,000 estimate of the value of the stock option proceeds after taxes at the time the separation agreement was signed and made part of the dissolution judgment.

       The plaintiff arrived at the calculation by claiming that stock options were cashed on January 27 and 28, 1997, resulting in a total of $92,158.49. Because the plaintiffs interest in the marital home was $81,000, the plaintiff paid the defendant $11,158.49 in stock option proceeds to reach that amount. In addition, prior to the defendant’s purchase of the plaintiffs interest in the marital residence, the defendant had received $46,055.65, and subsequent to the purchase of his interest, the defendant received $127,499.62 in stock option proceeds. He added these figures to his $81,000 interest in the marital home that the defendant had elected to receive in stock option proceeds and arrived at the sum of $265,713.76. Because his payments to the defendant could not exceed the $209,000 cap, the plaintiff claimed that he overpaid by $56,713.76.

       In addition, the plaintiff claimed that he paid $3525 in alimony payments that were not due the defendant pursuant to article seventeen because of her remarriage. The defendant never cashed the alimony checks, and the plaintiff withdrew this portion of the motion.

       The court also denied the defendant’s motion for contempt regarding alimony and directed that the defendant’s motion for contempt regarding property be “reclaimed and argued in detail in order for the court to enter appropriate orders thereon.” Subsequent to the filing of the parties’ briefs in this appeal, the court, Hon. Sidney Axelrod, judge trial referee, issued a memorandum of decision on October 27, 2006, denying the defendant’s motion for contempt regarding property.

       The court found that the plaintiffs interpretation of the agreement was “especially incongruous in view of the fact that when all was said and done, the plaintiffs interest in the property amounted to (only) $81,000, and the value of the stock options otherwise owing to the defendant was an amount considerably in excess of that figure.” Even were we to go beyond the clear and unambiguous language of the contract to consider the intent of the parties and the fairness of the bargain at the date of dissolution, it is undisputed that the stock options at that time were worth about $418,000 after taxes, half of which would be due and owing to the defendant if she were to collect the proceeds on that date. See footnote 6.
      As the plaintiff explained during direct examination, article twenty-four was added because “options have no sure value. They’re whatever you have. You’re given a price. And if the stock price goes above that price and you sell them, you make a profit. If it goes below that number, it’s called ‘under water,’ and you have no value. And, so, it’s a gamble. And I said I wasn’t willing to take the risk of turning over my entire share in the house on options, especially working for Union Carbide at the time. Had they had another Bhopal [disaster] Union Carbide stock would have been—would have made Enron’s [fallen stock price] look expensive, I think. I just couldn’t count on that value.” Article twenty-four was a compromise that allowed the defendant not to have to pay the plaintiff cash for the real property and permitted the plaintiff some assurance that he would not be required to rely solely on stock option proceeds.

       The defendant’s other hypothetical suggested that she already could have been in possession of $300,000 in prior options exercised, clearly exceeding the $209,000 cap the plaintiff claimed that article twenty-four dictated. Although the defendant waited more than one and one-half years to exercise her article twenty-four option, however, it is undisputed that the agreement required that she do so within six months. At the time of the agreement, it was established that the defendant’s entire portion of the stock option proceeds was worth $209,000, well below the $300,000 given in the hypothetical. In actuality, after six months, the plaintiff had exercised only two of the fourteen article 20 (b) options, as he was entitled to do under article 20 (b), which resulted in the payment of $31,871.77 in proceeds to the defendant.


source: Caselaw Access Project

author: McLACHLAN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JOHNNY ORTIZ
    (AC 27681)
    Flynn, C. X, and Bishop and McLachlan, Js.

      Argued January 18
    officially released May 29, 2007

      Elizabeth M. Inkster, senior assistant public defender, with whom, on the brief, were Jocelyn Griffin and David Gettler, certified legal interns, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom were John F. Fahey, senior assistant state’s attorney, and, on the brief, James E. Thomas, state’s attorney, for the appellee (state).
   Opinion

McLACHLAN, J.

The defendant, Johnny Ortiz, appeals from the judgments of conviction, following a jury trial, of felony murder in violation of General Statutes § 53a-54c, manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3), burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), kidnapping in the second degree in violation of General Statutes § 53a-94, and larceny in the third degree in violation of General Statutes §§ 53a-124 (a) (1) and 53a-8. The defendant also appeals from the judgment, following a trial to the court, revoking his probation. On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress incriminating statements that he made to police because the state failed to prove that the statements were given with a knowing, voluntary and intelligent waiver of his Miranda rights or that his confession was voluntary, (2) admitted hearsay testimony in violation of his rights to confrontation and due process and (3) instructed the jury that it could find him guilty of felony murder on the basis of the underlying offenses of “simple robbery,” “simple burglary” and “simple kidnapping.” We affirm the judgments of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s claims on appeal. On February 7,2003, at approximately 7:30 p.m., the police discovered the body of Anzo Arnini in his home in West Hartford, after responding to a call to conduct a welfare check. Arnini, who was approximately eighty years old at the time of his death, was discovered lying face down on his kitchen floor, naked from the waist down, with his hands tied behind his back and with a necktie and a bathrobe belt tied around his mouth. The medical examiner determined that the cause of Amini’s death was positional asphyxia.

On February 8, 2003, the police located Arnini’s truck in a parking lot in Hartford. On the basis of evidence gathered from both Amini’s home and the area where the tmck was located, the police were able to link Kimberly Lebel to the crime scene. During the investigation, the police also arrested a witness, Jorge Santos, who implicated the defendant and Lebel. At trial, Santos testified that on the night of February 4,2003, the defendant and Lebel were with Santos at an apartment, and they discussed the crime. According to Santos, Lebel stated that she and the defendant had robbed an “old man” in West Hartford and had stabbed him and that he had died.

The defendant was arrested on the evening of February 11, 2003. According to West Hartford police Detective Paul Melanson, while the defendant was in custody, he told the police that on the night of the incident, he and Lebel went to Amini’s house. They planned that Lebel, a stripper, would dance naked for Amini, and Amini would pay her $60 in exchange for these services. The defendant stated to the police that he waited outside on the sidewalk while Lebel was inside with Amini. At some point, the defendant looked through the front window and observed Amini touching Lebel, which the defendant indicated was not part of the deal. The defendant ran in the side entrance of the house, and a physical confrontation between the defendant and Amini ensued. The defendant stated that Amini was going for the cabinets in the kitchen and that he thought that Amini was reaching for a gun. The defendant stated that he got Amini down and sat on Amini’s chest. The defendant then gagged Amini with the belt of Amini’s bathrobe and a cloth tie, because Amini was yelling so much.

During this time, Amini went into convulsions and then stopped moving. The defendant thought, however, that Amini might be pretending to be unconscious, so he tied his hands behind his back with a telephone cord. The defendant and Lebel then took the keys to Arnini’s truck, got into the truck and drove to Hartford to purchase some heroin and crack cocaine.

The defendant provided the police with written statements to this effect. He subsequently filed a motion to suppress his statements. On May 6, 2004, the court held a hearing on the defendant’s motion to suppress. During the hearing, the court heard testimony from West Hartford police Detectives Melanson, Frank Fallon and Robert Moylan. An attorney, Gerald Klein, and the defendant also testified. On October 22, 2004, the court issued a memorandum of decision denying the motion to suppress, and the contents of the defendant’s written statements were read to the jury during his trial.

