author: STOUGHTON, J.

text:
    PAUL HABURA v. MARIAN KOCHANOWICZ ET AL.
    (13010)
    Lavery, Spear and Stoughton, Js.
    Argued December 7, 1995
    decision released March 12, 1996

      George J. Markley, for the appellant (plaintiff).

      Ruth Beardsley, for the appellees (defendants).
   STOUGHTON, J.

The plaintiff appeals from the granting by the trial court of the defendants’ motion to open a judgment rendered after a hearing in damages.

The plaintiff instituted suit by abode service of a complaint on August 14, 1992. The complaint alleged that the defendants owned real property in Seymour and that, while the plaintiff was on the premises as an invited guest, he fell into a pool and sustained injuries as a result of the defendants’ negligence.

The trial court granted a motion for default against the defendants for failure to appear and, on November 24,1992, awarded damages to the plaintiff in the amount of $200,000. The defendants moved to open the judgment on June 15, 1993, and the motion was granted.

The plaintiff has appealed arguing that the trial court improperly (1) opened the judgment more than four months after it had been rendered, (2) found that the defendants did not have notice of the judgment until May 27, 1993, (3) failed to consider or apply applicable presumptions regarding issuance and receipt of trial court notices, and (4) opened the judgment when the defendants failed to demonstrate reasonable cause for their failure to appear prior to the rendering of the judgment.

The trial court made the following findings of fact that are relevant to this appeal. “[T]he defendants never received actual notice. They had left on an extended trip to Poland at the time the original abode service of process was made. . . . [T]he defendants, who speak and understand English poorly, did not have notice of entry of any judgment against them until they received a May 27, 1993 letter from the plaintiffs attorney. . . . [Their] defense is that the injury occurred when the plaintiffs wife pushed him and caused him to fall. If proved, this would be a good defense. . . . Despite the fact that there had been negotiations between the plaintiff and the defendants’ insurance carrier, prior to issuance of the writ, not until May 27,1993, six months after the judgment, did the plaintiff notify the defendants and their insurance carrier of the entry of this judgment.”

I

The plaintiff first claims that the trial court improperly granted the motion to open more than four months after the judgment was rendered.

General Statutes § 52-212 provides in part: “(a) Any judgment rendered . . . upon a default . . . may be set aside, within four months following the date on which it was rendered . . . upon the . . . written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good . . . defense in whole or in part existed at the time of the rendition of the judgment . . . and that the . . . defendant was prevented by mistake, accident or other reasonable cause from . . . making the defense.” Practice Book § 377 is cast in similar terms.

General Statutes § 52-212a provides in part: “Unless otherwise provided by law ... a civil judgment . . . may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered . . . .” Practice Book § 326 has similar provisions.

Where the defendants have not received notice of the default judgment, however, the time within which they may move to set aside the judgment is extended by the delay in notification. DiSimone v. Vitello, 6 Conn. App. 390, 393, 505 A.2d 745 (1986). “[I]t is axiomatic that the right to move to open and vacate a judgment assumes that the party who is to exercise the right be given the opportunity to know that there is a judgment to open.” Noethe v. Noethe, 18 Conn. App. 589, 595, 559 A.2d 1149 (1989).

In the present case, the trial court found that the defendants did not have notice of the judgment against them until they received the letter dated May 27, 1993. The motion to open the judgment was filed on June 15, 1993, well within the statutory four month period from the date that the trial court found the defendants had received notice.

II

The plaintiff next claims that the trial court improperly found that the defendants did not receive notice of the entry of judgment against them until May 27, 1993. The existence of notice, actual or constructive, is a question of fact for the trial court. Noethe v. Noethe, supra, 18 Conn. App. 596. “The factual finding of a trial court on any issue is reversible only if it is clearly erroneous.” Sportsmen’s Boating Corp. v. Hensley, 192 Conn. 747, 750, 474 A.2d 780 (1984); Practice Book § 4061. “[WJhere the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn 217, 221-22, 435 A.2d 24 (1980).

The plaintiff claims that “the defendants claim in this case that they had no notice of the judgment, despite the fact that the court’s file would suggest that notice was mailed to them by the clerk of the court, was not credible.” Here, testimony was given by four witnesses, both defendants and their two children, to the effect that the defendants did not receive notice of the judgment against them until May 27, 1993. It was for the finder of fact to hear their testimony and observe their demeanor. Credibility of testimony is a matter for the trial court. Sportsmen’s Boating Corp. v. Hensley, supra, 192 Conn. 752.

III

The plaintiff further claims that the trial court improperly failed to give effect to the presumption, based on standard notations in the court file, that the clerk of the court sent notice of a decision or order to the parties. “Such a notation raises a presumption that notice was sent and received in the absence of a finding to the contrary.” (Emphasis added.) Morelli v. Manpower, Inc., 34 Conn. App. 419, 423, 642 A.2d 9 (1994). Here, evidence was given on this issue, and the trial court did make a finding to the contrary. The trial court, therefore, was free to make and base its decision, as it did, on its finding that notice was not received until May 27, 1993. On the basis of that finding, the motion to open and vacate the judgment was timely made.

IV

Finally, the plaintiff claims that the trial court improperly opened the judgment when the defendants failed to demonstrate reasonable cause for their failure to appear prior to the rendering of the judgment. The trial court, however, specifically found such reasonable cause, i.e., that the defendants did not receive the summons and complaint, and that their first notice of the action was on May 27, 1993. More than that is not required by either the statutes or the case law.

The judgment is affirmed.

In this opinion the other judges concurred.

       Furthermore, there is no suggestion in the trial court’s memorandum that it was asked to consider any such presumption.


source: Caselaw Access Project

author: CRETELLA, J.

license: Public Domain

text:
    MARGARET BALINT ET AL. v. THEODORA CASALE
    (14372)
    (14706)
    Foti, Heiman and Cretella, Js.
    Argued December 13, 1995
    decision released March 12, 1996

      Grant P. Fondo, for the appellant (defendant).

      Heidi G. Winslow, for the appellees (named plaintiff et al.).
   CRETELLA, J.

This appeal from a judgment and certain orders of the housing session of the Danbury Supe-ñor Court involves a dispute between the tenants and the owner of a trailer park. The defendant is the owner of Meadowbrook Vista Trailer Park and the plaintiffs are twenty-six tenants of the trailer park.

The following facts are relevant to this appeal. The plaintiffs filed complaints in the Danbury Superior Court in October, 1994, pursuant to General Statutes § 47a-14h, alleging that the defendant failed to fulfill her legal obligation as a landlord pursuant to General Statutes § 47a-7. The plaintiffs sought, inter alia, an order appointing a receiver of rents and an order for the receiver to use the money to correct conditions in the property that violated local, state or federal law. The twenty-six complaints were treated as a single action in accordance with General Statutes § 47a-14h (b). The trial court found, by way of three interlocutory orders, that eighteen of the twenty-six plaintiffs had established that the defendant had failed to fulfill her legal obligations as a landlord pursuant to § 47a-7 by failing to maintain in good working order the electrical, septic and water systems. The court further found that the defendant had failed to correct overhanging tree limbs, rodent infestation, soil erosion and clogged storm drains. The trial court found insufficient evidence to support the claims of the remaining tenants. The trial court entered several orders that directed that the plaintiffs’ rents be paid over to a court-appointed receiver of rents. The collected moneys were to be used exclusively for repairs and maintenance at the trailer park.

On appeal, the defendant argues that (1) the plaintiffs did not present sufficient evidence to meet the notice requirements of § 47a-14h (b), (2) the evidence presented was insufficient to support the findings of fact and the decision of the trial court, (3) the appointment of a receiver of rents was not supported by the evidence, and (4) the trial court improperly restricted the scope of the receiver’s responsibilities. We disagree with these claims and affirm the judgment of the trial court.

I

The defendant first argues that the plaintiffs failed to present sufficient evidence that they complied with the notice requirements of § 47a-14h (b). According to the defendant, each plaintiff failed to provide sufficient evidence that he or she made a complaint concerning the premises to the agency responsible for the enforcement of the housing code. The defendant argues that although the plaintiffs alleged on standard forms provided by the court that complaints were filed with the department of health of the city of Danbury, they failed to provide sufficient evidence of these complaints to the court.

We initially note that “[t]he requirement of notification to the housing code enforcement agency is not directory but mandatory”; Dugan v. Milledge, 196 Conn. 591, 595, 494 A.2d 1203 (1985); and that “[c]ompliance with this essential condition [is] a requisite for the court’s jurisdiction.” Id. Section 47a-14h (b) does not, however, require that complaints to the health department be made in writing or that the plaintiff produce written copies of such complaints at trial. This conclusion is consistent with the principle that “[t]he words of a statute must be inteipreted according to their ordinary meaning unless their context dictates otherwise.” (Internal quotation marks omitted.) State v. Mattioli, 210 Conn. 573, 576, 556 A.2d 584 (1989).

We agree with the plaintiffs that whether they made the requisite complaints was an issue of fact for the trial court. “The factual findings of a trial court on any issue are reversible only if they are clearly erroneous. . . . This court cannot retry the facts or pass upon the credibility of the witnesses.” (Citations omitted; internal quotation marks omitted.) Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 40, 632 A.2d 1134 (1993). The trial court heard testimony regarding the twenty-six complaints filed with the Dan-bury health department. On the basis of our review of the record, we conclude that the trial court’s finding that the plaintiffs made complaints to the Danbury health department twenty-one days prior to filing their complaints is not clearly erroneous.

