text:
    JOHN DEMORAIS ET AL. v. JOSEPH WISNIOWSKI ET AL.
    (AC 23303)
    Lavery, C. J., and DiPentima and Peters, Js.
    Argued October 27, 2003 —
    officially released February 24, 2004

      Joseph B. Burns, with whom, on the brief, was Putnam H. Perry, for the appellants-appellees (plaintiffs).

      Robert A. Ziegler, with whom, on the brief, was Jeffrey M. Knickerbocker, for the appellees-appellants (defendants).
   Opinion

LAVERY, C. J.

The plaintiffs, John DeMorais and Sharon DeMorais, appeal and the defendants, Joseph Wisniowski and Stanley Wisniowski, cross appeal from the judgment of the trial court. The plaintiffs claim that the court improperly denied their motion to set aside the verdict. Specifically, the plaintiffs argue that the defendants failed to introduce sufficient evidence to support a finding of $50,000 in economic damages pursuant to their counterclaim for libel per quod. The defendants, in their cross appeal, claim that the court improperly denied their motion for a directed verdict on the plaintiffs’ complaint. Specifically, the defendants argue that the court improperly submitted to the jury the issues of (1) whether a fiduciary relationship existed between the parties and was subsequently breached by the defendants, and (2) whether the defendants breached the restrictive covenant at issue. As to the plaintiffs’ appeal, we reverse the judgment of the trial court only as to damages and remand the matter for a hearing in damages limited to the question of attorney’s fees. We reverse the judgment of the trial court with respect to the defendants’ cross appeal only as to the jury’s findings that the defendants breached a fiduciary relationship with the plaintiffs and breached a restrictive covenant.

The jury reasonably could have found the following facts. The defendants purchased property in the town of Berlin (town) and sought affordable housing subdivision approval from the planning commission (commission). The commission was ordered to approve the subdivision. See Wisniowski v. Planning Commission, 37 Conn. App. 303, 304, 655 A.2d 1146, cert. denied, 233 Conn. 909, 658 A.2d 981 (1995).

In July, 1998, the plaintiffs became interested in purchasing a lot to build a home in the defendants’ subdivision which was known as Arbor Commons. John DeMorais expressed his interest in obtaining a house that was located on a cul-de-sac. After several meetings, the parties executed, in January, 1999, an option contract for the plaintiffs to purchase lot 4-19. In July, 1999, the plaintiffs exercised the option and purchased the lot.

In August, 1999, the plaintiffs contacted MBA Engineering Company to build their house on lot 4-19. In October, 1999, construction of the plaintiffs’ house proceeded to the framing stage. At that point, the plaintiffs noticed the location where the defendants were building a house on lot 4-20, an adjacent lot to the north. The plaintiffs had not expected the house on lot 4-20 to be built in the position that it was in. Specifically, they objected to the fact that the house on lot 4-20 was not facing the street, but instead faced the plaintiffs’ front yard!

John DeMorais immediately called Joseph Wisniow-ski to complain about the “awkward” placement of the house on lot 4-20. The plaintiffs were upset because the placement of the house on lot 4-20 did not match the preliminary drawings and layout of the subdivision that the defendants previously had shown them. Repeated telephone conversations during October, 1999, failed to resolve the problem, and the relationship between the parties steadily deteriorated. Despite the plaintiffs’ complaints, both homes were completed without alteration.

The plaintiffs moved into their home during the spring of2000. In June and July, 2000, Sharon Demoráis started to attend meetings of the commission to complain about the subdivision. The plaintiffs thereafter filed suit, alleging multiple causes of action for the reduction in value of their residence. The jury returned a verdict for the plaintiffs on three counts of the complaint. It awarded $30,000 for the breach of the defendants’ fiduciary duty, $30,000 for the breach of the restrictive covenant and $35,000 for negligent misrepresentation with an additional finding of 49 percent comparative negligence on the part of the plaintiffs.

The defendants also filed a five count counterclaim, which set forth claims of breach of restrictive covenant, libel and slander, wilful, wanton and malicious conduct, breach of the implied obligations of good faith and fair dealing and invasion of privacy. The jury returned a verdict in favor of the defendants with respect to the claim of libel per quod, awarding $50,000 in damages, and invasion of privacy, awarding $15,000 in damages.

Both parties filed motions to set aside the verdict. The defendants also filed a supplemental motion to set aside the verdict, as it reflected multiple recoveries for the same injury. The court denied the motions to set aside the verdict, but granted the defendants’ supplemental motion to set aside the verdict. The court, in ruling on the defendants’ supplemental motion, concluded that the jury had made inconsistent findings of economic damages. The jury found damages in the amount of $30,000 for both the breach of fiduciary duty and the breach of the restrictive covenant, and $35,000 for negligent misrepresentation. The court determined, however, that the inconsistency with respect to the negligent misrepresentation count was not significant because the jury’s finding of comparative negligence by the plaintiffs reduced the negligent misrepresentation award. The court then stated that the plaintiffs were not entitled to three recoveries for the same injury and concluded that there was sufficient evidence for the jury to have found that the value of the plaintiffs’ home was reduced by $30,000. This appeal and cross appeal followed. Additional facts will be set forth as necessary.

I

PLAINTIFFS’ APPEAL

The plaintiffs claim that the court improperly denied their motion to set aside the verdict. Specifically, the plaintiffs argue that the defendants failed to introduce sufficient evidence to support a finding of $50,000 in economic damages for the defendants’ counterclaim of libel per quod. We agree.

As a preliminary matter, we set forth the standard of review. “[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict . . . [is] the abuse of discretion standard. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . We do not . . . determine whether a conclusion different from the one reached could have been reached. . . . A verdict must stand if it is one that a jury reasonably could have returned and the trial court has accepted.” (Internal quotation marks omitted.) Arnone v. Enfield, 79 Conn. App. 501, 505-506, 831 A.2d 260, cert. denied, 266 Conn. 932, 837 A.2d 804 (2003). We also note that “[w]hile it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation. ... If the evidence would not reasonably support a finding of the particular issue, the trial court has a duty not to submit it to the jury.” (Internal quotation marks omitted.) Mips v. Becon, Inc., 70 Conn. App. 556, 559, 799 A.2d 1093 (2002).

The following additional facts axe necessary for our resolution of the plaintiffs’ claim. The defendants had a contentious and hostile relationship with town officials. In the summer of 2000, the plaintiffs began attending various meetings of the commission to complain about the defendants and their failure to complete the subdivision. Additionally, Sharon DeMorais drafted several letters and petitions that were signed by the residents of the subdivision. Specifically, the plaintiffs complained that there was sewage in the streets, and that the defendants had failed to install storm drains and to grade and pave certain areas, which caused water problems within the subdivision. The plaintiffs also claimed that the standing pools of water in the subdivision created a breeding location for mosquitoes that were carriers of the West Nile vims.

At one meeting, Sharon DeMorais stated that Joseph Wisniowski had “stolen her money,” including her retirement fund and life savings. She also claimed that sewage was flowing through the streets of the subdivision. Furthermore, the plaintiff informed the commission that Joseph Wisniowski was not conducting any activity to complete the subdivision, had failed to make any of the necessary improvements, and that the bank that had provided the mortgage loan for Arbor Commons should revoke the defendants’ bond and take over the constmction of the subdivision.

The defendants disputed the veracity of those claims. The record reveals that there was never any evidence that sewage ran through the streets, that mosquitoes carrying the West Nile vims were present in the subdivision or that the defendants had “stolen” the plaintiffs’ money. Furthermore, Joseph Wisniowski stated that the subdivision was planned, approved and bonded at all times, and that the constmction had proceeded within an appropriate time frame. Additionally, the water problems were both expected and temporary in nature. The defendants incurred legal fees in the amount of $4000 to $5000 to defend against the allegations that were raised at the hearings.

In July, 2001, the construction of the subdivision was not complete. The town refused to issue a building permit for lot 4-28, in effect preventing the sale of that property. The town refused to issue the permit because the subdivision plan required that the defendants complete various improvements to Kensington Road. On August 16, 2001, Joseph Wisniowski and the town entered into an agreement by which the building permit would issue and the defendants agreed immediately to commence and complete improvements to Kensington Road. As a result of that agreement with the town, the defendants incurred additional expenses. Joseph Wisniowski testified that as a result of the agreement, he sustained additional costs of between $70,000 and $100,000. Furthermore, he stated that the town had not raised any concerns about Kensington Road until after the plaintiffs started their campaign against the defendants.

The defendants, in their counterclaim, sought to obtain relief by alleging slander and libel per se and slander and libel per quod. The jury awarded no damages for the defendants’ claims of slander and libel per se; instead, it found in favor of the defendants with respect to the claims of libel and slander per quod and awarded special damages in the amount of $50,000.