I

ADMISSIBILITY OF CONFESSION

The defendant’s claim that the court improperly denied the motion to suppress his statements to the police is twofold. First, the defendant claims that the court improperly concluded that he voluntarily, knowingly and intelligently waived his Miranda rights. Within this claim, the defendant argues (1) that the court improperly concluded that the police properly advised him of the Miranda warnings and (2) that his heroin withdrawal rendered his waiver involuntary. Second, the defendant claims that the court improperly concluded that his confession was voluntary.

“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision .... Under the clearly erroneous standard, [w]e cannot retry the facts or pass on the credibility of the witnesses.” (Citation omitted; internal quotation marks omitted.) State v. Stephenson, 99 Conn. App. 591, 595-96, 915 A.2d 327 (2007).

The following additional facts, established at the May 6, 2004 suppression hearing, are relevant to our resolution of the defendant’s claim. On February 11, 2003, at approximately 7 p.m., members of the Hartford police department arrested the defendant on an outstanding West Hartford warrant, which had been obtained for the larceny of Amini’s truck. The defendant was transported to a police substation and was met by four West Hartford detectives at approximately 8 p.m. Two of these detectives, Fallon and Detective Schiffer, took the defendant into custody and placed him in the rear of their cruiser to transport him to the West Hartford police department. The other two detectives, Melanson and Moylan, followed in their police vehicle.

En route, Melanson radioed the unit ahead and requested that Fallon advise the defendant of his Miranda rights and that the lead vehicle proceed to Amini’s home. Fallon, who was seated in the right front passenger seat, turned the dome light on in the vehicle and told the defendant that he was going to advise him of his Miranda rights. The defendant indicated that he understood his rights and that “he had been arrested over thirty times and had heard his Miranda rights numerous times.” Fallon then advised the defendant of his rights.

The police cars stopped at Amini’s home, and Melan-son exited his vehicle and approached the defendant in the other vehicle. During a brief conversation, Melanson asked the defendant if he recognized the house, and the defendant answered, “yes.”

Thereafter, both police vehicles proceeded to the West Hartford police department, and the defendant was escorted to the third floor conference room in the detective division, arriving at approximately 9 p.m. At that time, the defendant did not indicate that he was unwilling to speak to the officers or request to speak to an attorney. Fallon testified that the defendant did not appear to have been drinking or appear to be intoxicated and “seemed to be pretty composed.” Although Melanson indicated in one response that the defendant appeared to be under the influence of either drugs or alcohol, he then clarified that response by indicating that “[the defendant’s] behaviors . . . weren’t unordi-nary behaviors that you would picture somebody under the influence, like, of alcohol, who was stumbling or something of that sort. There was none of that. Moreover, it was his discussing his heroin problem and, through training and experience, knowing that somebody who doesn’t maintain their heroin gets worse over time; in other words, sick, and he didn’t appear sick in any sort of way or anything of that sort. So, we kind of—you know, him telling us that he had a heroin problem and he had a drink of alcohol. But his actual appearance and behavior were relatively normal.” During the interview, the defendant appeared to deteriorate slightly, and he advised the officers that he was a heroin addict and was suffering from withdrawal symptoms. At that time, the defendant did not indicate, however, that he needed any medical attention.

For over a period of about one and one-half hours, beginning at approximately 9 p.m., the detectives spoke with the defendant about general matters, including Lebel. The police did not question the defendant about the murder during this initial interrogation. Also during this period, the police provided the defendant with breaks for food, drink and a bathroom visit. At approximately 11:30 p.m., the interview turned to the night of the incident.

At 2:30 a.m., Melanson decided to reduce the conversation to wilting. Utilizing a rights waiver form, Melan-son advised the defendant of his Miranda rights again and explained the contents of the form to the defendant. At about this time, the police determined that the defendant was thirty-one years of age, he had completed the tenth grade at Hartford High School and could read and write.

As Melanson went over the acknowledgement and waiver of rights form with the defendant, he read each numbered paragraph to the defendant, and the defendant initialed each, indicating that he understood the contents. The defendant read aloud the waiver portion of the form and then signed the form. Afterward, from approximately 2:40 a.m. until 3:20 a.m., the defendant provided a written statement to the police, with the assistance of Melanson. During the entire interview (from approximately 9 p.m. to 2:40 a.m.), the defendant did not indicate that he was tired or wanted to sleep, that he wanted to terminate questioning or that he wanted to speak to an attorney. Moreover, at that time, it did not appear to the officers that the defendant’s condition had deteriorated significantly or that he was in need of medical attention.

Shortly after 9 a.m., on the following morning, an attorney, Klein, who had been in touch with the defendant’s family and who had represented the defendant previously, contacted the West Hartford police department and requested to speak to the defendant. At approximately 9:30 a.m., the police advised the defendant that Klein had called and inquired whether the defendant would like to contact Klein. The defendant responded that he had confessed already and that he did not feel like talking to Klein. Moylan then escorted the defendant from the upstairs holding area down to his office to provide the defendant with the opportunity to contact Klein if the defendant so desired and in order to conduct a further interview of the defendant.

At approximately 9:30 a.m., or shortly thereafter, Mel-anson went to see the defendant. Melanson again reviewed with the defendant the waiver of rights form that the defendant had executed earlier and, relevant to the right to an attorney, indicated to the defendant, “you’ve been told that attorney Klein has [been] contacted . . . and wished to speak with you . . . .” The defendant responded, “I’ve already confessed, so there’s nothing to talk about.”

Melanson then reviewed again the advisement provided in the form with the defendant. After this advisement, the defendant indicated that he would be willing to be interviewed further concerning the incident under investigation. The defendant made no request to call or to meet with an attorney. Melanson and Moylan then conducted another interview from 10:13 a.m. to 10:40 a.m., which was also reduced to a written statement using the same method of preparation used to obtain the first statement. This statement, to which the defendant affixed his signature and which was submitted under oath, concluded, “I want to say that . . . Moylan and . . . Melanson treated me with respect, and they gave me pizza, cheeseburger, sodas and chicken fried rice.”

After the second written statement was completed, the defendant spoke further with the officers, and then Melanson allowed the defendant to call his brother. After the conversation, the defendant said his brother encouraged him to call Klein. Melanson retrieved the telephone number for Klein and gave it to the defendant in order to facilitate the contact. The defendant did not place the call and stated words to the effect of “[w]hat’s [Klein] going to do for me now?” At that time, the defendant left the note with Klein’s number written thereon on Moylan’s desk, and he was returned to the holding cell. At approximately 4 p.m., on February 12, 2003, the defendant was taken to John Dempsey Hospital in Farmington in order to have evidence collected from him and to receive treatment for his heroin withdrawal symptoms.

A

Miranda Waiver

The defendant first claims that the court improperly concluded that he waived his Miranda rights. “To be valid, a waiver must be voluntary, knowing and intelligent. . . . The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights. ... In considering the validity of a waiver, we look to the totality of the circumstances of the claimed waiver. . . . Although the issue of whether there has been a knowing and voluntary waiver is ultimately factual, the usual deference to fact-finding by the trial court is qualified in this area by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence.” (Citations omitted; internal quotation marks omitted.) State v. Azukas, 278 Conn. 267, 288, 897 A.2d 554 (2006).