II

The defendant next argues that the finding of the trial court that the defendant had violated her statutory obligations under § 47a-7 was not supported by the evidence. We disagree.

The trial court heard extensive evidence from the tenants, the defendant and nonparty witnesses who gave testimony of their own knowledge. The trial court was able to weigh such evidence, assess the credibility of the witnesses, and view numerous exhibits and photographs in determining what problems existed at the mobile home park. The trial court’s conclusion that there were serious health and safety violations is not clearly erroneous. See id., 40.

III

The defendant next argues that the evidence presented did not support the appointment of a receiver of rents. Specifically, the defendant argues that the purpose of appointing a receiver of rents is to secure the property from waste or loss, and, based on the evidence presented, there was no concern for waste or loss. We disagree.

Section 47a-14h (e) (2) provides in relevant part that “[t]he complainant may seek and the court may order interim or final relief including, but not limited to . . . an order appointing a receiver to collect rent or to correct conditions in the property which violate local, state or federal law . . . .” Moreover, the court is given broad powers to order “such other relief in law or equity as the court may deem proper. . . .” General Statutes § 47a-14h (e) (5). The trial court found that it was necessary to appoint a receiver of rents to address and correct the deficiencies that it found concerning the condition of the property. This remedy was not only permitted by the statute but was an appropriate course of action for the trial court to take.

IV

The defendant’s final argument is that the trial court improperly restricted the scope of the receiver’s responsibilities when it prohibited her from paying any taxes or insurance accruing during her appointment. Although the receiver testified that the payment of real estate taxes and insurance premiums are typically included in the responsibilities of a receiver of a mobile home park, the trial court was not bound to adopt the receiver’s recommendations and order that such payments be made.

Section 47a-14h (e) (2) sets forth the duties of the receiver of rents and the purposes for which money may be expended. Payment of such taxes and insurance are not authorized by the statute. The trial court therefore properly refused to allow payment of these items.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 47a-14h provides in relevant part: “(a) Any tenant who claims that his landlord has failed to perform his legal duties, as required by section 47a-7 . . . may institute an action in the superior court having jurisdiction over housing matters in the judicial district in which he resides to obtain the relief authorized by this section and sections 47a-20 and 47a-68. . . .”

       General Statutes § 47a-7 (a) provides: “A landlord shall: (1) Comply with the requirements of chapter 368o and all applicable building and housing codes materially affecting health and safety of both the state or any political subdivision thereof; (2) make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition, except where the premises are intentionally rendered unfit or uninhabitable by the tenant, a member of his family or other person on the premises with his consent, in which case such duty shall be the responsibility of the tenant; (3) keep all common areas of the premises in a clean and safe condition; (4) maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating and other facilities and appliances and elevators, supplied or required to be supplied by him; (5) provide and maintain appropriate receptacles for the removal of ashes, garbage, rubbish and other waste incidental to the occupancy of the dwelling unit and arrange for their removal; and (6) supply running water and reasonable amounts of hot water at all times and reasonable heat except if the building which includes the dwelling unit is not required by law to be equipped for that purpose or if the dwelling unit is so constructed that heat or hot water is generated by an installation within the exclusive control of the tenant or supplied by a direct public utility connection.”

       General Statutes § 47a-14h (b) provides in relevant part: “If, on the same day, more than one tenant from the same building or complex institutes an action under this section and pays the entry fee for such action, unless such fee is waived, the actions shall be treated as a single action. . .

       General Statutes § 47a-14h (b) provides in relevant part: "The action shall be instituted by filing a complaint, under oath, with the clerk of the court. The complaint shall allege (1) the name of the tenant; (2) the name of the landlord; (3) the address of the premises; (4) the nature of the alleged violation of section 47a-7; and (5) the dates when rent is due under the rental agreement and the amount due on such dates. The complaint shall also allege that at least twenty-one days prior to the date on which the complaint is filed, the tenant made a complaint concerning the premises to the municipal agency, in the municipality where the premises are located, responsible for enforcement of the housing code or, if no housing code exists, of the public health code, or to the agency responsible for enforcement of the code or ordinance alleged to have been violated, or to another municipal agency which referred such complaint to the municipal agency responsible for enforcement of such code or ordinance. In the case of a mobile manufactured home located in a mobile manufactured home park, such complaint may be made to the commissioner of consumer protection. . . .”

       The defendant is not appealing this issue as to six of the successful plaintiffs.


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. LAWAUN JENKINS
    (13340)
    Lavery, Schaller and Freedman, Js.
    Argued November 11, 1995
    decision released March 19, 1996

      David M. Wattman, for the appellant (defendant).

      Ronald G. Wetter, deputy assistant state’s attorney, with whom, on the brief, were Donald A. Browne,
      state’s attorney, and Margaret K. Luchansky, assistant state’s attorney, for the appellee (state).
   SCHALLER, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault of a peace officer in violation of General Statutes § 53a-167c and interfering with an officer in violation of General Statutes § 53a-167a. The defendant claims that the trial court improperly (1) failed to instruct the jury on the elements of intent and causation as to the charge of assault of a peace officer, (2) failed to instruct the jury on the element of intent as to the charge of interference with an officer, and (3) violated his right not to be placed in double jeopardy. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 14, 1992, at approximately 7 p.m., Officers Paul Nikola and Diane Pato were on patrol in Bridgeport. Ismaer Rivera and Eva Rivera approached the officers and reported that moments before they had stopped for a red light at the intersection of Noble and Bamum Avenues when an individual approached their car. The Riveras stated that the individual had tried to get in their car, to attack them and rob them, but that they had driven away when the light turned green, leaving the individual behind.

After the Riveras reported the incident, the officers and the Riveras returned to the intersection where they had encountered the defendant, whom the Riveras identified as the individual who had tried to get in their car. Officer David Riehl also arrived as backup. The officers, all wearing police uniforms, informed the defendant that he fit the description of an individual involved in an attempted robbery and that he would have to come with them to the police station.

The defendant pushed two officers away and attempted to flee. All three officers pursued the defendant until Riehl tackled the defendant. The defendant struggled with the three officers and attempted to grab Riehl’s gun. During the struggle, Riehl sustained a painful cut on his elbow. At some point during the struggle, Nikola informed the defendant that he was under arrest. While being taken to a police vehicle, the defendant, by wrapping his legs around a signpost, further hindered Nikola. Nikola and Riehl forcibly removed the defendant from the post and placed him in the police vehicle. Once inside the vehicle, the defendant repeatedly struck his head against a window.

I

The defendant claims the trial court improperly failed to instruct the jury on the elements of intent and causation as to the charge of assault of a peace officer. The defendant argues that, by failing to instruct the jury on essential elements of the crime, the trial court misled the jury and deprived him of his due process right. We find no merit in the defendant’s claims.

A

The defendant did not preserve his claim in the trial court that that court improperly failed to instruct the jury on the element of intent and, therefore, seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). A defendant can prevail on a claim of constitutional error not preserved at trial only by satisfying the four conditions of Golding. Id., 239. “ ‘[W]e are free, however, to dispose of the claim by focusing on the condition that appears most relevant under the circumstances of the case.’ ” State v. Krzywicki, 39 Conn. App. 832, 836, 668 A.2d 387 (1995), quoting State v. Andrews, 29 Conn. App. 533, 537, 616 A.2d 1148 (1992), cert. denied, 224 Conn. 924, 618 A.2d 531 (1993).

A “failure to instruct the jury adequately with regard to an essential element of the crime of assault of a peace officer may result in a due process violation implicating the fairness of the trial. State v. Hinton, 227 Conn. 301, 313-14, 630 A.2d 593 (1993). The issue is one of constitutional magnitude impheating a fundamental right.” State v. Dunbar, 37 Conn. App. 338, 342, 656 A.2d 672, cert. denied, 233 Conn. 906, 657 A.2d 644 (1995). The defendant has failed to show, however, that a constitutional violation exists and that he was clearly deprived of a fair trial.

The defendant argues that the trial court misled the jury when it failed to define intent specifically as to the charge of assault of a peace officer. We note, however, that the trial court first instructed the jury on the charges of attempt to commit robbery in the second degree and attempt to commit larceny in the second degree and, in so doing, specifically defined intent. The trial court also stated: “I remind you that the burden of proving intent beyond a reasonable doubt is on the state.”

“Under the third prong of Golding, a defendant may prevail on an unpreserved constitutional claim of instructional error only if from the substance of the charge rather than its form, it is reasonably possible that the jury was misled. State v. Walton, 227 Conn. 32, 65, 630 A.2d 990 (1993). To be adequate, the charge must have provided the jurors with a clear understanding of the elements of the crime of assault of a police officer, and have afforded proper guidance for the determination of whether those elements were proved beyond a reasonable doubt.” State v. Dunbar, supra, 37 Conn. App. 343. The instruction to the jury must be considered as a whole in determining whether there is a reasonable possibility that the jury was misled. State v. Lemoine, 233 Conn. 502, 509, 659 A.2d 1194 (1995).