On appeal, the plaintiffs have not challenged the jury’s finding of libel and slander per quod. It is clear that the jury reasonably could have found that the plaintiffs knew that their complaints to the town were not true or they were made in reckless disregard for the truth and thereby were defamatory. We also agree that the defendants produced sufficient evidence to support a finding of actual damages for legal fees in the amount of $4000 to $5000. What is less clear, and what we must determine, is whether there was sufficient evidence that the defendants’ costs associated with the improvements that were done as required by the 2001 agreement with the town were connected to the conduct of the plaintiffs. We conclude that there was insufficient evidence to connect those costs to the tortious conduct of the plaintiffs. Because it is not the function of this court to find facts, we must remand the matter to the trial court for a hearing in damages limited to the sole issue of the specific amount of attorney’s fees, if any, incurred by the defendants in defending themselves from the plaintiffs’ defamatory statements.

At this point, a review of certain legal principles will facilitate our discussion. “While all libel was once actionable without proof of special damages, a distinction arose between libel per se and libel per quod. . . . A libel per quod is not libelous on the face of the communication, but becomes libelous in light of extrinsic facts known by the recipient of the communication. . . .

“Libel per se, on the other hand, is a libel the defamatory meaning of which is apparent on the face of the statement and is actionable without proof of actual damages. . . . The distinction between libel per se and libel per quod is important because [a party] may recover general damages where the defamation in. question constitutes libel per se.” (Internal quotation marks omitted.) Lega Siciliana Social Club v. St. Germaine, 77 Conn. App. 846, 852, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003). In short, “[w]hen a plaintiff brings an action in libel per quod, he must plead and prove actual damages in order to recover. D. Wright & J. Fitzgerald, Connecticut Law of Torts (2d Ed.) § 146.” Battista v. United Illuminating Co., 10 Conn. App. 486, 491, 523 A.2d 1356, cert. denied, 204 Conn. 802, 803, 525 A.2d 1352 (1987).

In the present case, the defendants voluntarily entered into an agreement with the town to obtain a building permit for lot 4-28 in exchange for the immediate completion of improvements required by the site plan. If the defendants were unhappy with the costs associated with that agreement, the proper party from which to seek redress was the town, not the plaintiffs. The agreement expressly provided that the defendants retained any rights or claims against the town. There was no evidence that the defamatory statements made by the plaintiffs at the meetings were linked or connected to the costs of the improvements that were required by the subdivision plan and that the defendants agreed to “immediately commence” to obtain a building permit.

Furthermore, public policy concerns support our conclusion. The plaintiffs had a right to ensure that the subdivision was completed according to the specifications of the approved plan. The town was the proper authority to which the plaintiffs could raise such concerns and ensure that the subdivision plan was followed. To allow the defendants to label the Kensington Road improvements as the actual damages required by their claim for libel per quod would have a chilling effect on citizens participating at such hearings, contrary to public policy. See Willimantic Car Wash, Inc. v. Zoning Board of Appeals, 247 Conn. 732, 739-42, 724 A.2d 1108 (1999). While the plaintiffs did, in fact, make defamatory statements to the commission, those statements were not related to the costs for improving Kensington Road as required by the site plan. In this case, the plaintiffs were entitled to bring their valid and legitimate concerns regarding compliance with the approved subdivision plan without the fear of being subjected to a defamation cause of action.

We conclude that the defendants failed to provide any evidence that supported the finding by the jury of actual damages in the amount of $50,000. We remand the matter to the trial court for a hearing in damages to determine the specific amount, if any, of attorney’s fees incurred by the defendants in defending against the plaintiffs’ defamatory statements, which were the only material damages proved.

II

DEFENDANTS’ CROSS APPEAL

The defendants raise two issues in their cross appeal. Specifically, the defendants argue that the court improperly denied their motion for a directed verdict, and should not have submitted to the jury the allegations of a breach of fiduciary duty and a breach of the restrictive covenant. We agree.

“As an initial matter, we set forth our standard of review. [Appellate] review of a trial court’s refusal to direct a verdict or to render judgment notwithstanding the verdict takes place within carefully defined parameters. We must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial . . . giving particular weight to the concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony .... The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached [its] conclusion. ... A jury’s verdict should be set aside only where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles. ... A verdict should not be set aside where the jury reasonably could have based its verdict on the evidence.” (Citation omitted; internal quotation marks omitted.) Conigilo v. White, 72 Conn. App. 236, 240, 804 A.2d 990 (2002). We address each of the defendants’ claims in turn.

A

The defendants first claim that the court improperly denied their motion for a directed verdict with respect to the issue of a fiduciary duty. Specifically, the defendants argue that the court, as a matter of law, should not have submitted the question of the existence of a fiduciary duty to the jury. We agree.

“It is well settled that a fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other. . . . Although this court has refrained from defining a fiduciary relationship in precise detail and in such a manner as to exclude new situations ... we have recognized that not all business relationships implicate the duty of a fiduciary. ... In particular instances, certain relationships, as a matter of law, do not impose upon either party the duty of a fiduciary.” (Citations omitted; internal quotation marks omitted.) Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 640, 804 A.2d 180 (2002).

Our Supreme Court’s opinion in Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 761 A.2d 1268 (2000), is instructive. In that case, the court stated: “In the cases in which this court has, as a matter of law, refused to recognize a fiduciary relationship, the parties were either dealing at arm’s length, thereby lacking a relationship of dominance and dependence, or the parties were not engaged in a relationship of special trust and confidence.” Id., 39; see also Hemingway v. Coleman, 49 Conn. 390, 392 (1881). Furthermore, “[t]he law will imply [fiduciary responsibilities] only where one party to a relationship is unable to fully protect its interests [or where one party has a high degree of control over the property or subject matter of another] and the unprotected party has placed its trust and confidence in the other.” (Internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., supra, 41.

In the present case, the record discloses that the parties were engaged in an arm’s length transaction. Arbor Commons was the defendants’ first subdivision project, and John DeMorais testified that he previously had purchased a condominium and a multifamily home with his mother. This was not, therefore, a case involving a savvy, well established developer and an inexperienced individual who was purchasing property for the first time. The plaintiffs did not utilize the defendants’ services to build their home; instead they selected MBA Engineering Company. Furthermore, the record reveals that the plaintiffs changed the position of their house on the lot without informing the defendants. Those actions indicate that the plaintiffs did not relinquish control to the defendants. As our Supreme Court has stated, “[t]he fact that one business person trusts another and relies on [the person] to perform [his or her obligations] does not rise to the level of a confidential relationship for purposes of establishing a fiduciary duty.” (Internal quotation marks omitted.) Id.

In sum, the plaintiffs failed to produce evidence of a “unique degree of trust and confidence between the parties such that the defendants undertook to act primarily for the benefit of the plaintiff [s]. ” (Internal quotation marks omitted.) Id. We conclude, therefore, that the record, as a matter of law, was inadequate to support the finding of a fiduciary relationship and that the court improperly denied the defendants’ motion for a directed verdict.

B

The defendants next claim that the court improperly denied their motion for a directed verdict with respect to the issue of the breach of a restrictive covenant. Specifically, the defendants argue that the court, as a matter of law, should not have submitted the question of the breach of a restrictive covenant to the jury. We agree with the defendants.

The following additional facts are necessary for the resolution of the defendants’ claim. On April 27, 1999, the defendants executed a “Declaration of Restrictive Covenants” as the owners of the subdivision. The five page document set out the purpose of the covenant in three “whereas” paragraphs, and fifteen numbered paragraphs that described the covenant’s limitations and restrictions.

At the outset, we set forth the applicable standard of review. “[T]he determination of the intent behind language in a deed, considered in the light of all the surrounding circumstances, presents a question of law on which our scope of review is plenary. . . . Thus, when faced with a question regarding the construction of language in deeds, the reviewing court does not give the customary deference to the trial court’s factual inferences. . . .

“The meaning and effect of the [restrictive covenant] are to be determined, not by the actual intent of the parties, but by the intent expressed in the deed, considering all its relevant provisions and reading it in the light of the surrounding circumstances .... The primary rule of interpretation of such [restrictive] covenants is to gather the intention of the parties from their words, by reading, not simply a single clause of the agreement but the entire context, and, where the meaning is doubtful, by considering such surrounding circumstances as they are presumed to have considered when their minds met.” (Citation omitted; internal quotation marks omitted.) Wood v. Amer, 54 Conn. App. 601, 604-605, 736 A.2d 162 (1999), aff'd, 253 Conn. 514, 755 A.2d 175 (2000).

This court previously has described uniform covenants. “[W]e are dealing with uniform covenants contained in deeds executed by the owner of property who is dividing his property into building lots under a general development scheme. With respect to this type of covenant, any grantee under a general or uniform development scheme may enforce the restrictions against any other grantee. . . . The doctrine of the enforceability of uniform restrictive covenants is of equitable origin. The equity springs from the presumption that each purchaser has paid a premium for the property in reliance on the uniform development plan being carried out. While that purchaser is bound by and observes the covenant, it would be inequitable to allow any other landowner who is also subject to the same restriction to violate it.” (Citations omitted; internal quotation marks omitted.) Mannweiler v. LaFlamme, 46 Conn. App. 525, 535-36, 700 A.2d 57, cert. denied, 243 Conn. 934, 702 A.2d 641 (1997).