1

Administration of Miranda Warnings

The defendant argues that the court improperly concluded that he was advised properly of the Miranda warnings. He claims that none of the officers read him the Miranda rights in a satisfactory manner. According to the defendant, this rendered his subsequent waiver and confession invalid.

An individual is entitled to be advised of his Miranda rights prior to any custodial interrogation in order to protect his privilege against self-incrimination and to ensure that all confessions used against him are knowingly and voluntarily made. State v. Ledbetter, 41 Conn. App. 391, 395, 676 A.2d 409 (1996), aff'd, 240 Conn. 317, 692 A.2d 713 (1997). ’’The primary purpose of the Miranda warnings is to ensure that an accused is aware of the constitutional right to remain silent before making statements to the police. . . . Two threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda: (l)the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation. . . . The defendant bears the burden of proving custodial interrogation.” (Citations omitted; internal quotation marks omitted.) State v. Betances, 265 Conn. 493, 500, 828 A.2d 1248 (2003).

Here, there is no dispute that the defendant was subjected to custodial interrogation. Rather, the defendant contends that the advisement was flawed because of inconsistencies in Fallon’s testimony as to whether he advised the defendant that the defendant had a right to see an attorney during questioning rather than before questioning. The defendant also contests the court’s conclusion that the defendant was advised of his rights by Melanson and Moylan, who, according to the defendant, merely handed the defendant the forms with the rights printed on them.

In its memorandum of decision, the court expressly found that the Miranda rights were given to the defendant on three occasions during the time period at issue: (1) on February 11, 2003, in the police cruiser before the questioning by Melanson, (2) on February 12, 2003, at the police station at 2:40 a.m. and (3) on February 12, 2003, at 9:30 a.m. These factual findings were based on direct testimony from the officers at the hearing that they had advised the defendant of his rights, which the court found credible. It is not the province of this court to retry facts or make credibility determinations related to the evidence presented to the trial court at a suppression hearing. See State v. Williams, 169 Conn. 322, 325, 363 A.2d 72 (1975). Upon review of the record, it is clear that the police officers’ testimony adequately supported the court’s determinations, as there was direct testimony from both Fallon and Melanson regarding the three instances cited by the court. Thus, we conclude that the court’s finding that the defendant was adequately apprised of his Miranda rights is supported by substantial evidence.

2

Voluntariness of Miranda Waiver

The defendant’s second argument is that his waiver was involuntary because he was suffering from heroin withdrawal at the time that he waived his Miranda rights. The defendant argues that Melanson’s testimony that the defendant was “maybe rubbing his stomach a little bit like his stomach was bothering him a little bit” coupled with the fact that the defendant was taken subsequently to the hospital and treated for heroin withdrawal clearly indicated that the defendant was suffering from withdrawal symptoms. The defendant argues that the court’s conclusion that he was not experiencing withdrawal symptoms that would affect his ability to waive his Miranda rights voluntarily and intelligently is not supported by the facts.

Upon examination of the record, we conclude that the court’s factual findings are supported by substantial evidence. Specifically, the court credited Fallon’s testimony that the defendant did not appear intoxicated and seemed to be composed. Melanson also indicated that he had experience and training observing persons suffering from heroin withdrawal and that the defendant did not appear to be sick in any sort of way. Moreover, the record supports the court’s finding that the defendant did not, at that time, indicate that he needed any medical attention. Although the defendant testified that he was experiencing withdrawal, the court properly chose to discredit his testimony, which conflicted with that of the officers. See State v. Hawthorne, 176 Conn. 367, 371, 407 A.2d 1001 (1978). Finally, during the interrogation, the defendant was provided with breaks for food, water and to use the bathroom. On the basis of the record, we conclude that the court did not determine improperly that the defendant made a valid waiver of his Miranda rights on the basis of the totality of the circumstances.

B

Voluntariness of Confession

The defendant’s second argument within the penumbra of his suppression claim is that, independent of any Miranda issues, the court improperly determined that his confession was voluntaxy in violation of his right to due process. At the outset, we note that the state bears the burden of persuasion on the issue of voluntariness, and it must convince the trial court by a preponderance of the evidence that the confession sought to be admitted was voluntarily given. State v. James, 237 Conn. 390, 425-26, 678 A.2d 1338 (1996). Our Supreme Court has stated: “The standard for voluntariness of a Miranda waiver is the same as the standard for volun-tariness of a confession. . . . Additionally, we have noted: Irrespective of Miranda . . . any use in a criminal trial of an involuntary confession is a denial of due process of law. ... In order to be voluntary a confession must be the product of an essentially free and unconstrained choice by the maker. . . . [T]he test of voluntariness is whether an examination of all the circumstances discloses that the conduct of law enforcement officials was such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined. . . . Furthermore, the scope of review is plenary on the ultimate question of voluntariness, but the trial court’s findings regarding the circumstances surrounding the defendant’s questioning and confession are findings of fact that will not be overturned unless they are clearly erroneous.” (Citations omitted; internal quotation marks omitted.) State v. Azukas, supra, 278 Conn. 289-90.

The defendant claims that the police coerced his confession by offering him medical treatment for his heroin withdrawal only on the condition that he cooperated in providing a confession. Factually, the defendant relies on his testimony at the suppression hearing to support this proposition. Upon review of the record, we conclude that the court’s factual determinations supporting the finding that the defendant’s confession was voluntary are not clearly erroneous. As discussed in part I A, the defendant made a knowing, voluntary and intelligent waiver of his rights, and although he may have been suffering from heroin addiction, the officers made no significant observations on which the court could conclude, on the basis of the totality of the circumstances, that the defendant’s confession was involuntary because of his drug use. See State v. Stankowski, 184 Conn. 121, 134, 439 A.2d 918 (“[T]he use of drugs or the ingestion of alcoholic beverages does not in and of itself render a subsequent admission inadmissible. ... It is one factor to be considered in determining the vohmtariness of a statement.” [Citations omitted; internal quotation marks omitted.]), cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981).

Further, there was no evidence of police tactics that overbore the defendant’s will to resist. The police gave the defendant breaks for food, water and to use the bathroom and gave him several opportunities to contact a lawyer. Moreover, the court expressly discredited the testimony of the defendant, and we find nothing in the record to undermine its discretion to determine that the defendant’s testimony was not credible. As such, the defendant’s bald assertion that the police coerced him is without merit. Accordingly, we conclude that the factual findings of the trial court were not clearly erroneous and that the defendant’s confession was freely given and not the result of overbearing police conduct. See State v. Azukas, supra, 278 Conn. 291.

II

ADMISSIBILITY OF LEBEL’S STATEMENT

The defendant next claims that the court improperly admitted hearsay testimony at his trial in violation of his rights to confrontation and due process. Specifically, the defendant argues that the court improperly admitted a statement of an alleged coconspirator without making a threshold finding of a conspiracy. The state argues that we should not review this claim because it was not distinctly raised before the trial court. The state further argues that the statement was admitted properly as a statement of a coconspirator or, alternatively, as an adoptive admission. Finally, the state argues that even if the admission of the evidence was improper, any error was harmless. We agree with the state that the issue was not preserved adequately before the trial court and that the statement properly could have been admitted into evidence as an adoptive admission. Accordingly, we sustain the ruling of the trial court.