Having reviewed the charge as a whole, and noting the similarities between this case and State v. Dunbar, supra, 37 Conn. App. 338, we conclude that it is not reasonably possible that the juxy was misled. See also State v. March, 39 Conn. App. 267, 664 A.2d 1157, cert. denied, 235 Conn. 930, 667 A.2d 801 (1995); State v. Jackson, 34 Conn. App. 599, 642 A.2d 738, cert. granted, 231 Conn. 917, 648 A.2d 165 (1994) (appeal withdrawn October 18, 1994). Although the trial court did not specifically define intent when instructing the jury on the charge of assault of a peace officer, the trial court conveyed to the jury that it must find intent beyond a reasonable doubt in order to convict the defendant. Moreover, the trial court used the word in its ordinary meaning. “ ‘[W]hen a word contained in an essential element carries its ordinary meaning, failure to give the statutory definition will not constitute error.’ ” State v. Dunbar, supra, 344, quoting State v. Sinclair, 197 Conn. 574, 581, 500 A.2d 539 (1985). The defendant’s claim, therefore, fails under the third prong of Golding.

B

The defendant adequately preserved his claim at trial that the trial court improperly failed to instruct the jury on the element of causation. The trial court instructed the jury that § 53a-167c requires the state to prove causation, but did not provide the jury with an expanded definition of causation. The defendant argues that, because of the many definitions of causation, the instruction misled the jury and deprived him of a fair trial.

Riehl testified at trial that when he, Nikola and Pato approached the defendant, the defendant ran away. When Riehl tackled the defendant from behind, the defendant attempted to grab Riehl’s gun and struggled to resist arrest. Riehl further testified that Nikola and Pato were also involved in the struggle, that he “was on the bottom of the whole pile,” and that he received a painful cut on his elbow. The trial court instructed the jury to recall Riehl’s testimony as well as the testimony of the other officers to determine whether the state had proven the defendant guilty beyond a reasonable doubt.

As long as the jury charge provides the jury with a clear understanding of the elements of the crime and guidance for proper determination of whether those elements were present, the charge is constitutionally adequate. See State v. Lemoine, supra, 233 Conn. 509; State v. Sinclair, supra, 197 Conn. 581. Our Supreme Court has discussed the requirements of proper jury instructions on causation in criminal prosecutions in several decisions. See, e.g., State v. Munoz, 233 Conn. 106, 659 A.2d 683 (1995); State v. Leroy, 232 Conn. 1, 653 A.2d 161 (1995); State v. Spates, 176 Conn. 227, 405 A.2d 656 (1978), cert. denied, 440 U.S. 922, 99 S. Ct. 1248, 59 L. Ed. 2d 475 (1979). Most significantly, the Supreme Court recently stated in State v. Munoz, supra, 121-22 n.8: “We emphasize that, as State v. Leroy, supra, [13], suggests, the requirement of language in the jury instructions regarding an efficient, intervening cause is not ironclad. It arises in those cases in which the evidence could support a finding by the jury that the defendant’s conduct was overcome by an efficient, intervening cause, or in which the evidence regarding proximate causation was such that, based on the doctrine of efficient, intervening cause, the jury could have a reasonable doubt about the defendant’s guilt. Thus, in the general run of cases, in which the evidence is susceptible of a finding of only one cause of the harm contemplated by the statute, a statement in the jury instruction referring to an efficient, intervening cause might well be unnecessary.”

We conclude that because this case does not contain a complex issue of causation, the trial court did not improperly deny the defendant’s request for an expanded definition of causation. The facts support the conclusion that, if the defendant had not resisted arrest and struggled, Riehl would not have been injured. “[W]hen a word contained in an essential element carries its ordinary meaning, failure to give the statutory definition will not constitute error.” (Internal quotation marks omitted.) State v. Dunbar, supra, 37 Conn. App. 344. Because a complex issue of causation was not present in this case, the use of the plain meaning of causation did not present a reasonable possibility that the jury was misled nor the defendant deprived of due process.

II

The defendant claims that the trial court improperly failed to instruct the jury that intent is an essential element of interfering with an officer. The defendant did not preserve this claim at trial but seeks review under Golding. We find no merit in the defendant’s claim.

The trial court instructed the jury that “[t]he purpose of the statute .... is to enforce orderly behavior in the important mission of preserving the peace and any act intended to thwart the purposes violated . . . the statute.” (Emphasis added.) The court’s instruction also included the following: “The purpose of General Statutes § 53a-23 is to require nonviolent compliance with a police officer’s decision, right or wrong, to arrest, thus avoiding the dangers of violence to the police and to the arrested person.” Finally, the court stated: “If you come to a conclusion that the state has proven beyond a reasonable doubt the elements of this count then you’ll find the defendant guilty. If not, you will find him not guilty of the charge.”

Although it does not appear in the statutory language of General Statutes § 53a-167a, intent is an element of the crime of interfering with an officer. State v. Nita, 27 Conn. App. 103, 111, 604 A.2d 1322, cert. denied, 222 Conn. 903, 606 A.2d 1329, cert. denied, 506 U.S. 844, 113 S. Ct. 133, 121 L. Ed. 2d 86 (1992); In re Adalberto S., 27 Conn. App. 49, 55, 604 A.2d 822, cert. denied, 222 Conn. 903, 606 A.2d 1328 (1992). The defendant is constitutionally entitled to have the jury instructed on the essential elements of a crime charged. State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988). The state must prove beyond a reasonable doubt that, considering the charge as a whole, there is no reasonable possibility that the jury was misled. State v. Sinclair, supra, 197 Conn. 582; State v. Nita, supra, 112.

On two occasions, we have rejected the identical claim that the trial court must state specifically that intent is one of the three elements of interfering with an officer. State v. Nita, 27 Conn App. 112; State v. Wilson, 17 Conn. App. 97, 108, 550 A.2d 21 (1988). “While it would be preferable to list intent as one of the three elements of the offense of interference with a police officer”; State v. Wilson, supra, 108; it is not constitutionally required. The trial court instructed the jury that the purpose of the statute was to “enforce orderly behavior in the important mission of preserving the peace and any act intended to thwart the purposes violated . . . the statute.” The trial court, therefore, linked intent with criminal purpose. See State v. Sinclair, supra, 197 Conn. 581; State v. Jackson, supra, 34 Conn. App. 608. We conclude that the charge, read as a whole, did not mislead the jury.

Ill

The defendant claims finally that his conviction of interfering with an officer and assault of a peace officer violated his right under the United States and Connecticut constitutions not to be placed in double jeopardy. The defendant did not preserve this claim at trial but seeks review under Golding. We find no merit in the defendant’s claim.

The double jeopardy clause of the fifth amendment to the United States constitution provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .” The double jeopardy clause, therefore, protects a defendant from multiple punishments for the same offense. State v. Ives, 37 Conn. App. 40, 49, 654 A.2d 789, cert. denied, 234 Conn. 906, 659 A.2d 1209 (1995), citing State v. Lonergan, 213 Conn. 74, 78-79, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990); see also State v. Hickman, 235 Conn. 614, 618, 668 A.2d 1321 (1995). “To be entitled to this type of double jeopardy protection, the defendant must satisfy both prongs of a two prong test. . . . First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” (Internal quotation marks omitted.) State v. Ives, supra, 37 Conn. App. 49; see also State v. DePastino, 228 Conn. 552, 571-72, 638 A.2d 578 (1994). Because there is no dispute in this case that the charges arose out of the same transaction, the sole issue is whether the crimes constitute the same offense. See State v. Nixon, 32 Conn. App. 224, 236, 630 A.2d 74 (1993), aff'd, 231 Conn. 545, 651 A.2d 1264 (1995); State v. Raymond, 30 Conn. App. 606, 608-609, 621 A.2d 755 (1993).

In examining the second requirement of the test, we apply the test promulgated in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). State v. Chicano, 216 Conn. 699, 707, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991); State v. Ives, supra, 37 Conn. App. 50-51. Under the Blockburger test, “ ‘[wjhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.’ ” State v. Chicano, supra, 707, quoting Blockburger v. United States, supra, 304. “ ‘In conducting this inquiry we look only to the relevant statutes, the information, and the bill of particulars, not to evidence presented at trial.’ ” State v. Palmer, 206 Conn. 40, 52, 536 A.2d 936 (1988).

The defendant argues that his claim is controlled by our decision in State v. Flynn, 14 Conn. App. 10, 18-19, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988), in which we concluded: “Applying the standard of whether each provision requires proof of an additional fact which the other does not, we conclude that a person could not commit the greater offense of assault on a peace officer without having committed the lesser offense of interfering with a peace officer.” “ ‘Our analysis does not end here, however. The Blockburger test is a rule of statutory construction and its application does not result in a conclusive presumption.’ State v. Russell, 25 Conn. App. 243, 251, 594 A.2d 1000, cert. denied, 220 Conn. 911, 597 A.2d 338 (1991).” State v. Nixon, supra, 32 Conn. App. 238-39.

In State v. Flynn, supra, 14 Conn. App. 19, we held that the Blockburger test could not be rebutted when the defendant was convicted of assaulting and interfering with one peace officer. Our Supreme Court, however, has held on numerous occasions that: “Where crimes against persons are involved, a separate interest of society has been invaded for each violation. Therefore when two or more persons are the victims of a single episode there are as many offenses as there are victims. . . .” (Citations omitted; internal quotation marks omitted.) State v. Lytell, 206 Conn. 657, 666, 539 A.2d 133 (1988); State v. Bunkley, 202 Conn. 629, 659-60, 522 A.2d 795 (1987); State v. Rawls, 198 Conn. 111, 121, 502 A.2d 374 (1985); State v. Madera, 198 Conn. 92, 110, 503 A.2d 136 (1985); State v. Couture, 194 Conn. 530, 565-66, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985).