In the present case, the plaintiffs do not contend that the defendants violated any of the enumerated paragraphs in the covenant. Instead, they cite the third “whereas” clause, which states: “Whereas, it is the desire and intention of [the defendants] to impose on said property mutual beneficial restrictions under a general scheme of improvement for the benefit of each and all of the separate lots.” Specifically, the plaintiffs claim that the “awkward” placement of the house on lot 4-20 breached the requirement that the defendants act “for the benefit of each and all of the separate lots.” The plaintiffs further argue that all of the provisions contained in the covenant had to be considered and, therefore, the court properly presented to the jury the question of whether the defendants breached the covenant.

As a general rule, “[r]ecitals in a contract, such as ‘whereas’ clauses, are merely explanations of the circumstances surrounding the execution of the contract, and are not binding obligations unless referred to in the operative provisions of the contract. . . .” 17A C.J.S., Contracts § 317 (1999). Although our research has not revealed any appellate authority in this state expressly adopting that rule, such authority exists in other jurisdictions. See, e.g., Aramony v. United Way of America, 254 F.3d 403, 413 (2d Cir. 2001) (“we have held that [a]though a statement in a whereas clause may be useful in interpreting an ambiguous operative clause in a contract, it cannot create any right beyond those arising from the operative terms of the document” [internal quotation marks omitted]); accord Engineered Data Products, Inc. v. Nova Office Furniture, Inc., 849 F. Sup. 1412, 1417 (D. Colo. 1994); Johnson v. Johnson, 725 So. 2d 1209, 1212 (Fla. App.), review denied, 735 So. 2d 1285 (Fla. 1999); Jones v. Paducah, 283 Ky. 628, 632, 142 S.W.2d 365 (Ky. App. 1940); McKinnon v. Baker, 220 Neb. 314, 317, 370 N.W.2d 492 (1985); Rubenstein Bros. v. Ole of 34th Street, Inc., 101 Misc. 2d 563, 567, 421 N.Y.S.2d 534 (1979). We agree with that rule set forth by those courts.

In the present case, the operative provisions of the covenant were the enumerated paragraphs that followed the general “whereas” clauses. The language of the covenant supports that interpretation. “Said limitations, restrictions, covenants and conditions are as follows . . . .” That sentence appears after the “whereas” clauses and immediately precedes the enumerated paragraphs. We conclude that the clear and unambiguous terms of the covenant provided that the operative terms were contained in the enumerated paragraphs. The “whereas” clauses merely provided an explanation of the circumstances of the execution of the covenant and were not binding obligations, nor were they necessary to clarify the intent of the parties. There was no evidence that the defendants had violated any of the enumerated paragraphs, which were the operative clauses of the covenant. Accordingly, we conclude that court improperly denied the defendants’ motion for a directed verdict.

On the plaintiffs’ appeal, the judgment is reversed only as to the award of damages to the defendants and the case is remanded for a hearing in damages as to the amount of attorney’s fees incurred by the defendants in defending against the plaintiffs’ defamatory statements. On the defendants’ cross appeal, the judgment is reversed as to the findings that the defendants breached a fiduciary duty and breached a restrictive covenant and the case is remanded with direction to render judgment for the defendants as to those counts and for further proceedings in accordance with law.

In this opinion the other judges concurred.

       The defendants also claim that the jury’s award of economic damages was improper due to the lack of sufficient evidence and that the jury’s award of damages should have been reduced by the finding of 49 percent of liability on the part of the plaintiffs. On the basis of our resolution of the first two issues of the defendants’ cross appeal, we need not decide those claims.

       The jury found in favor of the defendants with respect to the count of the plaintiffs’ complaint that alleged unfair trade practices.

       The plaintiffs have not challenged the jury’s finding of invasion of privacy, and the defendants have not challenged the jury’s finding of negligent misrepresentation.

       The plaintiffs also contacted the defendants’ bank to register concern about the defendants’ ability to complete the subdivision.

       On May 11, 2000, the department of environmental protection’s bureau of water management alerted the defendants to various problems with the subdivision and ordered corrective measures. The matter currently is in litigation. The defendants also received a municipal citation on May 22, 2000, and were fined $150 for erosion and sedimentary control violations at the subdivision.

       “Defamation is comprised of the torts of libel and slander. Defamation is that which tends to injure reputation in the popular sense; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory, or unpleasant feelings or opinions against him. . . . Slander is oral defamation. . . . Libel ... is written defamation.” (Citation omitted; internal quotation marks omitted.) Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn. App. 846, 851-52, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003).
      In the present case, the defendants presented evidence that the plaintiffs had committed both slander per quod and libel per quod. Although we focus our discussion on the tort of libel per quod, we note that the same analysis applies to the tort of slander per quod. See DeVito v. Schwartz, 66 Conn. App. 228, 236, 784 A.2d 376 (2001).

       Paragraph four of the agreement states that “[e]xcept as recited herein, neither party waives any rights or claims it may have against the other party. ”

       See footnote 1.

       The terms of the restrictive covenant provide in relevant part: “No building or structure of any kind shall be built, constructed, erected or placed on any of said lots until after submission and written approval from [the defendants] . . . Despite the breach of that covenant by the plaintiffs, the defendants took no action against the plaintiffs and permitted them to proceed with the construction of the house.

       In Grossman v. Grossman, Superior Court, judicial district of StamfordNorwalk, Docket No. 167560 (September 29, 2000), the court held that “[a whereas] clause functions as an introduction” and that it was unnecessary to use the clause to determine the intent of the parties when the operative language of the contract was clear.

       Those paragraphs describe general regulations that apply to all of the lot owners within the subdivision and prohibit, among other things, farm animals, clotheslines, fences, certain types of signs and commercial activity. Approval of the building and site plans was retained by the defendants.


source: Caselaw Access Project

author: DiPENTIMA, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JUAN REYES
    (AC 23213)
    Laveiy, C. J., and DiPentima and Stoughton, Js.

      Argued November 18, 2003 —
    officially released February 24, 2004

      Cameron R. Dorman, special public defender, for the appellant (defendant).

      Marjorie Allen Dauster, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, Victor Carlucci, Jr., senior assistant state’s attorney, and David C. Nelson, certified legal intern, for the appellee (state).
   Opinion

DiPENTIMA, J.

The defendant, Juan Reyes, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics in violation of General Statutes § 21a-279 (a), conspiracy to possess narcotics in violation of General Statutes §§ 53a-48 and 2 la-279 (a) , sale of narcotics by a person who is not drug-dependant in violation of General Statutes § 2 la-278 (b) , conspiracy to sell narcotics by a person who is not drug-dependant in violation of §§ 53a-48 and 21a-278 (b), sale of a controlled substance within 1500 feet of a public school in violation of General Statutes § 21a-278a (b), and conspiracy to sell a controlled substance within 1500 feet of a public school in violation of § § 53a-48 and 21a-278a (b). On appeal, the defendant claims that the trial court improperly (1) admitted into evidence his involuntary statements that were given to the police as a result of allegedly improper threats, coercion and inducements, and (2) refused to allow him to introduce extrinsic evidence relating to a material issue in violation of his state and federal constitutional rights to confrontation and to present a defense.

The jury reasonably could have found the following facts. On January 25, 2001, in a combined effort, members of the federal Drug Enforcement Agency and members of the Hartford police department planned to use an informant to make a controlled purchase of narcotics from the defendant. The officers gave the informant $950 to purchase heroin and then traveled in separate vehicles to a car wash in Hartford.

Upon arrival at the car wash, the informant met the defendant and asked to purchase ten grams of heroin. The defendant made a call to Carlos Romero, his supplier, and the informant put the money in the defendant’s vehicle. Romero arrived shortly thereafter, met the defendant, exchanged the money for drugs and left. The defendant handed the informant the drugs. Finally, the informant left the car wash, drove to a prearranged location and gave Ramon Baez, a detective with the Hartford police department, approximately ten grams of heroin. On April 27,2001, the defendant was arrested.

After his arrest, during an interrogation, the defendant admitted to the sale of narcotics and explained to detectives how narcotics sales were normally conducted at the car wash. During that time, he was offered food and drink, and was allowed to make telephone calls to his wife and employer. The defendant was read waiver of rights forms in both English and Spanish. He signed both forms. The defendant’s statement was not put into writing because the defendant was going to be used as an informant, and the detectives wanted to protect him. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion to suppress his statements to the police. Specifically, the defendant argues that his statement given at the police station was involuntary because (1) the police engaged in coercive conduct, including the use of improper threats, and (2) he was promised a reduction of his bond from surety to non-surety if he cooperated. The court found that the defendant’s confession was voluntary.

After the hearing on the motion to suppress, the court found the following facts. Although his native tongue was Spanish, the defendant was able to speak and to understand the English language. Prior to the commencement of questioning, the defendant was advised of his rights in both English and Spanish. He voluntarily waived his rights. Finally, the court found that the police had made no promises, threats or inducements to the defendant.