“[0]ur standard of review for the trial court’s evidentiary rulings depends on whether the claimed error is of constitutional magnitude. The court’s ruling as to the nonhearsay character of the evidence is reviewed under a deferential abuse of discretion standard. . . . [I]f an [evidentiary] impropriety is of constitutional proportions, the state bears the burden of proving that the error was harmless beyond a reasonable doubt. . . . When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful.” (Citation omitted; internal quotation marks omitted.) State v. George J., 280 Conn. 551, 592, 910 A.2d 931 (2006), cert. denied, 549 U.S. 1326, 127 S. Ct. 1919, 167 L. Ed. 2d 573 (2007). “[W]ith respect to the question of whether an out-of-court statement possesses sufficient indicia of credibility in order to satisfy the requirements of the confrontation clause, our review is plenary.” State v. Pierre, 277 Conn. 42, 74, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006).

At trial, Lebel did not testify. The state called Santos, who testified about inculpatory statements that Lebel made in his presence while she and the defendant were in an apartment on the night of February 4, 2003. According to Santos, Lebel stated that she and the defendant “had robbed some old man in West Hartford and that he had died or something.” Santos also testified that Lebel stated that they had stabbed the old man, “or . . . something like that.” On cross-examination, Santos admitted that he had been using crack cocaine and alcohol on the day that the statements were made to him.

After the state began to elicit this testimony from Santos about Lebel’s statements, defense counsel objected on the ground that the state was soliciting hearsay testimony. The state responded that the statement was admissible as a coconspirator’s statement, and the court overruled the objection, allowing Santos to testify about what Lebel had stated in the apartment. At this point, the state concluded its direct examination of Santos, and the court called a recess.

During the recess and outside the presence of the jury, defense counsel renewed the objection, stating, “Your Honor, I would object to the witness’ statements as hearsay, specifically, the statement that ‘they told me they robbed an old man and he died.’ There is no conspiracy charge as to the robbery count, the felony murder count or the manslaughter charge.” (Emphasis added.) During a subsequent exchange, the court noted that there was a conspiracy charge related to the robbery and stated that the felony murder charge, by its very nature, is accessorial. Defense counsel further argued that the statement was inadmissible as to the robbery count, and the court overruled the defendant’s objection.

With respect to the issue of reviewability, the state argues that the defendant’s claim on appeal comprises an attack on the factual circumstances surrounding the admissibility of the evidence (i.e., that the facts do not support that the statement was made in furtherance of a conspiracy and that the circumstances indicate that the statement was unreliable), while the defendant’s objection at trial related only to whether there was a legal nexus between the crimes charged and the theory of admissibility (i.e., that there was no relevant charge of conspiracy as to the felony murder charge, and, therefore, the coconspirator exception to the rule against hearsay was inapplicable). In other words, the state argues that the defendant’s claim on appeal is a factual challenge to the foundation for admitting the evidence, which was not raised specifically before the trial court. We agree.

“[T]he standard for the preservation of a claim alleging an improper evidentiary raling at trial is well settled. This court is not bound to consider claims of law not made at the trial. ... In order to preserve an eviden-tiary ruling for review, trial counsel must object properly. ... In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling. . . . Once counsel states the authority and ground of [the] objection, any appeal will be limited to the ground asserted. . . .

“These requirements are not simply formalities. They serve to alert the trial court to potential error while there is still time for the court to act. . . . Assigning error to a court’s evidentiary rulings on the basis of objections never raised at trial unfairly subjects the court and the opposing party to trial by ambush.” (Internal quotation marks omitted.) State v. Calabrese, 279 Conn. 393, 408 n.18, 902 A.2d 1044 (2006).

Here, the defendant made a general objection to the court’s admission of the evidence as hearsay. Although the defendant’s follow-up objection stated the ground that the statement was not permitted as a statement by a coconspirator, the real purpose of that objection related only to the fact that there was no relevant charge of conspiracy and not that there was insufficient evidence to determine that the statements were made in furtherance of a conspiracy or that the statements were unreliable. We conclude that this objection was insufficient to apprise the trial court of the precise nature of the objection that the defendant now claims on appeal. See State v. Cabral, 275 Conn. 514, 531, 881 A.2d 247, cert. denied, 546 U.S. 1048, 126 S. Ct. 773, 163 L. Ed. 2d 600 (2005). We further conclude, therefore, that the defendant did not properly preserve the record for appeal and that the record is inadequate to review the alleged claim of error. See id.; see also State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

Because the defendant’s claim raises serious constitutional concerns, we choose to address the alternate ground for affirmance raised by the state. This court is free to sustain a ruling on a different basis from that relied on by the trial court. State v. John, 210 Conn. 652, 679-80, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989). Even if we assume arguendo that the record had been preserved adequately and that there was insufficient evidence that Lebel’s statement had been made in furtherance of the conspiracy, we agree with the state that the statement would still have been admissible as an adoptive admission.

An adoptive admission is a statement offered against a party, which that party has adopted or approved. See Conn. Code Evid. § 8-3 (1) (B). Thus, “[w]hen a party’s conduct indicates that the party assents to or adopts a statement made by another person, the statement is admissible against the party. . . . Specifically, [w]here hearsay accusations are sought to be introduced as evidence against a defendant in a criminal proceeding on grounds that the hearsay was adopted by the defendant . . . the trial court must first determine that the asserted adoptive admission be manifested by conduct or statements which are unequivocal, positive, and definite in nature, clearly showing that in fact [the] defendant intended to adopt the hearsay statements as his own. . . . Generally, statements made within the accused’s hearing, which are relevant and material, to which he makes no reply, may be given in evidence as indicative of conduct on his part, when the circumstances show that he heard, understood and comprehended the statement, and the facts are known to him and he had the opportunity to speak and the circumstances naturally called for a reply from him. ... In other words, under such circumstances, and if no other explanation is equally consistent with [the defendant’s] silence, the defendant’s silence may be construed as an admission of guilt . . . .” (Citations omitted; internal quotation marks omitted.) State v. Pierre, supra, 277 Conn. 72-73.

During the redirect examination of Santos, he testified specifically that the defendant was present during a conversation in an apartment when Lebel, in the presence of others, including the defendant, made statements that directly incriminated the defendant as being involved in the murder of Amini. According to Santos, the defendant made no effort to correct Lebel, did not deny that the crime had occurred and said nothing in response. Thus, the record amply supports that a highly inculpatory statement was made within the defendant’s hearing, that he understood and comprehended the statement, that he had the opportunity to speak and that the circumstances naturally called for a reply from him, yet he made no response. Under these circumstances, we conclude that the defendant’s silence may be construed properly as an admission of guilt.

The crux of the defendant’s argument against the admission of the statement as an adoptive admission rests on the availability of Lebel as a trial witness. Specifically, the defendant argues that because the court made no finding that Lebel was unavailable to testify, the evidence was inadmissible. Under our code of evidence, however, an adoptive admission is not excluded by the hearsay rule, whether or not the declarant is available as a witness. Conn. Code Evid. § 8-3 (1) (B). Thus, although such argument may have merit in the context of Connecticut Code of Evidence § 8-6 hearsay exceptions such as a dual inculpatory statement, it is irrelevant in the context of an adoptive admission, where no threshold finding of unavailability is required. See Conn. Code Evid. § 8-3 (1) (B).