We note that “a peace officer” in § 53a-167c and “an officer” in § 53a-167a are “in the singular and there is no indication that the defendant can get a bargain rate”; (internal quotation marks omitted) State v. Lytell, supra, 206 Conn. 666-67; when two officers are involved. We conclude that §§ 53a-167c and 53a-167a authorize punishment for separate violations against each officer, regardless of whether the violations were spatially linked.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was acquitted of criminal attempt to commit robbery in the second degree, the lesser included offense of criminal attempt to commit robbery in the third degree and criminal attempt to commit larceny in the second degree. These charges are unrelated to this appeal.

       General Statutes § 53a-167c provides in pertinent part: “(a) A person is guilty of assault of a peace officer . . . when, with intent to prevent a reasonably identified peace officer . . . from performing his duty, and while such peace officer is . . . acting in the performance of his duties, (1) he causes physical injury to such peace officer . . . .”

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

       The four conditions of Golding are the following: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” State v. Golding, supra, 213 Conn. 239-40.

       The trial court instructed the jury as follows: “The next count is the charge of assault on a police officer. The crime of assault on a peace officer is defined in Connecticut General Statutes § 53a-167c. It reads as follows: ‘the person is guilty of assault on a peace officer when with intent to prevent a reasonably identified peace officer from performing his duties, such person causes physical injuries to such peace officer.’ For your purposes a police officer is a peace officer.
      “The definition of physical injury, according to our Connecticut General Statutes is as follows: ‘Physical injury means any impairment or physical condition or pain.’ You’ll have to recall the testimony presented by the officer that he was injured; that would be Officer Riehl and the testimony of the other officers concerning 1he incident. If you come to the conclusion that the state has proven the defendant guilty of this charge beyond a reasonable doubt you -will find him guilty. If they have failed to prove it, then you will find him not guilty.” (Emphasis added.)

       The trial court specifically instructed the jury as follows: “Intentional conduct is purposeful conduct, rather than conduct that is accidental or inadvertent. Now, intent is a mental process. A person may take the stand and testify as to what his or her intention was. And you may believe that testimony or not, according to whether or not you find it warrants belief . . . but, intention offered can only be proven by the actions and statements of the person whose act is being examined. No one can be expected to come into court and testify that he looked into another person’s mind and saw there a certain intention. It is often impossible and never necessary to prove criminal intent by direct evidence. Intent maybe proven by circumstantial evidence as I have explained that term to you; therefore, one way in which the jury can determine what a person’s intention was at any given time, aside from that person’s own testimony, is first by determining what the person’s conduct was, including any statements he made and what the circumstances were surrounding that conduct. And then from that conduct and those circumstances inferring what his intention was. In other words a person’s intention may be inferred from his conduct. You may . . . infer from the facts that [if] the accused engaged in conduct that he intended to engage in that conduct. Now, this inference is not a necessary one. That is, you are not required to infer intent from the accused[’s] conduct, but it is an inference you may draw if you find that it is a reasonable and logical inference.”

       See footnote 5.

       See footnote 5.

       General Statutes § 53a-23 provides: “A person is not justified in using physical force to resist an arrest by a reasonably identifiable peace officer, whether such arrest is legal or illegal.”

       See footnote 3.

       Furthermore, the trial court referred to the purposes of General Statutes § 53a-23. This court has previously held that §§ 53a-23 and 53a-167a (a) must be read together. State v. Privitera, 1 Conn. App. 709, 719, 476 A.2d 605 (1984).

       We note that this court has held that our state constitution does not afford any greater due process rights than those afforded under the federal constitution’s double jeopardy clause in analyzing double jeopardy claims arising from multiple convictions and punishments imposed in a single trial. State v. Adams, 38 Conn. App. 643, 662 A.2d 1327, cert. denied, 235 Conn 908, 665 A.2d 902 (1995); State v. Laws, 37 Conn. App. 276, 295, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995).

       Our conclusion that the defendant’s convictions were the same offense for double jeopardy purposes, therefore, was premised on the observation that: “It is theoretically impossible to have a situation where one, with intent to prevent the performance of duties of a peace officer, either causes physical injury to an officer or throws or hurls a bottle or other object at an officer capable of causing harm without at the same time obstructing, hindering, resisting or endangering that officer in the performance of his duties.” (Emphasis added.) State v. Flynn, supra, 14 Conn. App. 19.

       We note that in State v. Woolcock, 201 Conn. 605, 631, 518 A.2d 1377 (1986), our Supreme Court stated that § 53a-167c “is intended to protect peace officers in the performance of their duty.”


author: FOTI, J.

text:
    HARRALL-MICHALOWSKI ASSOCIATES, INC. v. NATHAN M. SHIPPEE ET AL.
    (14158)
    O’Connell, Poti and Hennessy, Js.
    Argued January 24
    decision released March 19, 1996

      Nathan M. Shippee, pro se, the appellant (named defendant).

      Thomas J. Londregan, for the appellee (plaintiff).
   FOTI, J.

The named defendant, Nathan M. Shippee, appeals from the judgment rendered for the plaintiff. As a prehminary matter, we must determine whether Shippee’s appeal has been taken from a final judgment.

The plaintiff commenced this action in two counts. The first count was brought against Shippee for breach of contract, the second against Shippee and a limited partnership, Country Club of New England Group Limited Partnership. The action alleged that the plaintiff had contracted with Shippee to render professional services in formulating a site development plan for a country club in East Lyme in which both defendants had an interest. The plaintiff claimed that the services were performed and that it was owed $20,407.64. The second count alleged that Shippee entered into the contract individually and as agent for the limited partnership. The sole issue at trial appears to have been whether Shippee entered into the contract individually or in another capacity. Shippee alleged that he was acting in a corporate capacity, as president of Resource Ventures, Inc., a general partner of the limited partnership.

The trial court concluded that Shippee had signed the agreement in his individual capacity and ordered that “judgment may enter in favor of the plaintiff in the amount of $20,407.64 plus interest at the statutory rate until paid.” The court’s memorandum of decision states that no appearance was filed by the limited partnership and that “[djefaults for failure to appear and failure to plead were entered . . . against the defendant . . . .”

Our review of the record discloses that the plaintiff filed a motion for default for failure to appear against both defendants, and, although that motion was denied on January 19, 1993, as against Shippee, who had appeared, it was never granted as against the limited partnership, which had not filed an appearance. Because the limited partnership was never defaulted for failure to appear, the trial court could not have included that entity in its judgment.

In determining what is a final judgment for purposes of appellate review, we rely on the standard articulated in State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983). In re Elizabeth H., 40 Conn. App. 216, 218, 669 A.2d 1246 (1996). The partial judgment rendered neither terminated a separate and distinct proceeding nor so concluded the rights of the parties that further proceedings could not affect them. State v. Curcio, supra, 31. We conclude that no final judgment was rendered because a judgment against the limited partnership could impact the nature and the amount of liability incurred by Shippee. See T.P. Brewer Construction Co. v. F & G Associates, 34 Conn. App. 714, 715-16, 643 A.2d 308 (1994).

The lack of final judgment is a threshold question that implicates the subject matter jurisdiction of this court. Schick v. Windsor Airmotive Division/Barnes Group, 31 Conn. App. 819, 822, 627 A.2d 478 (1993). If there is no final judgment, we cannot reach the merits of the appeal. General Statutes §§ 51-197a and 52-263; Practice Book § 4000.

The appeal is dismissed.

In this opinion the other judges concurred.

       The parties were advised to file simultaneous supplemental briefs and to be prepared to argue the issue of whether a final judgment existed pursuant to State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983).

       The judgment file states that the limited partnership was defaulted for failure to appear and that “it is adjudged that the plaintiff recover of the defendants . . . .”

       The record discloses that a motion for default for failure to plead against the limited partnership was improperly granted on February 18, 1993. That motion could not be properly granted because the limited partnership had not appeared and no action had been taken on the motion for default for failure to appear.


author: HEIMAN, J.

text:
    BANK OF BOSTON CONNECTICUT v. SCOTT REAL ESTATE, INC., ET AL.
    (13753)
    Dupont, C. J., and Foti and Heiman, Js.
    Argued November 30, 1995
    decision released March 19, 1996

      Robert L. Trowbridge, with whom, on the brief, were Anthony C. DeFilippis, Jr., and Michael J. Rose, for the appellants (defendants).

      Robert A. Izard, Jr., with whom, on the brief, was LindaL. Morkan, for the appellee (substitute plaintiff).
   HEIMAN, J.

The defendants appeal from the judgment of the trial court rendered after the court granted the plaintiffs motion for summary judgment. The defendants claim that the trial court improperly found that no issue of material fact existed as to the defendants’ special defenses and counterclaim. The defendants argue that issues of material fact existed as to whether (1) the plaintiff failed in its duty to notify the defendants of foreclosure proceedings affecting a collaterally assigned mortgage, (2) such alleged failure constituted a breach of the implied covenant of good faith and fair dealing that existed between the parties, (3) such alleged failure should result in the plaintiffs being equitably estopped from collecting the debt owed by the defendants, and (4) the plaintiff made an election of remedies under General Statutes § 42a-9-505 (2). We affirm the judgment of the trial court.