“[T]he use of an involuntary confession in a criminal trial is a violation of due process. . . . The state has the burden of proving the vohmtariness of the confession by a fair preponderance of the evidence. . . . [T]he test of voluntariness is whether an examination of all the circumstances discloses that the conduct of law enforcement officials was such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined. . . . The ultimate question is whether the confession is the product of an essentially free and unconstrained choice. ... If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.” (Citations omitted; internal quotation marks omitted.) State v. McColl, 74 Conn. App. 545, 563-64, 813 A.2d 107, cert. denied, 262 Conn. 953, 818 A.2d 782 (2003).

“The trial court’s findings as to the circumstances surrounding the defendant’s interrogation and confession are findings of fact . . . which will not be overturned unless they are clearly erroneous.” (Internal quotation marks omitted.) State v. Correa, 241 Conn. 322, 328-29, 696 A.2d 944 (1997). We, however, make a scrupulous examination and “conduct a plenary review of the record in order to make an independent determination of voluntariness.” State v. Pinder, 250 Conn. 385, 421, 736 A.2d 857 (1999). “Under the federal constitution . . . coercive police activity is a necessary predicate to the finding that a confession is not voluntary . . . .” (Internal quotation marks omitted.) State v. James, 237 Conn. 390, 411, 678 A.2d 1338 (1996).

In support of his claim, the defendant cites the allegedly coercive nature of the police conduct during his interrogation. Specifically, he refers to (1) a statement made by an officer present during the interrogation that “[he] better tell the truth or [he] was going to do a lot of time in jail” and (2) an allegedly impermissible promise to reduce his bond from a surety bond to a nonsurety bond.

A

Contrary to the defendant’s claim, the court properly concluded that the statement of the officer was not coercive. The conduct and statement of the officer was not of the type that would be expected to overcome the defendant’s will. “[A] statement [that an accused’s cooperation would be to his benefit] by a law enforcement officer falls far short of creating the compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” (Emphasis in original; internal quotation marks omitted.) State v. Pinder, supra, 250 Conn. 424. Furthermore, merely “[encouraging a suspect to tell the truth . . . does not, as a matter of law, overcome a confessor’s will . . . .” (Internal quotation marks omitted.) Id. In the present case, the statement at issue was an attempt to convince the defendant to tell the truth and nothing more. We conclude, therefore, that the officer’s conduct could not be said to be coercive.

B

As to the alleged promise made by the officers, the defendant testified that the police had told him that if he signed the waiver of rights forms, his bond would be reduced from a surety bond to a nonsurety bond. The court found that no promises had been made to the defendant. Moreover, the record discloses that the defendant signed a statement of rights and waiver form that specifically stated that he was making the statement without any promises or threats having been made to him and that no pressure of any kind had been used against him.

This court defers to the factual findings of the trial court. In the present case, there is a dearth of evidence to support the defendant’s claim that there was an impermissible promise made. Furthermore, Baez testified that no promises were made to the defendant, and the court was free to credit his testimony.

Our examination of the record reveals that the court’s finding that the defendant’s statement was voluntary was not improper. It is within the exclusive province of the fact finder to determine which evidence is credible and which is not. See State v. Rodriguez, 56 Conn. App. 117, 122, 741 A.2d 326 (1999), cert. denied, 252 Conn. 926, 746 A.2d 791 (2000). In the present case, the court found no evidence of coercive police conduct. The evidence credited by the court established that the defendant knowingly and voluntarily had waived his rights. The defendant has failed to establish coercive police conduct. Under the federal constitution, therefore, the defendant’s statements were not given involuntarily. Consequently, we find no error in the court’s denial of the defendant’s motion to suppress.

II

The defendant next claims that the court improperly excluded extrinsic evidence on a collateral matter. Specifically, the defendant argues that the court improperly excluded evidence that was proffered to impeach the credibility of Baez.

At trial, Baez testified that the defendant’s statement was not put in writing because he was going to use the defendant as an informant and did not want the statement to become part of the public record. Baez testified that this was done to protect the defendant. The defendant attempted to proffer testimony tending to show that Baez’ decision not to put the defendant’s statement in writing was unnecessary because such written statements generally do not become part of the public record. The defendant claimed that this evidence pertained to the credibility of Baez. The court excluded the evidence, finding that the evidence was extrinsic and was offered to impeach Baez on a collateral matter. Furthermore, the court found that even if it were relevant, such evidence would be barred under § 4-3 of the Connecticut Code of Evidence because it lacked probative value.

At the outset, we note that we will set aside a court’s evidentiary ruling only when there has been a clear abuse of discretion. See State v. Aponte, 249 Conn. 735, 750, 738 A.2d 117 (1999). “A witness may not be impeached by contradicting his or her testimony as to collateral matters, that is, matters that are not directly relevant and material to the merits of the case. . . . Thus, the answer of the witness on cross-examination to a collateral matter is conclusive and cannot be later contradicted. . . . Extrinsic evidence may be admitted, however, if the subject matter of the testimony is not collateral, that is, if it is relevant to a material issue in the case apart from its tendency to contradict the witness. . . . Evidence tending to show the motive, bias or interest of an important witness is never collateral or irrelevant. It may be . . . the very key to an intelligent appraisal of the testimony of the [witness].

“The determination of whether a matter is relevant or collateral . . . generally rests within the sound discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) State v. Colton, 227 Conn. 231, 247-48, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996). “Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” State v. Barnes, 232 Conn. 740, 746-47, 657 A.2d 611 (1995).

The court was in the best position to determine whether the proffered testimony pertained to a collateral matter or whether it was relevant. The court’s evi-dentiary rulings are given great deference precisely because the court was in the best position to hear and to assess the witnesses’ testimony in the context of the entire trial. The issue at trial was whether the defendant had sold narcotics. The proffered testimony had no bearing on that issue. The testimony was proffered to contradict Baez’ testimony about his decision not to record the defendant’s statement in writing. The testimony was insufficient to show any motive, bias or interest on the part of Baez. Consequently, we conclude that there was no abuse of discretion in the court’s disallowing the testimony.

At oral argument, the state conceded, as it must, that under State v. Howard, 221 Conn. 447, 460-63, 604 A. 2d 1294 (1992), the court improperly sentenced the defendant separately on each conspiracy count rather than combining them and sentencing him on only one conviction.

The judgment is reversed in part and the case is remanded with direction to combine the conspiracy convictions and for resentencing. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The state concedes that under State v. Howard, 221 Conn. 447, 460-63, 604 A.2d 1294 (1992), the trial court improperly sentenced the defendant on each conspiracy conviction rather than combining them and sentencing him on only one conviction.

       The defendant asserts a violation of our state constitution. In the absence of an independent state constitutional analysis on his part, however, we decline to address state constitutional issues. See State v. Pinder, 250 Conn. 385, 389 n.4, 736 A.2d 857 (1999).

       The defendant waived his rights to have an attorney, to remain silent and to terminate the questioning at any time.


author: FLYNN, J. SCHALLER, J.,

text:
    STATE OF CONNECTICUT v. LUIS ROSARIO
    (AC 22379)
    Lavery, C. J., and Schaller and Flynn, Js.
    Argued November 20, 2003 —
    officially released February 24, 2004

      William F. Gallagher, with whom, on the brief, were Hugh D. Hughes and Joseph G. Walsh, for the appellant (defendant).

      Susan C. Marks, supervisory assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Corinne L. Klatt, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Luis Rosario, was the driver of a vehicle that struck and killed a pedestrian. As a consequence of that accident, the state charged him in a three count information with evasion of responsibility in the operation of a motor vehicle in violation of General Statutes § 14-224 (a), manslaughter in the second degree with a motor vehicle in violation of General Statutes § 53a-56b, and manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (l). After a trial by jury, the defendant was convicted of evasion of responsibility in the operation of a motor vehicle and acquitted of manslaughter in the second degree. He was sentenced to ten years in the custody of the commissioner of correction, the execution of which was to be suspended after he had served eight years with five years of probation thereafter. When the jury was unable to reach a unanimous decision as to the second count, manslaughter in the second degree with a motor vehicle, the court declared a mistrial as to that count. On appeal, the defendant claims that the court acted improperly in that it (1) denied his motion for a judgment of acquittal on the charge of evading responsibility, (2) did not suppress the tests of his blood alcohol content from the night of the accident, (3) precluded evidence of the victim’s blood alcohol content and (4) prevented the defendant on cross-examination from introducing portions of his statement to the police when those portions were necessary to clarify other portions that were brought out in the state’s direct examination. We address the first issue together with the only one of the defendant’s remaining evidentiary issues that relates to his conviction on the evasion of responsibility charge. We decline to review the remaining evidentiary issues relating to the charge of manslaughter in the second degree with a motor vehicle on which the jury could not agree, thereby resulting in a mistrial as to that count. On that charge, there has been no final judgment. We affirm the judgment of the trial court as to the conviction of the crime of evasion of responsibility in the operation of a motor vehicle.

The following evidence was presented to the jury. On January 23, 2000, at approximately 8:30 p.m., the deceased, Yvonne Spaziani, was leaving the Park East Cafe in Waterbury to wait for a taxicab she had called to take her and her son home. Rene Cunningham, a patron of the Park East Cafe, also was leaving, and when he noticed Spaziani and her son waiting, he offered them a ride home. Cunningham’s car was parked across the street. After letting several cars pass and looking both ways to make certain the road was clear, the three of them began to cross the road with Cunningham on the left, the child in the middle and Spaziani on the right, closest to the path of the defendant’s oncoming vehicle.