Similarly, the defendant’s argument that the admission of Lebel’s statement violated his right to confrontation falters when analyzing the statement as an adoptive admission. In his confrontation clause argument, the defendant concedes that Lebel’s statement was nontes-timonial, thereby falling outside the ambit of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Nevertheless, the defendant seeks to invoke traditional notions of confrontation, focusing on the reliability of the statement. See State v. Slater, 98 Conn. App. 288, 292, 908 A.2d 1097, (“[traditionally, for purposes of the confrontation clause, all hearsay statements were admissible if [1] the declarant was unavailable to testify, and [2] the statement bore adequate indicia of reliability” [internal quotation marks omitted]), cert, granted on other grounds, 280 Conn. 950, 912 A.2d 484 (2006).

A nontestimonial statement admitted properly as an adoptive admission does not raise confrontation issues. Here, the defendant adopted Lebel’s statement as his own; thus, the lack of opportunity to cross-examine Lebel does not violate the confrontation clause. See United States v. Allen, 10 F.3d 405, 413-14 (7th Cir. 1993) (“[The] lack of opportunity to cross-examine the declarant of a statement the defendant has adopted as his own does not violate the confrontation clause. . . . The reason for this is not difficult to understand. An adoptive admission is a statement that the defendant has adopted as his own. Thus the defendant himself is, in effect, the declarant. The witness against the defendant is the defendant himself, not the actual declarant; there is no violation of the defendant’s right to confront the declarant because the defendant only has the right to confront the witnesses against him.” [Citations omitted; internal quotation marks omitted.]); United States v. Kehoe, 310 F.3d 579, 591 (8th Cir. 2002) (same), cert. denied, 538 U.S. 1048, 123 S. Ct. 2112, 155 L. Ed. 2d 1089 (2003). Thus, because we conclude that Lebel’s nontestimonial statement was admissible as an adoptive admission, the defendant’s confrontation claim fails.

Ill

JURY INSTRUCTIONS

Finally, the defendant claims that the court improperly instructed the jury by referring to burglary in the third degree, robbery in the third degree and kidnapping in the second degree, which were predicate offenses for the charge of felony murder, as “simple” offenses. The defendant claims that the court’s repeated use of the word “simple” to describe these offenses was legally incorrect because the court failed to state accurately the crimes as charged. The defendant also claims that the use of this term was highly likely to confuse the jury and reasonably misled the jury by trivializing the case. The defendant objected to the court’s proposal to use this reference at trial, and the state concedes that the defendant adequately preserved the issue for appeal.

Our standard of review regarding properly preserved claims of improper jury instruction is well established. “In reviewing claims of instructional error, we seek to determine whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions . . . [and] the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. ... 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. Martinez, 278 Conn. 598, 608, 900 A.2d 485 (2006).

Here, it is undisputed that throughout its charge to the jury, the court repeatedly used the term “simple” to distinguish the degrees of the offenses of burglary, robbery and kidnapping and instructed the jury that to find the defendant guilty of felony murder, it must consider whether a “simple or nonaggravated burglary or robbery or kidnapping has occurred and has been proven beyond a reasonable doubt . . . .” Throughout its charge, however, the court explained consistently to the jury that its use of the term “simple” was meant to distinguish the degrees of the offenses.

As the court explained in its instruction: “The degrees of a crime are determined by aggravating factors, which are additional elements which must be proven beyond a reasonable doubt besides the simple burglary or robbery or kidnapping elements. But for the felony murder count, you will consider whether a simple or nonaggra-vated burglary or robbery or kidnapping has occurred and has been proven beyond a reasonable doubt, and I will point the differences out ... to you.”

Subsequently, the court gave a detailed explanation of the elements of the charged offenses of burglary, robbery and kidnapping. In providing these instructions, the court distinguished the degrees of each crime, as charged, and explained the applicability of the predicate offenses as they related to the charge of felony murder. After providing a detailed explanation of the elements of the charged offense of robbery in the first degree, for example, the court explained the definition of what it described as “[s]imple robbery or robbery third.” The court then explained, “[t]his, again, is simple or nonaggravated robbery that I am now giving you, and it is what is meant by robbery in the felony murder count.” Thus, the court adequately explained to the jury that its description of the relevant offenses as “simple” offenses was synonymous with the relevant predicate offenses for the charge of felony murder, the elements of which, the court accurately described. Further, the court provided an accurate instruction on the state’s burden of proof, which is not contested by the defendant.

In determining whether the court’s use of “simple” to describe a nonaggravated offense to the jury was legally inaccurate, we find it compelling that our courts consistently have used the term “simple” to distinguish the degrees of criminal offenses that have aggravating elements. See, e.g., State v. Wright, 246 Conn. 132, 147, 716 A.2d 870 (1998) (explaining that unlike first or second degree robbery, “the force used or threatened in a typical simple robbery does not involve any sort of weapon, and is perpetrated by a single assailant” [emphasis added]); State v. Ghere, 201 Conn. 289, 295, 513 A.2d 1226 (1986) (“[s]imple robbery becomes robbery in the first degree if, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . uses or threatens the use of a dangerous instrument” [internal quotation marks omitted]); State v. Owens, 39 Conn. App. 45, 50-54, 663 A.2d 1108 (“After the trial court gave its instruction on the elements of simple burglary, it gave the following instruction on the elements constituting first degree burglary. . . . The trial judge [further] instructed the jurors that they could find the defendant guilty of first degree robbery if they found, in addition to elements of simple robbery, that the defendant was ‘armed with a dangerous instrument.’ ” [Emphasis added.]), cert. denied, 235 Conn. 927, 667 A.2d 554 (1995). Here, the court’s use of the term “simple” was merely a nontechnical way to distinguish the degrees of the charged offenses for the jury. As such, the court adapted the law to the issues properly and guided the jury in applying the law to the facts.

Thus, in considering the charge as a whole, we conclude that the court’s instruction on felony murder, coupled with its specific instructions on the elements of burglary in the third degree, robbery in the third degree and kidnapping in the second degree, as well as its general instructions on the state’s burden of proof, was legally correct and apprised the jury adequately of the necessary elements for the conviction of felony murder and the state’s burden to prove that offense beyond a reasonable doubt. Accordingly, we conclude that there was no reasonable possibility that the jury misunderstood the court’s instructions regarding the elements necessary to find the defendant guilty of felony murder. We conclude that the court’s instructions could not have misled the jury and, therefore, that the instructions were constitutionally adequate.

The judgments are affirmed.

In this opinion the other judges concurred.

       The jury found the defendant not guilty on charges of robbery in the first degree, kidnapping in the first degree and conspiracy to commit robbery in the first degree. The defendant received a total effective sentence of sixty years and six months imprisonment.

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       Typically, the police conduct a welfare check on the status of an elderly person if, for example, a family member is unable to get in touch with that person.

       According to the medical examiner, positional asphyxia occurs when the body is in a position in which the lungs can no longer operate in the normal fashion and there is not aproper exchange of air. After awhile, Arnini became exhausted and could no longer breathe, which caused his death.

       The Ml name of Detective Schiffer is not apparent from the record.

       With regard to the preparation of the statement, Melanson described the process as follows: “What we do is, while taking the statement, it’s read out loud, it’s on the computer screen, and we’re actually writing the document with him, going over word for word on it. After the document’s completed, that it has been typewritten, it’s printed out, given [to] him for review, and then he reads it.”