The following facts are relevant to a resolution of this appeal. On January 13, 1987, Bank of Boston Connecticut (BBC) loaned $650,000 to Scott Real Estate, Inc. (SRE), pursuant to a demand promissory note (BBC note). The guarantors of the BBC note were James Scott, Raymond Lubus and John Novak (guarantors). SRE borrowed the $650,000 from BBC in order to loan that money to Dana Investment Corporation (Dana). As security for the BBC note, SRE and Lubus executed a collateral assignment to BBC of a promissory note made by Dana and payable to SRE and Lubus in the amount of $650,000 (Dana note), and a mortgage deed (Dana mortgage) in favor of SRE and Lubus encumbering two parcels of property in Danbury owned by Dana (Danbury properties). BBC also received and recorded on the Danbury land records an outright assignment of the Dana mortgage. The Danbury properties were also subject to prior mortgages.

Between December, 1987, and August, 1988, the prior encumbrancers of the Danbury properties commenced foreclosure proceedings (Danbury foreclosures), and BBC was named as a defendant in those actions because of the outright assignment of the Dana mortgage to BBC. BBC did not notify SRE or the guarantors of the Danbury foreclosures at that time. In September, 1988, SRE and Dana entered into a business venture that resulted in a profit to Dana of approximately $757,000. The profit due Dana was initially received by SRE, and SRE subsequently released the money to Dana on December 1, 1988, despite Dana’s obligations to SRE under the Dana note and SRE’s obligations to BBC under the BBC note. Subsequent to December 1, 1988, SRE learned of the Danbury foreclosures and defaulted on the BBC note. BBC demanded payment on March 4, 1991.

BBC, the original plaintiff in this case, brought an action against SRE and the guarantors (defendants) to recover the moneys due BBC pursuant to the BBC note. The defendants raised three special defenses and one counterclaim. As special defenses, the defendants claimed that (1) the plaintiffs acceptance of the outright assignment of the Dana mortgage and its failure to notify the defendants of the Danbury foreclosures released the defendants of their liability to the plaintiff, (2) the plaintiff was estopped from collecting on the BBC note because it failed to notify the defendants of the Danbury foreclosures and (3) the plaintiff should be deemed to have elected to proceed exclusively against the Dana note and the Dana mortgage in satisfaction of the defendants’ debt to the plaintiff. In the counterclaim, the defendants asserted that the plaintiff breached its duty of good faith and fair dealing because it did not notify the defendants of the Danbury foreclosures. The plaintiff moved for summary judgment and the court granted the motion. This appeal followed.

The defendants claim that the trial court improperly granted the plaintiffs motion for summary judgment because several issues of material fact existed as to the defendants’ special defenses and counterclaim. We do not agree.

“The standard for appellate review of a trial court’s decision to grant a summary judgment motion is well established. Practice Book § 384 provides that 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. Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991). Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Don-nelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. Practice Book §§ 380, 381; Burns v. Hartford Hospital, [192 Conn. 451, 455, 472 A.2d 1257 (1984)]. In deciding amotion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978). Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The test is whether a party would be entitled to a directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982). Connecticut Bank & Trust Co. v. Carriage Lane Associates, supra, 781, citing Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). Trotta v. Branford, 26 Conn. App. 407, 409-10, 601 A.2d 1036 (1992).” (Internal quotation marks omitted.) New Milford Savings Bank v. Roina, 38 Conn. App. 240, 243-44, 659 A.2d 1226 cert. denied, 225 Conn. 915, 665 A.2d 609 (1995).

I

The cornerstone of the defendants’ first and second special defenses and their counterclaim is that the plaintiff had a duty to notify the defendants of the Danbury foreclosures. The defendants posited that if the plaintiff had given notice to the defendants of the foreclosures, then the defendants would not have released the $757,000 profit to Dana, but instead would have remitted that money to the plaintiff in satisfaction of the BBC note. In their first argument on appeal, the defendants assert that a genuine issue of material fact existed as to the plaintiffs duty to notify the defendants of the Danbury foreclosures. The existence of this alleged duty selves as the basis of the defendants’ second and third arguments on appeal that the plaintiff breached its implied covenant of good faith and fair dealing, and that the plaintiff should be equitably estopped from collecting on the BBC note. We conclude that the trial court properly found that no genuine issue of material fact existed as to the plaintiffs duty to notify the defendants of the Danbury foreclosures, and, consequently, that the defendants’ first three arguments on appeal are without merit.

The defendants claim that the plaintiffs obligation to notify the defendants of the Danbury foreclosures is clearly evidenced in the collateral assignment of the Dana note and mortgage to the plaintiff, and that, therefore, an issue of fact was created as to the duty of notice. “Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact; Gurliacci v. Mayer, 218 Conn. 531, 567, 590 A.2d 914 (1991); Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 199, 520 A.2d 208 (1987); [w] here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. Thompson & Peck, Inc. v. Harbor Marine Contracting Corp., 203 Conn. 123, 131, 523 A.2d 1266 (1987). . . . Mulligan v. Rioux, 229 Conn. 716, 740, 643 A.2d 1226 (1994). We regard this case to present such definitive contract language.

“It is the general rule that a contract is to be interpreted according to the intent expressed in its language and not by an intent the court may believe existed in the minds of the parties. Id.; Barnard v. Barnard, 214 Conn. 99, 110, 570 A.2d 690 (1990); Powel v. Burke, 178 Conn. 384, 387, 423 A.2d 97 (1979). When the intention conveyed by the terms of an agreement is clear and unambiguous, there is no room for construction. Gino’s Pizza, of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 138, 475 A.2d 305 (1984). [A] court cannot import into [an] agreement a different provision nor can the construction of the agreement be changed to vary the express limitations of its terms. Hatcho Corp. v. Della Pietra, 195 Conn. 18, 21, 485 A.2d 1285 (1985); see also Bank of Boston Connecticut v. Schlesinger, 220 Conn. 152, 159, 595 A.2d 872 (1991) ([i]t is not within the power of courts to create new and different agreements); Jay Realty, Inc. v. Ahearn Development Corp., 189 Conn. 52, 55, 453 A.2d 771 (1983) (same); Cirrito v. Turner Construction Co., 189 Conn. 701, 706-707, 458 A.2d 678 (1983) ([i]n interpreting a contract courts cannot add new or different terms); Powel v. Burke, supra, 388.” (Internal quotation marks omitted.) Levine v. Massey, 232 Conn. 272, 277-79, 654 A.2d 737 (1995).

In ruling on the plaintiffs motion for summary judgment, the trial court determined as a matter of law that the BBC loan documents did not create an obligation on the part of the plaintiff to notify the defendants of foreclosure proceedings relating to the Danbury properties. We agree with that determination. The collateral assignment of the Dana note and mortgage only requires the plaintiff, upon default of the defendants under the terms of the BBC note, to give ten days’ notice to the defendants of the plaintiffs intention to become the absolute owners of the collateral. The collateral assignment creates no obligation on the part of the plaintiff to give notice to the defendants of third party foreclosure proceedings affecting the Danbury properties, the properties encumbranced by the Dana mortgage. Furthermore, the notice provision at issue was not triggered at the time of the foreclosures because at that time, the defendants were not in default of their obligations under the BBC note. In fact, it was not until after the defendants became aware of the Danbury foreclosures that they defaulted in their obligations under the BBC note.

Thus, because the documents constituting the loan agreement between the parties did not create an obligation on the part of the plaintiff to give notice to the defendants of foreclosure proceedings affecting the Danbuiy properties, we conclude that the trial court properly determined that the plaintiff was entitled to judgment as a matter of law. Consequently, the defendants’ first three arguments on appeal, which are based on the claimed existence of a material issue of fact as to whether the plaintiff had the obligation to give notice, are without merit because the plaintiff had no such obligation.

II

In their third special defense, the defendants claimed that the plaintiff should be deemed to have elected to proceed exclusively against the obligors of the Dana note and mortgage, thereby releasing the defendants from their obligations to the plaintiff under the BBC note. The defendants’ final argument on appeal is that such a defense may be raised pursuant to § 42a-9-505 (2), and that the trial court improperly found that no genuine issue of material fact existed as to whether the plaintiff made an election of remedies under that statute. We do not agree. Article 9 of the Connecticut Uniform Commercial Code does not apply “to the creation or transfer of an interest in or lien on real estate, including a lease or rents thereunder . . . .” General Statutes § 42a-9-104 (j); Burritt Mutual Savings Bank of New Britain v. Tucker, 183 Conn. 369, 372, 439 A.2d 396 (1981). Moreover, under the terms of the collateral assignment of the Dana note and mortgage, if the plaintiff intended to become the absolute owner of the collateral, it was to notify the defendants of such intent within ten days of the defendants’ default of their obligations pursuant to the BBC note. The defendants provided no proof that the plaintiff ever invoked this provision of the collateral assignment. Thus, the trial court properly found that no genuine issue of material fact existed as to the defendants’ third special defense. Consequently, the defendants’ fourth argument in support of their appeal is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 42a-9-505 (2) provides: “In any other case involving consumer goods or any other collateral a secured party in possession may, after default, propose to retain the collateral in satisfaction of the obligation. Written notice of such proposal shall be sent to the debtor if he has not signed after default a statement renouncing or modifying his rights under this subsection. In the case of consumer goods no other notice need be given. In other cases notice shall be sent to any other secured party from whom the secured party has received, before sending his notice to the debtor or before the debtor’s renunciation of his rights, written notice of a claim of an interest in the collateral. If the secured party receives objection in writing from a person entitled to receive notification within twenty-one days after the notice was sent, the secured party must dispose of the collateral under section 42a-9-504. In the absence of such written objection the secured party may retain the collateral in satisfaction of the debtor’s obligation.”