As they reached the center of the street, Cunningham noticed the defendant’s car approaching them at a high rate of speed. Cunningham called out to Spaziani and picked up her child by his jacket collar, pulling him to safety. Spaziani was still in the road when she was struck by the defendant’s vehicle, causing her death.

Several people witnessed the accident, including Cunningham and another motorist who had been proceeding in the opposite direction from the defendant’s vehicle. The defendant did not stop immediately after striking Spaziani but, instead, drove directly to his home. When he arrived at his home, the defendant was upset at what had just happened. After speaking with his wife, the defendant turned himself in at the Waterbury police station approximately twenty minutes after the first report of the accident. Once at the police station, the defendant reported what had happened, gave a voluntary written statement and consented to blood and urine tests.

I

The defendant’s first claim relates to the court’s denial of his motion for a,judgment of acquittal, which he made after the jury returned a verdict of guilty as to the charge of evading responsibility. See General Statutes § 14-224 (a). His claim on appeal is that the state failed to prove the last element of the crime, as charged, that is the duty to report his name, address and other pertinent information. The defendant argues that he complied with the requirements of the statute because he arrived at the police station approximately twenty minutes after the accident and fully cooperated with the police by giving the statutorily required information and submitting to blood and urine tests. Review of this claim necessarily entails our review of what § 14-224 requires of a motorist when personal injuries or physical damage result from a collision. This is so because if the statute mandates that a driver at once stop when knowingly involved in such a situation, then the uncontroverted evidence of the defendant’s failure to stop and the factual evidence from which the jury could have inferred that the defendant had knowledge of the collision with Spaziani was sufficient evidence on which to convict the defendant of the crime of evasion of responsibility in the operation of a motor vehicle.

The defendant’s claim presents a question of statutory interpretation over which our review is plenary. See State v. Hackett, 72 Conn. App. 127, 132, 804 A.2d 225, cert. denied, 262 Conn. 904, 810 A.2d 270 (2002). “It is axiomatic that the process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citations omitted; internal quotation marks omitted.) Giaimo v. New Haven, 257 Conn. 481, 493, 778 A.2d 33 (2001).

We first analyze the language of the statute. Section 14-224 (a) provides: “Each person operating a motor vehicle who is knowingly involved in an accident which causes serious physical injury, as defined in section 53a-3, to or results in the death of any other person shall at once stop and render such assistance as may be needed and shall give his name, address and operator’s license number and registration number to the person injured or to any officer or witness to the death or serious physical injury of any person, and if such operator of the motor vehicle causing the death or serious physical injury of any person is unable to give his name, address and operator’s license number and registration number to the person injured or to any witness or officer, for any reason or cause, such operator shall immediately report such death or serious physical Injury of any person to a police officer, a constable, a state police officer or an inspector of motor vehicles or at the nearest police precinct or station, and shall state in such report the location and circumstances of the accident causing the death or serious physical injury of any person and his name, address, operator’s license number and registration number.”

The defendant, in his brief, argues that “§ 14-224 (a) requires proof of four elements: Operation of a motor vehicle, knowledge by the operator of his involvement in an accident, injury to a person other than the operator, caused by the accident, and failure by the operator to give specified information.” (Internal quotation marks omitted.) The defendant did not mention as a necessary element the statutory requirement to stop immediately and to render assistance. The defendant argues that the language of the statute supports a con-elusion that there are two alternative courses of action permitted by the statute insofar as the operator’s repoiting of the accident is concerned. The operator can provide the required information at the scene or at the nearest police station. In permitting reporting off scene to a constable, police officer, motor vehicle inspector or at a police station, the statute does provide for such a conditional alternative. The choice between the statutory alternatives, however, is not left to the discretion of the operator. The statute provides that only when an operator is “unable . . . for any reason or cause” to furnish the specified information at the scene may he do so “immediately” to a constable, an inspector of motor vehicles, a state or local police officer or at the nearest police station.

The language of the statute requires the operator to “at once stop and render such assistance as may be needed . . . .” General Statutes § 14-224 (a). The language of the statute does not support the conclusion, implicit in the defendant’s argument, that an operator may comply with the statute by failing to stop at the scene and fulfilling the reporting requirements off scene.

Section 14-224 imposes cumulative duties on operators involved in accidents. In construing a similar statute, the California Supreme Court provided an illustration of how cumulative successive duties may be imposed: “[A] defendant may be convicted under said section ... of a failure to do any one of several things required of him in the event of a collision with another car or with a human being. Of them he may be convicted of a failure ... to stop immediately . . . or ... to give his name and address ... or ... to render necessary assistance.” People v. Scofield, 203 Cal. 703, 710, 265 P. 914 (1928). Section 14-224 (a) proceeds to outline the reporting requirements only after instructing that the operator must stop. At this point, the manner in which the required information may be reported is phrased in the alternative, but the operator may proceed to the second reporting alternative, which might allow him to leave the scene of the accident at which he has already stopped, only if he is “unable to give his name, address and operator’s license number and registration number to the person injured or to any witness or officer . . . .” General Statutes § 14-224 (a). The second alternative of reporting to the nearest police station applies to an operator who already has stopped at the scene but is unable for any reason at that point to provide the required information. The defendant’s interpretation of the language of the statute ignores an operator’s obligation to stop and to render assistance.

The evidence amply supports the conclusion that one of the reasons the defendant failed to stop at the scene was that he was scared by what had occurred. The defendant’s emotional state, however, does not excuse his actions.* ** We observe that General Statutes § 14-224 (a) allows an operator to report an accident at the nearest police station if he is unable to give the statutorily required information “to the person injured or to any witness or officer, for any reason or cause . . . .” (Emphasis added.) An operator’s emotional state may be relevant to the issue of whether he truly was unable to provide the required information at the scene of the accident, but the operator’s emotional state alone will not excuse his failure to comply with the statute’s command that he “shall at once stop and render such assistance as may be needed . . . .” Although the reporting requirements are phrased in the alternative, the statute’s directive to stop at once does not provide a similar alternative.* *** Section 14-224 does not leave an operator an excuse for failing to stop for any reason as it does for failing to give the required information at the scene. The defendant observes in his brief that “[s]uch a rule of law exposes motor vehicle defendants involved in an accident to ten year sentences every single time one of them gets scared and has to think things over before going to the police.” As unfair as this result may appear to the defendant and others faced with similar situations, however, this is precisely the effect of § 14-224 as it was enacted by the General Assembly.

We next analyze the legislative history of the statute. The defendant and the state both argue that the legislative history of § 14-224 supports their respective interpretations. We conclude, however, that the legislative history establishes that the failure to stop immediately cannot be cured at some later time by an operator reporting the incident to the police. The defendant cites the fact that the most recent amendment to § 14-224, Public Acts 1997, No. 97-291, § 3 (P.A. 97-291), increased the penalty specifically designed to remedy the problem of intoxicated drivers who flee the scene of an accident. The legislature sought to close a loophole in the statutes that formerly would encourage intoxicated drivers to flee the scene of a fatal accident and allow evidence of alcohol in their breath or blood to dissipate. As a result, these drivers would be punished under what was the more lenient evasion of responsibility statute rather than under General Statutes § 53a-56b, which punishes drivers who operate motor vehicles while under the influence of intoxicating liquor of drugs and cause the death of another person, and which provides a penalty of ten years.

Although the amendment addressed that loophole, we disagree that § 14-224, itself, had as its principal purpose the apprehension of drunken drivers who leave the scene of an accident and are unable to be tested. The statute predated by decades the 1997 Senate debates concerning drunken driving. “The purpose of the statute on evading responsibility is to ensure that when the driver of a motor vehicle is involved in an accident, he or she will promptly stop, render any necessary assistance and identify himself or herself. The essence of the offense of evading responsibility is the failure of the driver to stop and render aid.” State v. Johnson, 227 Conn. 534, 544, 630 A.2d 1059 (1993); see also State v. Sebben, 185 N.W.2d 771, 774 (Iowa 1971) (describing multiple legislative objectives of penalizing hit-and-run drivers); State v. Severance, 120 Vt. 268, 272, 138 A.2d 425 (1958) (same). The legislative history supports an inference that the increased penalty for evading responsibility in the operation of a motor vehicle was meant to discourage drunken drivers from avoiding testing by leaving the scene of an accident. We note that the goal of the increased penalty was not thwarted in this case where there was a delay of reporting off scene of only approximately twenty minutes. However, the legislative histoiy does not suggest that the requirement of stopping and rendering assistance was no longer one of the purposes of the statute. Both before and after the adoption of P.A. 97-291 amending § 14-224, the legislature was concerned with operators who failed to stop after being involved in accidents. Before and after the adoption of P.A. 97-291, the requirement of stopping at the scene bound the operator of a motor vehicle who caused personal injury or death.