       In its memorandum of decision, the court noted that the defendant’s version of events was substantially at odds with the testimony of the officers. The court chose to credit the testimony of the officers and not the defendant. Such a determination is entirely within the province of the trial court. See State v. Hawthorne, 176 Conn. 367, 371, 407 A.2d 1001 (1978).

       Although Fallon testified that he had advised the defendant that he had a right to consult an attorney before questioning and did not expressly state that the defendant had a right to have an attorney present during questioning, any potential defect that this may have caused was cured by the subsequent warnings provided to the defendant. See State v. Gray, 200 Conn. 523, 531, 512 A.2d 217, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).

       The defendant requests that we overrule Supreme Court precedent set forth in State v. James, supra, 237 Conn. 426, with respect to the state’s burden of proof to demonstrate the voluntariness of a confession. The constitutional principles articulated in James have since been reaffirmed by our Supreme Court; see State v. Lawrence, 282 Conn. 141, 146, 920 A.2d 236 (2007); and, therefore, our review is unnecessary.

       “In order to invoke the coconspirator exception to the hearsay rule, [t]here must be evidence that there was a conspiracy involving the declarant and the nonoffering party, and that the statement was made during the course and in furtherance of the conspiracy. . . . The court must make its preliminary determination[s] by a fair preponderance of the evidence . . . .” (Internal quotation marks omitted.) State v. Peeler, 267 Conn. 611, 628, 841 A.2d 181 (2004).

       It is unclear from the testimony of Santos to whom exactly Lebel made the statements. He first testified that Lebel made the statements during a conversation with Santos; however, he later testified that Lebel made the statements to the owner of the apartment while Santos was standing on the other side of the room.

       Despite the state’s argument to the contrary, simply because Lebel made the statement in the presence of Santos and others, that, without more, is insufficient to draw the inference that the statements in some way were designed to promote or facilitate achievement of the goals of the ongoing conspiracy. See, e.g., United States v. LiCausi, 167 F.3d 36, 50 (1st Cir.) (finding that statements of conspirator discussing crime were indicative that coconspirator was merely “blowing off steam or venting anxiety” and could not fairly be considered in furtherance of conspiracy), cert, denied sub nom. Durfree v. United States, 528 U.S. 827, 120 S. Ct. 79, 145 L. Ed. 2d 67 (1999); Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548, 559 (11th Cir. 1998) (“statement that merely discloses the existence of a conspiracy to a non-conspirator, that merely ‘spills the beans,’ with no intention of recruiting [the nonconspirator] into the conspiracy does not further the conspiracy”), cert. denied, 528 U.S. 812, 120 S. Ct. 309, 145 L. Ed. 2d 42 (1999); United States v. Lieberman, 637 F.2d 95, 102 (2d Cir. 1980) (finding that statements of one conspirator did not qualify as being in furtherance of conspiracy because they occurred in “casual conversation,” which made it “difficult to envision how it [the conversation] would have furthered the conspiracy”).

       “A dual inculpatory statement is admissible as a statement against penal interest under § 8-6 (4) of the Connecticut Code of Evidence, which carves out an exception to the hearsay rule for an out-of-court statement made by an unavailable declarant if the statement at the time of its making ... so far tended to subject the declarant to . . . criminal liability . . . that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.” (Internal quotation marks omitted.) State v. Pierre, supra, 277 Conn. 67.

       As part of its charge on the felony murder count, the court instructed the jury as follows: “The defendant is charged with the crime of felony murder, in violation of [General Statutes §] 53a-54c of the Penal Code, which provides as follows: ‘a person is guilty of murder when acting either alone or with one or more persons, he commits or attempts to commit—’
      “Here, we have simple robbery or simple burglary or simple kidnapping second, what I call simple offenses—‘and in the course and the furtherance of such crimes, or the flight therefrom, he or another participant, if any, causes the death of another person other than one of the participants.’ ” (Emphasis added.)


author: LAVINE, J.

text:
    PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY v. SCOTT ANDERSON ET AL.
    (AC 27470)
    Gruendel, Lavine and West, Js.

      Argued February 22
    officially released May 29, 2007

      William J. Melley III, for the appellant (plaintiff).

      Joseph J. Andriola, with whom, on the brief, was Daniel P. Scapellati, for the appellee (third party defendant).
   Opinion

LAVINE, J.

In this action, an insurance carrier sought to recoup the proceeds it paid to its homeowner insureds for a loss they sustained due to the negligence of a general contractor. After obtaining a stipulated judgment against the general contractor, the insurance carrier sought, pursuant to General Statutes § 38a-321, to stand in the shoes of the general contractor to obtain indemnification under a policy of commercial risk insurance that had been issued to the contractor. The trial court granted the motion for summary judgment filed by the commercial risk insurer, concluding that there was no genuine issue of material fact that the risk policy had been cancelled prior to the date of the homeowner’s loss. The resolution of this appeal is controlled by § 38a-321 and Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 910 A.2d 209 (2006).

The plaintiff, Prudential Property and Casualty Insurance Company, appeals from the judgment of the court rendered in favor of the third party defendant, Zurich American Insurance Company (Zurich). On appeal, the plaintiff claims that the court improperly (1) rendered summary judgment in favor of Zurich, (2) found that the risk policy had been cancelled validly, (3) permitted Zurich to disclaim coverage despite its (a) having issued a certificate of risk insurance coverage (certificate) for the defendants, (b) having failed to notify the plaintiffs insured that coverage had been cancelled, although the certificate required it to provide written notice of cancellation, and (c) having provided no means of notifying the plaintiffs insured that coverage had been cancelled. We disagree and affirm the judgment of the trial court.

There is no dispute as to the following facts. At all relevant times, the plaintiff provided homeowners’ insurance protection to Michelle Leville and Kevin Leville for their residence in New Canaan. In the fall of 1999, the Levilles entered into an agreement with Scott Anderson and the Anderson Company, Inc., (collectively Anderson) to construct a second story to their home. Anderson presented the Levilles with a certificate of risk insurance dated November 9,1999, that had been issued by an independent insurance agent, the William F. Malloy Agency, Inc. (Malloy). On November 10,1999, the Levilles sustained extensive water damage to their home because Anderson inadequately covered the roof of the house prior to a storm. The plaintiff paid the Levilles $199,385.37 under the homeowner’s policy for the loss they sustained due to Anderson’s negligence.

In April, 2001, the plaintiff brought a subrogation action against Anderson. The complaint alleged, in part, that “Anderson induced the [Levilles] to engage in a contract by giving a certificate of insurance regarding [insurance] coverage when [Anderson] knew or should have known that, in fact . . . coverage may well not have been in effect.” Anderson was granted permission to implead Zurich as a third party defendant. In its third party complaint, Anderson alleged, in part, that Zurich had issued to it a contract of risk insurance for the period January, 1999, to January, 2000, and that Anderson had paid the premiums thereon. Pursuant to the risk policy, Zurich had agreed to provide a defense and pay damages caused by Anderson’s negligence. Anderson also alleged that Zurich had misled it with regard to its being insured at the time of the Levilles’ loss. Zurich denied the allegations of the third party complaint, asserting that it had cancelled the risk policy on October 19, 1999, due to Anderson’s failure to pay a premium due.