       Subsequent to the filing of the appeal, WHBB Real Estate Limited Partnership purchased the BBC note, and is now the substituted plaintiff and the appellee in this action.

       The trial court stated: “If [the defendants] wanted notice of any foreclosure, [they] should have negotiated that right with the [plaintiff] at the time of the assignment. Lacking that agreement, there was no legal requirement that the [plaintiff] notify the defendant of the foreclosure of the [Dan-bury] properties.”

       The collateral assignment contains the following pertinent language: “That upon default by Scott or any guarantor of the note described in Schedule ‘A’, [the BBC note] Lubus and Scott agree that the [BBC] shall be and become the absolute owner of the collateral, upon ten (10) days’ written notice to their attorney ... or to either of them and that the [BBC] may, upon said default and at the same time as said notice is given to Lubus and Scott or thereafter at the [BBC’s] option, give notice to the makers of said note described in Schedule ‘B’, [the Dana note] that the [BBC] has become the absolute owner of the collateral, and that the [BBC] may take such other action as it may deem necessary or desirable to protect its interest in the collateral.”

       See footnote 1.

       See footnote 4.


author: FOTI, J. SPEAR, J.,

text:
    STATE OF CONNECTICUT v. RICHARD POUNCEY
    (12128)
    Foti, Heiman and Spear, Js.

      Argued November 7, 1995
    decision released March 19, 1996

      Lauren Weisfeld, assistant public defender, for the appellant (defendant).

      Carolyn K. Longstretk, assistant state’s attorney, with whom, were Elizabeth Baran, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, for the appellee (state).
   FOTI, J.

The defendant appeals following a jury trial, from the judgment of conviction, of two counts of attempted assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1). The trial court sentenced the defendant to an effective term of imprisonment of twenty-four years, suspended after twenty years, followed by a five year probationary period. On appeal, the defendant claims that the trial court improperly (1) instructed the juiy on the issue of self-defense, (2) denied his motion for a mistrial, and (3) instructed the jury on the concept of reasonable doubt. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On the evening of December 14,1991, four women had dinner at a restaurant on York Street in New Haven. As they left the restaurant, they observed the defendant and a pregnant female engaged in a heated argument at the corner of York and Chapel Streets. As the pregnant woman walked away from the defendant, he walked quickly toward the women appearing to be extremely angry and emotionally upset. The women were apprehensive and moved closer together to give the defendant room to pass them on the sidewalk. When the defendant reached them, he asked, “What the hell is wrong with you?” “Are you looking for trouble?” or “What the fuck are you looking at?” He then collided with one of the women, punched her in the jaw and knocked her down. A second woman told the defendant, “Keep going, we don’t want any trouble.” The defendant then lunged at her, grabbed her by the front of her coat collar and, in a savage and wild manner, began to slash, punch and stab at her with a box cutter. The victim sustained a cut behind her left ear that was two inches long and one-quarter inch deep. Her coat was cut in four or five places.

As the first woman got up from the sidewalk, she attempted to pull the second woman away from the defendant. The defendant then slashed her face with the box cutter, cutting her upper lip and slashing her lower lip open from its lower edge down to her chin, causing her to fall back down to the sidewalk.

The defendant left when a parking lot attendant, who saw the victims bleeding, intervened. When the police arrived, they found the defendant hiding in an alley a short distance away. The police retrieved the box cutter, detained the defendant and returned him to the scene of the assault. After the victims identified the defendant as the assailant, the police arrested him and placed him in a police cruiser, at which time he stated that he had “cut the fucking bull dikes because they were surrounding [him]. Who gives a fuck about them.”

I

The defendant claims that the trial court improperly instructed the jury on self-defense, specifically as to reasonable force, provocation, withdrawal after initial aggression and the duty to retreat. He also argues that the trial court charged that the state had actually disproved self-defense, effectively directing the jury on its verdict. We do not agree.

The defendant alleges that the jury was improperly instructed as to its evaluation of both the danger that the defendant claimed to have faced and the reasonableness of his response to that danger. The trial court instructed that reasonable force is “that force which an average person of ordinary intelligence in like circumstances would judge to be necessary to prevent injury and no more. Reasonable force is the amount of force that would be used by an average person of ordinary intelligence acting under the same circumstances.” The defendant posits that this portion of the instruction improperly substituted an objective standard for the subjective-objective standard contained in § 53a-49 (a) (2). He argues that the charge did not properly explain to the jury its need to examine and evaluate the defendant’s subjective belief as to the amount of force he felt necessary to defend himself.

An instruction on reasonable force is adequate if it informs the jury that it must examine and evaluate the defendant’s subjective belief as to the amount of force necessary. State v. Prioleau, 235 Conn. 274, 288, 644 A.2d 743 (1995). Without an express instruction to consider the defendant’s subjective beliefs concerning the reasonableness of the degree of force used, it is incorrect to define “reasonable force” as “ ‘that force which an average person of ordinary intelligence in like circumstances would judge to be necessary to prevent injury and no more’. ...” State v. Anderson, 227 Conn. 518, 533, 631 A.2d 1149 (1993).

The defendant admitted at trial that he cut both women with the box cutter. He argued, however, that he did so in self-defense. He claimed that after the four women had lined up across the sidewalk in front of him, blocking his path, he told them to mind their own business, pushed through them, was hit from behind, turned and was kicked in the groin. He maintained that he thought his life was in danger and cut the victims to defend himself.

The defendant filed a request to charge on the issue of self-defense. The trial court instructed the jury that the state had the burden of disproving self-defense beyond a reasonable doubt, and that the defendant “was justified in using reasonable physical force upon [the two women] to defend himself from what he reasonably believed to be the use of physical force or the imminent use of physical force, and he was entitled to use such degree of force which he reasonably believed to be necessary for that purpose except that [he] was not permitted to use deadly physical force unless he reasonably believed that [either of the two women] or another in that group was inflicting or about to inflict great bodily harm.” The court defined reasonable force and proceeded to instruct on the state’s burden of disproving self-defense.

The court instructed the jury that the state would sustain its burden of refuting the self-defense claim if it proved that the defendant did not believe that he was in imminent danger of death or serious physical injury, or that he did not have reasonable grounds for that belief, or that the force used was unreasonable, or that the defendant was the initial aggressor or provocateur and did not attempt to withdraw. The instruction directed the jury to consider the danger or apparent danger to the defendant “to be determined from his standpoint at the time of the action and under all of the existing circumstances.” The court further charged that “[t]he act leading to the defendant’s claim of self-defense need not be an actual threat of assault. The test is not what the person actually intends but what that other person’s act caused the defendant to reasonably believe was his intention or her intention.” The court then stated: “In other words, the danger need not be actual. If the defendant reasonably believed that the danger was actual, real, imminent or unavoidable. In judging the danger to himself, however, the defendant is not required to act with infallible judgment.” The court also instructed that apparent danger alone was insufficient to justify the use of force and that the defendant’s belief of danger had to be honest and sincere.

Our standard of review on this claim is whether it is reasonably possible that the jury was misled. State v. Anderson, supra, 227 Conn. 526-27. This court will review the entire charge and will not judge an individual instruction in artificial isolation. State v. Reed, 174 Conn. 287, 305, 386 A.2d 243 (1978). We test whether the charge, read as a whole, presents the case to the jury so that no injustice will result. State v. Dyson, 217 Conn. 498, 502, 586 A.2d 610 (1991). We conclude that the trial court clearly directed the jury to evaluate the defendant’s belief in the danger he claimed to have faced from the four women, from his subjective perspective, and that it is not reasonably possible that the jury was misled. State v. Prioleau, supra, 235 Conn. 291.

Our review of the entire charge also leads us to conclude that the defendant’s claims that the trial court improperly instructed on the rule concerning provocation, the principle of initial aggressor and the doctrine of communicated withdrawal, are without merit. Id., 291-95.

The defendant correctly claims that the trial court improperly instructed the jury on the duty to retreat in that it failed to instruct that the use of deadly physical force in defending oneself is impermissible only if the state proves beyond a reasonable doubt that a defendant knows that he can retreat with complete safety. General Statutes § 53a-19 (b). While the jury was instructed that its duty was to determine whether the defendant could have retreated with complete safety, no instruction was given that the defendant was required to know that a retreat in complete safety was available. See State v. Ash, 231 Conn. 484, 651 A.2d 247 (1994).

The issue presented is whether the court’s omission of the necessity of this knowledge by the defendant, when viewed in light of the charge that was given concerning the duty to retreat, the charge as a whole, the context of the contested facts of the case, and the theory of defense, was harmless beyond a reasonable doubt.