Section 14-224 was not designed solely to apply to drunken drivers. On the contrary, the fact that intoxicated drivers could use § 14-224 as a loophole suggests that the relationship between this statute and § 53a-56b, which punishes intoxicated drivers who cause death, was not considered by the legislature until very recently. It appears that § 14-224 was designed, in part, to encourage operators who are involved in accidents to stop and to render whatever assistance they can rather than to leave victims who may have serious or potentially fatal injuries to fend for themselves.

The courts of this state have not provided a settled and complete description of the elements of § 14-224. See generally State v. Jordan, 5 Conn. Cir. Ct. 561, 564, 258 A.2d 552 (1969); State v. Richter, 3 Conn. Cir. Ct. 99, 101, 208 A.2d 359 (1964); State v. LeTourneau, 23 Conn. Sup. 420, 424, 184 A.2d 180 (1962); State v. LaRiviere, 22 Conn. Sup. 385, 389, 173 A.2d 900 (1961). Jordan, Richter, LeToumeau and LaRiviere all describe the necessary elements of § 14-224, which are (1) operation, (2) knowing involvement in a collision or accident and (3) damage to person or property. However, LaRiviere and LeToumeau fail to mention the statutory duties to stop and to render assistance. Richter describes the duty to stop, but fails to mention the duty to provide assistance. Finally, Jordan and Richter make no mention of the statutory alternative of reporting information to police when the defendant is unable to do so at the scene. “Though there is a presumption in some circumstances that when [the legislature] reenacts a statute without change it is aware of a judicial interpretation of that statute and intends to adopt it . . . that presumption applies only to settled judicial constructions . . . .” (Citations omitted; internal quotation marks omitted.) In re Century Brass Products, Inc., 22 F.3d 37, 40 (2d Cir. 1994); see also Martin v. Plainville, 240 Conn. 105, 110, 689 A.2d 1125 (1997).

We therefore conclude that the defendant’s interpretation of the statute is incorrect. “In many jurisdictions there are similar statutes imposing duties upon a motorist who has been involved in an accident. Such statutes impose no duties other than those which good conscience will direct a driver to observe. They are directed primarily against a callous class known as ‘hit and run’ drivers. These statutes are designed to prohibit drivers of motor cars from seeking to evade civil or criminal liability by escaping, before their identity can be established, and from leaving persons injured in collisions, in distress or danger, for want of proper medical or surgical treatment. . . . The duty imposed on the driver of the vehicle by the statute is not passive but requires positive, affirmative action, that is to say, to stop and to give aid and information .... Such duty varies to some extent in the several jurisdictions where such or similar statutes are in force, depending upon the phraseology of the statutes, and where several distinct acts are required the omission of any one or more of them constitutes a violation.” (Citations omitted.) State v. Severance, supra, 120 Vt. 272-73; see also State v. Mann, 135 Wis. 2d 420, 429, 400 N.W.2d 489 (Wis. App. 1986) (statute imposes cumulative duties).

To establish a violation of § 14-224 (a), the state first had to prove that (1) the defendant was operating a motor vehicle, (2) the defendant was knowingly involved in an accident and (3) that accident caused the death or serious physical injury of any other person. Once those predicate elements were established, the state could prove a violation of § 14-224 (a) if it proved that the defendant failed to fulfill any one or more of the following duties required of him by the statute: (4) that the defendant failed to stop at once and render such assistance as may have been needed; or (5) unless there was evidence that the defendant was unable, for any reason or cause, to provide the statutorily required information at the scene, that the defendant failed to give his name, address, operator’s license number and registration number to the person injured, any officer or a witness to the accident; or (6) if there was evidence that the defendant was unable, for any reason or cause, to provide the statutorily required information at the scene, that the defendant failed to report immediately the death or serious physical injury to a police officer, a constable, a state police officer or an inspector of motor vehicles, or at the nearest police precinct or station, and to give the same information as to his name, address, operator’s license number and registration number to the police officer, constable, state police officer or inspector of motor vehicles together with additional information that would not have been required had the report been made at the scene of the accident, namely, the location and circumstances of the accident.

It is undisputed that the state presented sufficient evidence to establish the predicate elements of the statute. After finding the predicate elements of the statute to be satisfied, the jury had to find only that the defendant did not stop to convict him of evasion of responsibility in the operation of a motor vehicle. Once the jury reached this conclusion, there was no need for it to inquire further as to whether he was unable to give information at the scene.

Although neither party during trial or on appeal challenged the jury instructions given by the court, we note that the instructions initially given by the court did not describe the elements of the statute adequately. The defendant argues that there was insufficient evidence to convict him of the evasion of responsibility charge on the basis of the elements set forth in this initial, inadequate charge. The court subsequently issued a supplemental instruction, however, that explained that it was the state’s burden to prove “that [the defendant] failed to stop and render assistance and provide his name, address, and operator’s number to any witnesses to the incident, or that — and that he failed to immediately report the incident to apolice officer, a state police officer or the nearest police station.” This supplemental instruction was sufficient to cure the problems that might have arisen had the jury been left solely with the court’s initial, improper instruction on the elements of § 14-224 (a).

The court’s use of the words “or that — and that” in the supplemental instruction possibly could have confused the jury as to the necessary elements of § 14-224. See Mack v. Perzanowski, 172 Conn. 310, 314-15, 374 A.2d 236 (1977) (discussing use of “and/or” in jury instruction). Use of the and/or conjunction was improper, but the defendant would not have suffered any prejudice regardless of which conjunction the jury applied in this case. Proof that the defendant failed to stop at the scene would have been sufficient to support a conviction under § 14-224. It is undisputed that the state presented sufficient evidence to establish that the defendant failed to stop and render assistance at the scene. The defendant’s own statement to the police on the night of the accident was that he did not stop. Any possible error in the court’s instruction regarding the duty to report required information is therefore harmless, and no evidence was necessary concerning those elements because the jury had sufficient evidence to find the defendant guilty of the evasion of responsibility charge without ever reaching the issue that was presented by an “and/or” reporting instruction. We conclude that the defendant did not suffer any prejudice as a result of the court’s description of the elements of the statute.

II

The defendant also argues that the court erroneously allowed the state to put into evidence a portion of the defendant’s statement to Officer Richard Baxter of the Waterbury police department by asking Baxter questions about the statement while precluding defense counsel from asking him about other information contained in the statement. The statement to which the defendant refers is reproduced in part as an appendix to the defendant’s brief. It is the appellant’s duty to provide us with an adequate record for review. Practice Book § 61-10; Daigle v. Metropolitan Property & Casualty Ins. Co., 257 Conn. 359, 364, 777 A.2d 681 (2001). “The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. . . . Conclusions of the trial court cannot be reviewed where the appellant fails to establish through an adequate record that the trial court incorrectly applied the law or could not reasonably have concluded as it did . . . .” (Internal quotation marks omitted.) Daigle v. Metropolitan Property & Casualty Ins. Co., supra, 364. The documents attached to the defendant’s brief were never marked for identification at trial. The record is therefore inadequate for review of this issue.

III

The defendant’s remaining claims are all evidentiary in nature. However, the various items of evidence that the defendant claims were included or excluded improperly all relate to the second count of the information that charged him with manslaughter in the second degree with a motor vehicle in violation of § 53a-56b. The jury was unable to reach a unanimous decision on the second count, and the court declared a mistrial as to that count. “[T]he trial court’s declaration of a mistrial will lead to a second trial. Thus, there is no final judgment under [General Statutes §] 52-263 because [n]o rights of the parties have been yet determined.” (Internal quotation marks omitted.) Robbins v. Van Gilder, 225 Conn. 238, 251, 622 A.2d 555 (1993). In the absence of a final judgment, we cannot reach the merits of the defendant’s remaining claims, and the appeal as to the charge of manslaughter in the second degree with a motor vehicle is therefore dismissed. See id.

The judgment is affirmed.

In this opinion LAVERY, C. J., concurred.

SCHALLER, J.,

concurring. Although I concur in the result reached by the majority, I write separately to express my disagreement with several aspects of the analysis.

First, the legislative history analysis in its present form is unnecessary. State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003) (en banc), which applies here, explicitly recognized that the text of a statute is “the most important factor to be considered.” Because we agree that, in this case, the statutory language is clear, much of the majority’s legislative history analysis is unnecessary. Under the circumstances of this case, I suggest that the following statement would comply with the requirements of State v. Courchesne, supra, 537: The legislative history, when read with the language of the statute, establishes that the failure to stop immediately cannot be cured at some later time by an operator reporting the incident to police. “The purpose of the statute on evading responsibility is to ensure that when the driver of a motor vehicle is involved in an accident, he or she will promptly stop, render any necessary assistance and identify himself or herself. The essence of the offense of evading responsibility is the failure of the driver to stop and render aid.” (Emphasis added.) State v. Johnson, 227 Conn. 534, 544, 630 A.2d 1059 (1993).