On October 19,2005, the plaintiff and Anderson stipulated that judgment may enter in favor of the plaintiff in the amount of $199,385.37. Thereafter, the plaintiff amended its complaint to assert a claim against Zurich pursuant to § 38a-321,* *** as the judgment against Anderson was thirty days old and had not been paid by Zurich. The plaintiff also alleged that Zurich had induced the Levilles to enter into an agreement with Anderson by permitting its agents to issue a certificate while maintaining that the risk policy was not in effect. In addition, the plaintiff alleged that Zurich’s practice of issuing certificates without a validation safeguard was improper when it knew that persons such as the Levilles would rely on them. Finally, the plaintiff alleged that Zurich had a practice of using certificates for auditing purposes without verifying whether the certificates were used appropriately.

On March 6, 2006, Zurich filed a motion for summary judgment, claiming that there were no genuine issues of material fact that it properly cancelled the risk policy issued to Anderson prior to receiving notice of the Levil-les’ loss. Zurich argued that, pursuant to the risk policy and General Statutes § 38a-324, it was entitled to cancel the risk policy for nonpayment of premiums as long as it gave Anderson ten days notice. Zurich attached numerous documents to its motion for summary judgment to verify its assertion that the risk policy had been cancelled properly for nonpayment of premiums. Zurich also argued that, as a matter of law, it was entitled to summary judgment under the plaintiffs theory that the Levilles had been induced to enter into the agreement with Anderson because Zurich had issued a certificate when no insurance was in effect. Zurich argued that the plaintiff had no greater rights than Anderson and that Anderson was foreclosed from recovering under the risk policy because the policy had been cancelled before the Levilles’ loss occurred.

The plaintiff objected to the motion for summary judgment even though it conceded that the risk policy properly was cancelled prior to the Levilles’ loss because Zurich permitted its agents to issue a certificate to induce the Levilles to enter into an agreement with Anderson when there was no coverage. The plaintiff argued that it was seeking subrogation on equitable, not legal, grounds. Following a hearing on the motion for summary judgment, the court rendered summary judgment in favor of Zurich. The plaintiff appealed.

We will review the plaintiffs claims pursuant to the well established standards governing motions for summary judgment. “The [summary] judgment . . . shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book § 17-49. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing .. . that the party is . . . entitled to judgment as a matter of law. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) Middlesex Mutual Assurance Co. v. Vaszil, 279 Conn. 28, 34, 900 A.2d 513 (2006).

I

The plaintiffs first claim is that the court improperly rendered summary judgment in favor of Zurich because it stands in Anderson’s shoes, and, under the factual circumstances of this case, Anderson was entitled to believe that it effectively was covered by a policy of risk insurance because a certificate was issued on its behalf. We disagree.

In support of its claim, the plaintiff relies on Anderson’s history of risk insurance coverage with Zurich, including the premium due in September, 1999, dishonored checks, correspondence and representations made by Malloy. See footnote 4. The plaintiff states in its brief that “[g]iven the lengthy history between the parties whereby [n]otices of [c]ancellation generated partial payments that resulted in . . . Zurich maintaining insurance on behalf of . . . Anderson . . . Anderson was entitled to rely upon [its] belief that the partial payments he made in the fourth quarter of 1999 sufficed to maintain [its] insurance coverage. The . . . Leville[s] [were] entitled to rely on Anderson that the insurance was effective. . . . Zurich should be estopped from denying that Anderson’s insurance coverage was cancelled effective October 19, 1999.” The plaintiff offers no law to support its claim.

The court decided Zurich’s motion for summary judgment on a third party complaint alleging indemnification pursuant to § 38a-321, which provides in relevant part that “[u]pon the recovery of a final judgment against any . . . corporation ... on account of . . . damage to property, if the defendant in such action was insured against such . . . damage at the time when the right of action arose . . . .” (Emphasis added.) The relevant fact, therefore, is whether Anderson’s risk policy was in effect on the date the Levilles sustained their property loss. The plaintiff concedes that Zurich properly cancelled the risk policy on October 19, 1999. The court, therefore, properly concluded that there is no genuine issue of material fact and that Zurich was entitled to summary judgment as a matter of law. The plaintiff claims that it stands in Anderson’s shoes but fails to acknowledge that Anderson itself had no right to indemnification from Zurich because it had failed to pay the premium due and the policy was cancelled. See Commercial Contractors Corp. v. American Ins. Co., 152 Conn. 31, 40, 202 A.2d 498 (1964). Simply put, there was no risk policy in effect on the date of the Levil-les’ loss.

The plaintiffs claim that it is entitled to indemnification for reasons of equity does not rest on firm ground either. In order to obtain equitable relief, one must act equitably. See LaCroix v. LaCroix, 189 Conn. 685, 689, 457 A.2d 1076 (1983). Anderson was not entitled to indemnification from Zurich because it did not pay the premium due and tried to make partial payment with checks that were dishonored. Because Anderson had no right to indemnification, and the plaintiff has no greater right, it is not entitled to indemnification.

We decline to address the second portion of the plaintiffs claim that Anderson’s coverage history with Zurich and the business practices employed by Zurich and Malloy entitled Anderson to believe that partial payment of the premium due was enough to avoid the policy’s being cancelled. The plaintiff did not raise it before the trial court, and we will not address it for the first time here. See West Farms Mall, LLC v. West Hartford, 279 Conn. 1, 27-28, 901 A.2d 649 (2006).

II

The plaintiffs second set of claims concerns the certificate that Zurich permitted Malloy to issue to the Levilles. The plaintiff claims that the court improperly rendered summary judgment in favor of Zurich because Zurich never notified the Levilles that the risk policy had been cancelled, in keeping with the language of the certificate, and had no mechanism to inform certificate holders when the insurance had been cancelled. Because Zurich owed no duty to the Levilles or the plaintiff, the court properly rendered summary judgment.

The certificate, in part, contained the following language: “This certificate is issued as a matter of information only and confers no rights upon the certificate holder. This certificate does not amend, extend or alter the coverage afforded by the policies below.” Also, “[t]he policies of insurance listed below have been issued to the insured named above for the policy period indicated. Notwithstanding any requirement, term or condition of any contract or other document with respect to which this certificate may be issued or may pertain, the insurance afforded by the policies described herein is subject to all the terms, exclusions and conditions of such policies. Aggregate limits shown may have been reduced by paid claims.” Furthermore, the certificate addressed cancellation: “[sjhould any of the above described policies be cancelled before the expiration date thereof, the issuing insurer will endeavor to mail [ten] days written notice to the certificate holder named to the left, but failure to do so shall impose no obligation or liability of any kind upon the insurer, its agents or representatives.” Kevin Leville is the certificate holder named, and neither of the Levilles were notified that Anderson’s risk policy had been can-celled.

In its brief, the plaintiff argues that “[u]nder all the facts and circumstances of this case, where a [cjertifi-cate of [insurance was issued the day before a loss occurred and the . . . history of the parties indicated that insurance was maintained notwithstanding notices of cancellation . . . Anderson should be entitled to rely upon the fact that a [cjertificate of [insurance was issued as evidence that he was insured on the date of the loss.” The plaintiff claims that Zurich should be estopped from denying it recovery. We are not persuaded.