“[T]he question of harmlessness of a jury instruction is properly gauged by reference to both the language of the entire charge and the evidence in the case Id., 496-97. The question of whether the defendant knew that he had away of retreating in complete safety, was not a critical circumstance in the jury’s evaluation of his claim of self-defense. The defense’s theory of the case was primarily that the defendant lacked the specific intent to cause serious physical injury. The issue of self-defense, as the evidence was presented, turned on whether the jury rejected that defense because the state had proven either that the defendant did not believe that any of the women were going to inflict great bodily harm on him, or that such a belief was unreasonable, or that the defendant was the initial aggressor or that he provoked the incident.

Our examination of the evidence presented, the contested issues of fact and the theory of defense leads us to conclude that there is no significant question raised as to whether the defendant’s subjective knowledge that he could avoid the use of force with complete safety by retreating was a critical circumstance. State v. Prioleau, supra, 235 Conn. 274. We conclude, therefore, that the trial court’s omission was harmless beyond a reasonable doubt.

II

The defendant next claims that his right to an impartial jury and to a fair trial was violated by the prosecutor’s violation of a court order and by her remarks during her closing argument. He alleges that the trial court improperly denied his motions for mistrial.

Prior to trial, the defendant filed a motion to exclude certain evidence from being presented at trial to impeach his credibility, including evidence regarding his incarceration. The motion was not ruled on, but the trial court ordered the state, prior to its introducing any such evidence, to make an offer of proof outside the jury’s presence.

During cross-examination of the woman with whom the defendant had been arguing just prior to the incident, the following exchange took place.

“[Prosecutor]: Isn’t it a fact that you are . . . afraid of [the defendant]?
“A: Was afraid of him, yes.
“[Prosecutor]: Isn’t it true that you’re afraid that if he gets out in the street again and you don’t help him out that he could hurt you?
“A: Absolutely not.”

The defendant, in the absence of the jury, then moved for a mistrial. The court denied the motion and gave the following curative instruction upon the jury’s return: “Ladies and gentlemen, the question that was asked just before you were excused along the lines of are you afraid that if [the defendant] is not convicted and after he gets out and you didn’t help him whether you would be afraid he might hurt you. In substance, that was the question. It created the implication that the defendant is now incarcerated and the fact of the matter is he is incarcerated. He is incarcerated and he is on this case because he has been unable to post the bond that is set by the court. Now, that is a situation that frequently occurs when someone is financially unable to post the bond. When they are arrested a bond is set by the court and if the defendant is able to post the bond he is released on bond until the case comes up. If he can’t post the bond he has to be held incarcerated until the case comes up. That’s the situation with [the defendant]. The fact that he’s incarcerated, just been unable to post the bond, is not evidence against him, is not to be held by the jury against him in any way. It has nothing to do with his guilt or innocence in this case. Now, rephrase the question please.”

While we agree that the prosecutor violated the court’s order and improperly referred to the defendant’s incarceration, we recognize that the trial court is in the best position to determine the extent of the prejudicial effect. State v. Harvey, 27 Conn. App. 171, 178, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992). The trial court, in its discretion, concluded that, under all of the circumstances, the improper reference to the defendant’s incarceration was within the healing power of a curative instruction and did not require the drastic response of a mistrial. State v. Tucker, 226 Conn. 618, 629, 629 A.2d 1067 (1993).

The court’s instruction was both curative and informative. While the court did not instinct the jury to forget the question’s implication, the court did instruct the jury not to hold the defendant’s incarceration against him. Moreover, the trial court’s instruction informed the juiy why the defendant was incarcerated and further explained that evidence of pretrial incarceration, due to an inability to post bond, has no probative value. We conclude that the trial court did not abuse its discretion by denying the defendant’s motion for a mistrial and that its denial did not deprive the defendant of a fair trial.

The defendant also claims that he was deprived of a fair trial by the prosecutor’s remarks during final argument and that the trial court, therefore, improperly denied his motion for a mistrial.

The prosecuting attorney opened her final argument as follows: “[The four women] got together for dinner on December 14,1991, a nice relaxing dinner. They had plans to go out after dinner. They were minding their own business when they were confronted with what suburbanites would call the ultimate urban nightmare.”

The defendant’s counsel made no objection and the prosecutor’s initial argument was completed. During his summation to the jury, the defendant’s counsel characterized the challenged comment as racist. On closing argument, the prosecutor, in replying to the defendant’s closing arguments regarding self-defense, commented that “[t]hese women were in the wrong place at the wrong time in an urban neighborhood.” Again no objection was made by the defendant’s counsel. After the luncheon recess the defendant moved for a mistrial. The court denied the motion and also denied the defendant’s request for a curative instruction. The court stated: “I don’t think that it is of such significance that it calls for any remarks by the court. If you felt it was significant you should have interrupted at the time. Something you gave some thought to over lunch apparently.”

“The focus of our review is on the prosecutor’s comments viewed in the context of the entire trial, not on the culpability of the prosecutor. . . . Moreover, we will not disturb the trial court’s mistrial ruling unless the challenged remarks have so infected the trial with unfairness as to make the resulting conviction a denial of due process.” (Citation omitted; internal quotation marks omitted.) State v. Castonguay, 218 Conn. 486, 508, 590 A.2d 901 (1991).

The trial court not only expressly found that the prosecutor’s remarks were insufficiently prejudicial to warrant a mistrial, but concluded that they were not sufficiently prejudicial to require a curative instruction. Therefore, the trial court did not consider the remarks to rise to the level of “prosecutorial misconduct.” “When a verdict is challenged on the basis of the prosecutor’s allegedly prejudicial remarks, the defendant bears the burden of proving the remarks prejudicial in light of the whole trial.” State v. Floyd, 10 Conn. App. 361, 364, 523 A.2d 1323, cert. denied, 203 Conn. 809, 525 A.2d 523, cert. denied, 484 U.S. 859, 108 S. Ct. 172, 98 L. Ed. 2d 126 (1987). The trial court’s ruling “is entitled to weight because of the vantage point from which it can observe and evaluate the circumstances of the trial. The trial court is in a better position to determine the propriety of the remarks of counsel and whether or not they are harmful.” State v. Glenn, 194 Conn. 483, 493, 481 A.2d 741 (1984). Our review of the record convinces us that the defendant has not sustained his burden of proving the remarks prejudicial in light of the whole trial.

Even if we assume, arguendo, that the remarks were more than inartfully phrased statements of a zealous prosecutor, and therefore improper, we must still consider them in the context of the entire trial and make a determination as to whether the fairness of the trial was compromised. State v. Sherman, 38 Conn. App. 371, 397, 662 A.2d 767, cert. denied, 235 Conn. 905, 665 A.2d 905 (1995).

“In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted.) State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987).

The prosecutor’s comments were isolated, brief and confined to closing arguments. Defense counsel responded to the prosecutor’s first comment. The prosecutor’s comments were not the culmination of an improper theme developed throughout the trial, nor was a pattern of misconduct discernible. The defendant’s argument of a cumulative prejudice, suffered as a result of the state’s earlier reference to his incarceration, is without merit. Furthermore, the trial court clearly instructed the jury that the defendant was entitled to the presumption of innocence, and that the arguments of counsel during final summation were not evidence. The court also admonished the jury to “keep in mind that this defendant . . . justly relies on you to carefully consider the claims made in his behalf by his counsel . . . and to consider all of the evidence and find him not guilty if the law and the facts requires such a verdict.” Furthermore, the state presented a very strong case against the defendant.

In the context of this trial, the effect of the state’s improper comments, if in fact they were improper, cannot be said to have affected the outcome of the trial, or to have so infected the trial with unfairness as to make the defendant’s resulting conviction a denial of due process.

Ill

The trial court instructed the jury on the concept of reasonable doubt by defining reasonable doubt as a doubt “for which a reasonable man or woman can give a valid reason,” and further as a doubt “which would cause you as reasonable and prudent men and women to hesitate to act in the more weighty and important matters relating to your own affairs.” The defendant asserts that these instructions were improper.

Although this claim was not preserved at trial, the defendant claims review under the Evans-Got,ding doctrine, and alleges that the reasonable doubt instructions shifted or diminished the state’s burden of proof, thereby presenting a constitutional claim.

The challenged instruction on “valid reason” is similar or identical to the instruction approved by our Supreme Court. State v. DePastino, 228 Conn. 552, 571-72, 638 A.2d 578 (1994); State v. Gomez, 225 Conn. 347, 353, 622 A.2d 1014 (1993); State v. Adams, 225 Conn. 270, 291, 623 A.2d 42 (1993); State v. Derrico, 181 Conn. 151, 171, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980). Such an instruction did not decrease the state’s burden when viewed in the context of the charge as a whole. The defendant cannot prevail on this claim.

Further, we reject the defendant’s additional, unpre-served claim relating to a reasonable doubt as one “which would cause you as reasonable and prudent men and women to hesitate to act in the more weighty and important matters relating to your own affairs.” We conclude that the charge given by the trial court was proper.

The judgment is affirmed.

In this opinion HEIMAN, J., concurred.

SPEAR, J.,

dissenting. I concur in parts I and III of the majority opinion as well as that portion of part II that addresses the prosecutor’s violation of a court order. I respectfully dissent from that portion of part II that addresses the prosecutor’s closing argument. I view the references to a “suburbanite’s . . . ultimate urban nightmare” and being in the “wrong place” in an “urban neighborhood” as appeals to racial passion and prejudice. Such appeals constitute misconduct and warrant a reversal.