Second, I believe that the portion of the majority opinion discussing the failure of courts in State v. Jordan, 5 Conn. Cir. Ct. 561, 564, 258 A.2d 552 (1969), State v. Richter, 3 Conn. Cir. Ct. 99, 101, 208 A.2d 359 (1964), State v. LeTourneau, 23 Conn. Sup. 420, 424, 184 A.2d 180 (1962), and State v. LaRiviere, 22 Conn. Sup. 385, 389, 173 A.2d 900 (1961), to decide the elements of the statute and the conclusions drawn therefrom is unnecessary. In addition, the reliance on People v. Scofield, 203 Cal. 703, 710, 265 P. 914 (1928), State v. Severance, 120 Vt. 268, 272, 138 A.2d 425 (1958), and State v. Mann, 135 Wis. 2d 420, 429, 400 N.W.2d 489 (App. 1986), cases from other jurisdictions, without analysis, does nothing to support the result in this case. The majority’s application of Scofield does not make sense, as Scofield was not interpreting General Statutes § 14-224. Further, we risk incorrect use of other jurisdictions’ case law when we cite to Severance and to Mann without interpreting their respective underlying statutes.

Finally, the analysis of the jury instructions is unnecessary and, in fact, gratuitous, as neither party has raised any issue pertaining to the jury instructions. The majority concludes that any impropriety was harmless. That conclusion is advisory and should not be part of our opinion. Advisory opinions are created when courts address issues that are not “pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaced situation embracing conflicting and demanding interests . . . .” United States v. Fruehauf, 365 U.S. 146, 157, 81 S. Ct. 547, 5 L. Ed. 2d 476 (1961). The “generic problems with advisory opinions stem from the fact that they are usually issued without briefs and arguments of counsel . . . .” L. Tribe, American Constitutional Law (2d Ed. 1988) § 3-9, p. 74 n.7.

Our Supreme Court does not approve of this court reaching and deciding issues that were not raised or briefed by the parties. See Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 522, 815 A.2d 1188 (2003); Lynch v. Granby Holdings, 230 Conn. 95, 98-99, 644 A.2d 325 (1994). We should not, and indeed are without authority, to render advisory opinions. Tyler E. Lyman, Inc. v. Lodrini, 78 Conn. App. 582, 589-90 n.5, 828 A.2d 676 (2003); see also Bell Atlantic Mobile, Inc. v. Dept. of Public Utility Control, 253 Conn. 453, 490-91, 754 A.2d 128 (2000). In light of those policies, and in danger of misinterpreting the issue, as we have neither argument nor briefs from the parties, I believe that this portion of the opinion should be eliminated.

For the foregoing reasons, I respectfully concur in the result.

       The state improperly phrased count one of the information, charging the defendant with evasion of responsibility in the operation of a motor vehicle, by stating that he had violated General Statutes § 14-224 (a) in that the defendant, while in the “operation of a motor vehicle on a public road, was knowingly . . . involved in an accident causing the serious physical injury and subsequent death of Yvonne Spaziani, and failed to stop and

        -render assistance and provide his name, address and operator’s number to any witnesses to the said incident, and failed to immediately report said incident to a police officer, a state police officer, or at the nearest police station . . . (Emphasis added.) An operator does not have a statutory obligation to give information both to any witnesses or to police at the scene and also to police at the nearest police station.

       We note that the evidence supports an inference that someone at the scene reported the accident immediately after it occurred.

       Cal. Code § 20001 (a) provides: “The driver of any vehicle involved in an accident resulting in injury to any person, other than himself or herself, or in the death of any person shall immediately stop the vehicle at the scene of the accident and shall fulfill the requirements of Sections 20003 and 20004.”
      Cal. Code § 20003 (a) provides: “The driver of any vehicle involved in an accident resulting in injury to or death of any person shall also give his or her name, current residence address, the names and current residence addresses of any occupant of the driver’s vehicle injured in the accident, the registration number of the vehicle he or she is driving, and the name and current residence address of the owner to the person struck or the driver or occupants of any vehicle collided with, and shall give the information to any traffic or police officer at the scene of the accident. The driver also shall render to any person injured in the accident reasonable assistance, including transporting, ormaMng arrangements fortransporting, any injured person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that treatment is necessary or if that transportation is requested by any injured person.”

       We recognize that a situation might arise in which the operator’s emotional state and subsequent flight from the scene are grounded in facts that could excuse his failure to stop. See, e.g., Isom v. State, 37 Ala. App. 416, 69 So. 2d 716 (1954) (“According to the testimony of the defendant he was confronted with danger to life or great bodily harm. It would be unjust and unreasonable to declare that, despite this, he was required to remain at the scene and go through the formality of complying with each and every requirement of the statute.”). “Accused’s honest belief that he was in danger of bodily harm if he remained at the scene of the accident may justify his conduct in leaving without giving identification; but the alleged fear of accused that he might have been assaulted if he had stopped to comply with the statute does not excuse his failure to comply, where there was not any attempt or threat to assault him or the display of any weapon with which an assault might have been committed.” 61A C.J.S. 553, Motor Vehicles, § 676 (1970). There was no evidence of any threats or a display of weapons at the scene of the accident in tire present case that might have justified Ihe defendant’s failure to stop.

       We note that many similar hit-and-run statutes of other jurisdictions provide that the operator shall immediately stop at the scene of the accident “or as close thereto as possible.” See, e.g., Ala. Code § 32-10-1; Ark. Code Ann. § 27-53-101; Colo. Rev. Stat. § 42-4-1601; Ga. Code Ann. § 40-6-270; Haw. Rev. Stat. § 291C-12; Idaho Code § 18-8007.

       We recognize that “it is obvious that criminal liability should not attach in all cases where a literal application of the language of the statute might be made.” People v. Scofield, supra, 203 Cal. 708. For example, several jurisdictions recognize physical impossibility as a potential defense to a charge of “hit and run.” See id.; State v. Lloyd, 104 Wis. 2d 49, 59, 310 N.W.2d 617 (App. 1981). In the case of physical impossibility, it would be improper to say that the defendant chose not to stop. In the present case, however, there was no evidence that the defendant was physically unable to stop his vehicle.

       In the Senate debate on P.A. 97-291, Senator Thomas F. Upson stated in relevant part: “In my area, a young man was killed last year, actually a good friend of a member of my family, was killed one night by a drunk driver. And of course, the drunk driver was not caught and it turned out maybe four hours later he was arrested.
      “But, he left the scene of the accident after killing. [It has] been proved that he killed this boy. But, because he did not test within a two hour period, remember for drunk driving, you have to test within two hours ... he was never tested for drunk driving.
      “So what I’m asking is, that the evading responsibility laws, instead of having the penalty being one to five years ... be one to ten years and that the fine will be not more than [$10,000]. So I'm increasing . . . the fine from $5,000 to $10,000 and the imprisonment from one to ten years instead of one to five year’s.” 40 S. Proe., Pt. 8, 1997 Sess., p. 2522, remarks of Senator Thomas F. Upson.

       “The statutory requirement of stopping and rendering aid to the injured is merely a codification of the common law objective of preventing further harm which the actor realizes or should realize threatens the injured person.” Karl v. C.A. Reed Lumber Co., 275 Cal. App. 2d 358, 361, 79 Cal. Rptr. 852 (1969).

       The defendant’s failure to stop and to render assistance in this case does not appear to have contributed to the victim’s subsequent death. One of the patrons of the Park East Cafe was an emergency medical technician, and an ambulance arrived at the scene very soon after the accident. Nevertheless, an operator cannot avoid his obligations under § 14-224 by engaging in post hoc speculation as to whether his assistance would have been necessary.

       The concurrence indicates that we state that Jordan, Richter, LeTourneau and LaRiviere failed to decide the elements of the statute. We neither state that nor hold that.

       "[T]he legislature is presumed to be aware of 1he interpretation of a statute and . . . its subsequent nonaction may be understood as a validation of that interpretation.” (Internal quotation marks omitted.) Martin v. Plainville, supra, 240 Conn. 110.

       The trial court initially instructed the jury that to prove the defendant guilty of a violation of § 14-224, the state had to establish the three predicate elements of operation, involvement in an accident causing injury or death, and knowledge of the accident, and that the defendant failed to provide the requisite information. This instruction was given at the request of the defendant, and the state did not object to the charge as given. The court then proceeded to read the text of the statute. Nowhere in its initial instruction on the elements of § 14-224 did the court explain the fact that an operator must stop his vehicle at once and give assistance. This initial instruction was not a correct statement of the law.

       We address, as we think we should, the issues raised by the defendant. In his brief, the defendant set forth four elements of the crime originally charged by the state and claimed that the evidence was insufficient to prove a violation of the fourth, namely, “failure to give the specified information.” The defendant specifically argues in his brief that “[n] either the state nor the defendant took exception to this charge, and the state cannot now claim that it inaccurately states the law.” An analysis of the record of the recharge, which the defendant did not cite in his brief, reveals that the court correctly recharged that the defendant was required to stop at the scene, something it did not say in the initial charge. We address what necessary elements the statute requires to be proved because the state is not required to prove a failure to give the required information if the defendant operator failed to stop at the scene. The defendant conceded at oral argument that if stopping at the scene is a necessary element of the crime, then “[the defendant] lose[s] on that issue.”