“There are two essential elements to an estoppel— the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon the belief, and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done. . . . Further, [i]t is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge.” (Citation omitted; internal quotation marks omitted.) Green v. Connecticut Disposal Service, Inc., 62 Conn. App. 83, 91, 771 A.2d 137, cert. denied, 256 Conn. 912, 772 A.2d 1124 (2001).

As stated previously, the plaintiff seeks to stand in the shoes of Anderson and to assert an estoppel claim against Zurich. On the basis of the facts that are not in dispute, Anderson is not in a position to assert an estop-pel claim against Zurich. Anderson knew that the risk policy was to be cancelled if the premium due was not paid. Anderson made partial payments, and several of its checks presented for payment were not honored for lack of sufficient funds. Anderson surely must have questioned the state of the risk policy given its tenuous financial situation and the cancellation notice that it had received from Zurich. Because the plaintiffs rights are no better than Anderson’s, its estoppel claim fails.

We turn next to the plaintiffs claim that Zurich should be required to indemnify it because it gave Anderson a certificate and failed to notify the Levilles that Anderson, in fact, was not insured. This issue was addressed recently by our Supreme Court in Nazami v. Patrons Mutual Ins. Co., supra, 280 Conn. 619, in which it was held that an agent’s issuing a certificate of liability insurance outlining insurance coverage of the home improvement contractor and the insurer’s subsequent cancellation of the policy without notice to the plaintiff homeowner were insufficient to state a cause of action. Id., 631.

In Nazami, the plaintiff alleged that she signed a home improvement contract in reliance on the certificate and that the agent knew that the certificate as drafted might lead the plaintiff to believe that the contractor’s insurance coverage was guaranteed until the policy expiration date. Id., 623. The policy was can-celled, however, prior to the expiration date. Id., 622. The reliance allegations were incorporated in separate counts alleging violations of the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes § 38a-815 et seq., and the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., as well as common-law fraud and negligence. Nazami v. Patrons Mutual Ins. Co., supra, 280 Conn. 621. The language on the certificate was identical to the language on the certificate at issue here. See id., 622.

In the case before us, the plaintiff alleged only one cause of action pursuant to § 38a-321, not numerous claims, as in Nazami. Within its one count complaint, however, the plaintiff also alleged inducement and unethical business practices. General Statutes § 38a-816 (1) prohibits “misrepresentations and false advertising of insurance policies. . . .” See Nazami v. Patrons Mutual Ins. Co., supra, 280 Conn. 625-26. Our Supreme Court held that the complaint in Nazami failed to state causes of action under either CUIPA or CUTPA. The reliance allegations of the complaint were in conflict with the language of the certificate and therefore did not state a cause of action. Id., 626. The certificate contemplated cancellation and that the insurer would endeavor to inform the certificate holder of cancellation before the date of expiration, but it also explicitly disclaimed any liability in the event the policy was can-celled. Id., 627. The certificate at issue here also contained the same language.

The count sounding in common-law negligence in Nazami also failed to state a cause of action because the insurer and the agent owed no duty to the plaintiff homeowner. Our Supreme Court noted that the certificate stated that the insurance afforded was subject to the terms, exclusions and conditions of the policy and disclaimed liability if the policy was cancelled. Id. Further noting that duty is an element of a cause of action in negligence, the court stated “[t]he nature of duty, and the specific persons to whom it is owned, are determined by the circumstances surrounding the conduct of the individual. . . . Although it has been said that no universal test for [duty] has ever been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. . . . Furthermore, [a] duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.” (Citation omitted; internal quotation marks omitted.) Id., 630-31.

The Nazami plaintiff agreed that the only possible source of a duty of care owed her was the certificate. She claimed that the insurer and agent owed her a duty of care to inform her if the contractor’s insurance was cancelled. The Supreme Court disagreed, reasoning that the certificate was issued as a “matter of information only,” conferred “no rights upon” the homeowner and did not constitute a contract between the plaintiff, the insurer and the agent. (Internal quotation marks omitted.) Id., 631. Even if our Supreme Court had assumed that “some contractual relationship was created by the issuance of the certificate that would have given rise to a duty, the certificate clearly disclaims any duty to inform the plaintiff. Although the certificate did provide that the ‘issuing insurer’ would ‘endeavor to mail [ten] days written notice’ to the plaintiff if the policy was cancelled before the expiration of the stated term, it also clearly disclaimed liability in the event that notice was not mailed.” Id. Because the language of the certificate at issue in this case is the quoted language from Nazami and the circumstances of the damage to the respective properties are similar, our Supreme Court’s reasoning is controlling of this appeal.

Troublesome as it may be that Zurich permits its agents to issue certificates when it knows prior to the certificate’s being issued that coverage was cancelled and lacks an identifiable procedure for notifying certificate holders that coverage has been cancelled, the allegations in the plaintiffs complaint do not state a cause of action against Zurich. Furthermore, we cannot conclude that the result is inequitable. The Levilles have been compensated by the plaintiff for the damage to their home pursuant to their homeowner’s insurance, for which they paid the plaintiff a premium.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are Scott Anderson and the Anderson Company, Inc., who are not parties to this appeal.

       During oral argument in this court, counsel for Zurich represented that the agent who provided the certificate was unknown to it. Zurich, however, attached to the motion for summary judgment copies of notices and correspondence it sent to Anderson and included them in the appendix to its appellate brief. Some of the correspondence indicates that courtesy copies were sent to Malloy, who is identified as the agent.

       The risk policy actually was issued by Assurance Company of America, a wholly owned subsidiary of Zurich.

       On August 29, 1999, Zurich sent an invoice to Anderson for the premium due, advising that payment was required by September 19, 1999. Anderson made no payment. Zurich mailed Anderson a cancellation notice on September 29, 1999, stating that the risk policy would be cancelled if it did not receive $6158.70 by October 19, 1999. Anderson made one partial payment of $2000 on October 3, 1999. Anderson subsequently submitted additional partial payment via checks that were dishonored for lack of sufficient funds.

       General Statutes § 38a-321 provides in relevant part: “Each insurance company which issues a policy to any person, firm or corporation, insuring against loss or damage on account of . . . damage to the property of any person, for which loss or damage such person, firm or corporation is legally responsible, shall, whenever a loss occurs under such policy, become absolutely liable, and the payment of such loss shall not depend upon the satisfaction by the assured of a final judgment against him for loss, damage or death occasioned by such casualty .... Upon the recovery of a final judgment against any person, firm or corporation by any person ... if the defendant in such action was insured against such loss or damage at the time when the right of action arose and if such judgment is not satisfied within thirty days after the date when it was rendered, such judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment.”

       General Statutes § 38a-324 (a) provides in relevant part: “After a policy of commercial risk insurance . . . has been in effect for more than sixty days, or after the effective date of a renewal policy, no insurer may cancel any policy unless the cancellation is based on the occurrence, after the effective date of the policy or renewal, of one or more of the following conditions: (1) Nonpayment of premium .... If the basis for cancellation is nonpayment of premium, at least ten days’ advance notice shall be given and the insured may continue the coverage and avoid the effect of the cancellation by payment in full at any time prior to the effective date of cancellation. ...”

       The trial court decided the issue pursuant to the defendants’ motion to strike. Nazami v. Patrons Mutual Ins. Co., supra, 280 Conn. 624.