A reference to certain evidence elicited during the defense case is important to set the context for the prosecutor’s remarks. The pregnant female with whom the defendant quarreled testified that she was the defendant’s fiancee. There was evidence that she gave birth to the defendant’s child four days after the quarrel and that the argument arose because she had refused to stop using drugs during her pregnancy.

The defendant testified that the four women lined up in front of him as he approached them and one placed her hands on his chest in an attempt to restrain him. A parking lot attendant, who did not know the defendant, saw the incident and testified as a defense witness. He stated that the women blocked the defendant’s way, grabbed him, and challenged him about the problem with his girlfriend. That witness further testified that after the defendant passed the women, they still came after him. This was consistent with the defendant’s testimony that he was hit from behind when he pushed through the group. The defendant stated that when he turned around, he was kicked in the testicles and fell to the ground. He further testified that after the four women grabbed him, he pulled out the box cutter and began swinging because he was outnumbered and wanted to get the women off of him.

Obviously, the jury was not required to accept any of the defense testimony as true. Even if they accepted this testimony as credible, they were entitled to find that the defendant’s use of the box cutter was not justified. I discuss this particular testimony, not to challenge the sufficiency of the evidence, but because it helps to explain why the prosecutor overstepped the bounds of proper conduct in attempting to portray the women as innocent victims of random urban violence. According to the prosecutor, they were “minding their own business” and were hurt simply because they were in an “urban neighborhood” at the “wrong time.” She obviously wanted to do everything possible to guard against the jury’s crediting the defendant’s version of events, especially in view of the independent testimony that corroborated his testimony.

I do not quarrel with the majority’s due process analysis. Indeed, “ ‘[t]he fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. . . (Citations omitted.) State v. Binet, 192 Conn. 618, 628, 473 A.2d 1200 (1984); State v. Millstein, 8 Conn. App. 581, 590, 513 A.2d 1253, cert. denied, 201 Conn. 814, 518 A.2d 72 (1986). Our Supreme Court has stated, however, that “[t]his court, nonetheless, has supervisory power to vacate a judgment of conviction and to order a new trial to deter prosecutorial misconduct which, while not so egregious as to deprive the defendant of a fair trial, is unduly offensive to the maintenance of a sound judicial process.” (Emphasis added; internal quotation marks omitted.) State v. Fullwood, 194 Conn. 573, 584, 484 A.2d 435 (1984).

“A prosecutor may not appeal to the emotions, passions and prejudice of the jurors.” State v. Williams, 204 Conn. 523, 545, 529 A.2d 653 (1987). Nor should a prosecutor “inject extraneous issues into the case that direct the jury from its duty to decide the case on the evidence.” Id., 547. “While a state’s attorney has an obligation to present the state’s strongest case, he is not-licensed to use unethical or inflammatory tactics. As an officer of the court, he has a duty to see that justice is administered in conformity with recognized principles of law.” State v. Dolphin, 195 Conn. 444, 452, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985). “When reviewing allegations of prosecutorial misconduct, it must be kept in mind that [a] prosecutor is not an ordinary advocate. His duty is to see that justice is done and to refrain from improper methods calculated to produce prejudice and wrongful decisions by the jury. . . . While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used ... to present matters which the jury have no right to consider.” (Citations omitted; internal quotation marks omitted.) State v. Falcone, 191 Conn. 12, 22, 463 A.2d 558 (1983).

It is common knowledge that the population of the suburbs in Connecticut is overwhelmingly white, while most of the black population is concentrated in the cities. This state of affairs could hardly have escaped the prosecutor’s notice. Given the starkly different racial composition of suburban and urban Connecticut, given the fact that the defendant is black while the two victims and the other prosecution witnesses are white, and given the lack of any valid reason for the challenged statements, the racial appeal is obvious.

The state argues that the comment was not racist because it merely pointed out the “well known fact that random acts of street violence occur more frequently in cities than elsewhere . . . .” Such a fact, the state asserts, is related to the evidence and the issues in the case because it supported the state’s contention that the defendant lashed out at “innocent bystanders” as a way of venting his anger.

This explanation digs a deeper hole for the prosecutor. The state does not explain, and I do not understand, how general impressions about the frequency of violence in urban neighborhoods could have shed any light on the particulars of this case. The state asks this court to approve the proposition that the jury could have properly used its collective general knowledge about violence in the cities as evidence that the defendant committed acts of violence in this case. More importantly, the state does not even attempt to explain why the attack in this case was peculiarly a “suburbanite’s . . . ultimate urban nightmare.” There is certainly no logical basis for the notion that the degree of fear and trauma associated with a razor attack turns on whether the victim is a suburbanite and whether the location is urban. I can conceive of no explanation for the suburban-urban juxtaposition of the comments other than as an improper racial appeal to the jury. Racial conflict and divisiveness in our society is of such a long-standing and intractable nature that the prosecutor’s duty scrupulously to avoid appeals to racial prejudice is particularly apropos in cases such as this one. I view one such appeal as one too many because it is “unduly offensive to the maintenance of a sound judicial process.” (Internal quotation marks omitted.) State v. Fullwood, supra, 194 Conn. 584.

In State v. Ubaldi, 190 Conn. 559, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983), the prosecutor flagrantly violated certain trial court orders and our Supreme Court reversed pursuant to its supervisory power. Although the remarks here did not violate a court order, such statements undermine confidence in our judicial system. Maintaining such confidence and preserving the integrity of our court system are as important as vindicating a trial court’s orders. Remarks such as the ones at issue here only add to a perception of unfairness, and such a perception, whether accurate or not, is clearly not in keeping with the well known maxim that justice must not only be done, but must appear to be done.

I recognize that society has an important interest in the affirmance of a conviction that is supported by sufficient evidence and is free of harmful constitutional or other error. This interest must be weighed when an appellate court considers whether to reverse a conviction because of prosecutorial misconduct. See id., 572. Because there is no apparent reason why a retrial would present any unusual difficulty in this case, the scales tip clearly in favor of reversal. “Upsetting a criminal conviction is a drastic step, but it is the only feasible deterrent to flagrant prosecutorial misconduct in defiance of a trial court ruling. We are mindful of the sage admonition that appellate rebuke without reversal ignores the reality of the adversary system of justice. The deprecatory words we use in our opinions . . . are purely ceremonial. [Prosecutors], employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice [of verbal criticism without judicial action]—recalling the bitter tear shed by the Walrus as he ate the oysters—breeds a deplorably cynical attitude towards the judiciary.” (Internal quotation marks omitted.) Id., 571.

In their representation of the people of the state of Connecticut, prosecutors must choose their words carefully, even in the heat of courtroom battle. They should never, because of personal or other reasons, stoop to appeals to racial prejudice. In order to express the court’s strong condemnation of such tactics and to deter such conduct in the future, I would reverse the judgment pursuant to our supervisory authority and remand the case for a new trial.

       On February 1, 1995, following the defendant’s appeal, the state filed a motion for rectification, claiming that the challenged portion of the transcript, which the defendant claimed amounted to a directed verdict, was incorrect. Following a hearing at which the trial court heard testimony from the court reporter, the defendant’s trial counsel, and the (rial prosecutor, the trial court granted, by written memorandum of decision, the motion for rectification. The transcript, as initially prepared, omitted the word “if” several times, suggesting that the state had actually disproved the defendant’s argument of self-defense. The transcript, as rectified, nullifies the defendant’s claim of a directed verdict.

       General Statutes § 53a-19 (b) provides: “Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.”

       During closing arguments, the defense counsel stated: “Frustration, intoxication and provocation, that's what this case is all about.” Counsel also stated that “provocation . . . not only goes to self-defense but it also goes to . . . intent ... to cause serious physical injury.” On appeal, the defendant argues, and we agree, that “[t]here was no real question of identity or causation, and thus the contested issues were intent and whether the state had disproved the claim of self-defense.”

       The defendant filed his motion for a new trial pursuant to Practice Book § 902 and renewed his objection to the prosecutor’s summation remarks. That motion was denied.

       While a prosecutor may present closing argument with logical force and vigor; State v. Sherman, 38 Conn. App. 371, 401, 662 A.2d 767, cert. denied, 235 Conn. 905, 665 A.2d 905 (1995); he or she may not appeal to passions and prejudices of the jury. State v. Couture, 194 Conn. 530, 564, 482 A.2d 300 (1984). We condemn any such remarks made for racial reasons, intentionally or otherwise, that may affect the verdict to the prejudice of the defendant.

        State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973)

       The defendant’s own request to charge included substantially identical concepts as those now challenged.

       The statements are set out in full in the body of the majority opinion.

       The defendant, in his brief, requests that we exercise our supervisory authority to order a new trial because of the challenged remarks. In response, the state simply asserts that the conduct was not deliberately improper, therefore, we should not invoke our supervisory power.

       This case was tried in the judicial district of New Haven, which consists of the city of New Haven and twelve suburban towns. The 1990 United States census discloses that there are 57,247 black people in the district. Of that number, 47,157, 82.4 percent, reside in the city of New Haven. The twelve suburban towns have black populations that range from 0.4 to 8.7 percent of the total population. On the other hand, the white population of ten of the twelve suburban towns in the district ranges from 93.1 to 98.6 percent. The other two towns, Hamden and Meriden, have white populations of 88.9 and 89.7 percent respectively. This type of racial distribution is seen throughout the state.