       We have for our review only the transcript of the proceedings below, and, therefore, we recognize that the instruction as given may not have been perceived by the jury as an “and/or” statement. Reading the instruction another way, it could also be perceived as a correction of “or that” to “and that.” If this is so, then the instruction is still inaccurate because it does not state that the option of reporting information off scene is only available if the defendant was unable to render information at the scene. Neither “and” nor “or” appropriately convey the language of § 14-224.

       General Statutes § 53a-56b (a) provides: “Aperson is guilty of manslaughter in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of intoxicating liquor or any drug or both, he causes the death of another person as a consequence of the effect of such liquor or drug.”

       Indeed, the majority opinion seems explicitly to recognize the danger of its undertaking in footnote 14 of its opinion. As Professor Tribe suggests, problems such as this can be avoided if the issue had been raised, briefed and argued. We would then be dealing with a focused claim.


author: McLACHLAN, J.

text:
    STATE OF CONNECTICUT v. CODLYN B. DALEY
    (AC 23567)
    Foti, Schaller and McLachlan, Js.
    Argued December 4, 2003 —
    officially released February 24, 2004

      Matthew Costello, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Cynthia Baer, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

McLACHLAN, J.

The defendant, Codlyn B. Daley, appeals from the judgment of conviction, rendered by the trial court subsequent to his plea of nolo contendere, of one count of larceny in the second degree in violation of General Statutes § 53a-123. The defendant’s sole claim on appeal is that the court improperly denied his postsentence motion to withdraw his plea. Specifically, the defendant claims that the court’s plea canvass was defective in that it failed to apprise him of the elements of the crime of larceny in the second degree and that the plea, therefore, was not entered knowingly and voluntarily as required by (1) the due process clause of the fourteenth amendment to the United States constitution, and (2) Practice Book §§ 39-19 and 39-20. We affirm the judgment of the trial court.

On February 27, 1999, the defendant, in his capacity as a custodian for the city of East Hartford, submitted falsified time cards indicating that he had worked simultaneously at two different locations. It subsequently was discovered that, as a result of those falsified time cards, the city overpaid the defendant by approximately $125. On May 18, 2000, the defendant was arrested and arraigned on the charge of larceny in the second degree.

On January 3, 2001, the defendant entered a plea of nolo contendere to the charge. The court thereupon imposed the agreed on sentence of one year, execution suspended, and one year conditional discharge. Thereafter, the court conducted a plea canvass in which it questioned the defendant as to the voluntariness of his plea and apprised him of his constitutional rights, which he acknowledged he was waiving. At no point during the plea canvass or contemporaneous proceedings did the defendant claim that his plea was not voluntary or that the canvass was in any way deficient.

On September 19,2001, more than eight months after sentencing, the defendant filed a motion to withdraw his plea, claiming that the plea canvass failed to comport strictly with Practice Book § § 39-19 and 39-20, and failed to satisfy constitutional due process standards. On October 1,2002, the court held a hearing on the motion. After initially advancing several ill-defined arguments as to why the canvass was deficient, the defendant eventually distilled his argument to the claim that the court failed to apprise him of the essential elements of the crime to which he had pleaded, to wit, the element of fraud. At the conclusion of oral argument, the court denied the motion, reasoning that even if the canvass itself did not expressly enumerate all of the elements of the crime charged, the record nevertheless revealed that the defendant likely was made aware of those elements by his attorney at a pretrial hearing. This appeal followed.

The defendant’s sole claim on appeal is that the court improperly denied his motion to withdraw his plea. We decline to review the defendant’s claim.

We underscore, at the outset, that the defendant’s motion to withdraw was filed more than nine months after sentencing. Practice Book § 39-26 provides in relevant part: “A defendant may not withdraw his or her plea after the conclusion of the proceeding at which the sentence was imposed.” We have accordingly recognized that because of the interest in the finality of sentencing that this provision exemplifies, the failure of a defendant to file a motion to withdraw his plea before the conclusion of sentencing proceedings ordinarily precludes review of any claimed infirmities in the acceptance of the plea. See State v. Webb, 62 Conn. App. 805, 810, 772 A.2d 690 (2001).

Notwithstanding that limitation, our courts have recognized two exceptions under which an appellate court can review claimed infirmities in a plea that are raised in an untimely motion to withdraw. See id., 811. First, we have afforded review in cases when there is specific legislative authorization to withdraw a plea after the imposition of the sentence. See General Statutes § 54-lj (requiring that court inform defendant of deportation consequences of guilty plea and permitting withdrawal of plea if court fails to do so); see also State v. Webb, supra, 62 Conn. App. 811; State v. Soares, 57 Conn. App. 149, 748 A.2d 331 (2000). Second, we have afforded review when the defendant has asserted a constitutional claim that satisfies the requirements of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). See, e.g., State v. Williams, 60 Conn. App. 575, 578-79, 760 A.2d 948 (concluding that despite defendant’s failure to preserve claim by filing timely motion to withdraw, claim nevertheless reviewable because it asserts violation of fundamental constitutional right), cert. denied, 255 Conn. 922, 763 A.2d 1043 (2000); State v. Childree, 189 Conn. 114, 119, 454 A.2d 1274 (1983) (same).

The defendant has not asserted, nor in our scrutiny have we discovered, any legislative authorization permitting withdrawal of his plea that would bring his claim within the ambit of the first exception. His unpreserved claim can be reviewed, therefore, only if the requirements for Golding review are satisfied. The defendant, however, has not sought review of his unpreserved claim under Golding, and in accordance with our policy of engaging in such review only if it is requested, we decline to review his claim. See State v. Hermann, 38 Conn. App. 56, 65, 658 A.2d 148, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995).

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also pleaded nolo contendere to and was convicted of making a false statement in the second degree in violation of General Statutes § 53a-157b, but he makes no claim on appeal with respect thereto.

       The following colloquy occurred:
      “The Court: Now, the [charge of larceny in the second degree] is because it’s a municipality?
      “[The Prosecutor]: That is correct.
      “[Defense Counsel]: Correct.
      “The Court: All right. So, that’s a felony, sir, and the false statement is a misdemeanor, which is a lot better than a perjury charge. I’m making a finding of guilty based on the facts that I heard. Even though you didn’t admit guilt, you understand I’m making a finding of guilty. Nolo contendere means you don’t contest it. However, you do want the intended disposition that Judge Simon worked out. Is that correct, sir?
      “[The Defendant]: Right.
      “The Court: And you’re satisfied with your lawyer?
      “[The Defendant]: Correct.
      “The Court: And you’ve discussed your pleas with him, and nobody forced you or intimidated you into pleading nolo?
      “[The Defendant]: Correct.
      “The Court: Did you have alcohol or drugs today?
      “[The Defendant]: No.
      “The Court: All right. And you gave up your right to trial, confronting your accusers, contesting the state’s case, cross-examining witnesses, and the state doesn’t have to prove you guilty beyond a reasonable doubt at trial. Is that correct?
      “[The Defendant]: Right.
      “The Courl: Now, the last thing is, because the [charge of larceny in the second degree] is a ten year felony, I believe, yeah, larceny [in the third degree] is a five year felony. So, that would require a presentence investigation unless you want to get sentenced today and you waive the presentence investigation, which I assume you do. Is that correct?
      “[Defense Counsel]: We’ll waive it, Your Honor.
      “[The Prosecutor]: The state would concur.
      “The Court: Okay. Do you want to add anything?
      “[Defense Counsel]: Your Honor, I think I’ve stated all of my concerns to the court and the prosecutor’s office with regard to what my personal feelings are about the appropriateness of this case, although technically legal, even ending up before this court. So, I won’t go any further.
      “The Court: Well, it’s such a small amount that he ended up with a very small profit. As they say, if you’re going to steal, you ought to steal a lot more than that. But it still involves a municipality, and Judge Simon obviously saw something and recommended the conditional discharge. So, in each of those charges, one year suspended, one year conditional discharge concurrent. No costs. And besides behaving, you will also make instant restitution in the amount of $125 . . . .”

       We note that even though the defendant’s sentence had expired by the date of the hearing on the motion to withdraw, his appeal was not rendered moot, the defendant having demonstrated a reasonable possibility of prejudicial collateral consequences flowing from the conviction from which the court could grant practical relief. See State v. McElveen, 261 Conn. 198, 204-16, 802 A.2d 74 (2002).

       General Statutes § 53a-123 provides in relevant part that “[a] person is guilty of larceny in the second degree when he commits larceny, as defined in section 53a-119, and ... (4) the property is obtained by defrauding a public community, and the value of such property is two thousand dollars or less . . . .”

       The defendant raised additional arguments on appeal as to why the plea canvass was deficient, but, as he effectively abandoned those arguments during oral argument on the motion to withdraw before the trial court, we will not consider them on appeal. See State v. Reynolds, 264 Conn. 1, 207, 836 A.2d 224 (2003).

       But see State v. Winer, 69 Conn. App. 738, 796 A.2d 491 (affording review of untimely postsentence motion to withdraw plea without discussion of limitation imposed by Practice Book § 39-26), cert. denied, 261 Conn. 909, 806 A.2d 50 (2002).