text:
    State of Connecticut v. Veronica Hart
    (7913)
    Spallone, Norcott and Landau, Js.

      Argued October 4, 1990
    decision released January 15, 1991

      Susan Brown, assistant public defender, for the appellant (defendant).

      RitaM. Shair, deputy assistant state’s attorney, with whom were JohnM. Bailey, state’s attorney, and, on the brief, John Malone, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals from the judgment of conviction rendered after a jury found her guilty of the crimes of sale of a narcotic substance by a person who was not drug-dependent in violation of General Statutes § 21a-278 (b), sale of a narcotic substance in violation of General Statutes § 21a-277 (a), conspiracy to sell a narcotic substance in violation of General Statutes §§ 53a-48 (a) and 21a-277 (a), and possession of a narcotic substance in violation of General Statutes § 21a-279 (a). On appeal, the defendant claims that the trial court (1) improperly denied her motion in limine that proposed to limit the defendant’s testimony, and the cross-examination of her, to the subject of drug dependency, (2) improperly denied her motion to dismiss the information against her because of prearrest delay, (3) improperly instructed the jury regarding the initial finding of drug dependency, (4) improperly instructed the jury that it could find that the state had sustained its burden of proving that the defendant was not drug-dependent, and (5) improperly sentenced the defendant in violation of her right against double jeopardy. We affirm the trial court’s judgment in part and reverse it in part.

The jury could reasonably have found the following facts. The defendant, Veronica Hart, was a regular patron of 190 East, a bar located in Enfield and known to the local police for extensive drug trafficking. On October 23,1986, as part of an undercover operation, officers Steven Cahill and Paul Vanderheiden, members of the statewide narcotics task force, entered the bar. After Cahill had spread the word that he was interested in buying drugs, the defendant approached him and told him that she had heard that he wanted to buy some cocaine. The defendant told Cahill that she wanted to split a gram of cocaine with him and asked him for $50 in advance. The defendant told Cahill that she was getting the cocaine from “John,” gesturing toward John Cavanaugh, a bouncer at the bar. As soon as Cahill gave the defendant the cash, she approached Cavanaugh and gave it to him. Cavanaugh pocketed the money and handed her a packet containing cocaine. The defendant walked directly back to Cahill, and the two of them went out to his car, split the contents of the package into two packages, took one each, and reentered the bar.

On May 3,1988, the defendant was arrested. Before the beginning of the trial, the defendant moved to dismiss the case due to the delay between the date of the alleged activities and the date of the arrest. The trial court denied this motion. During trial, the defendant made an oral motion in limine seeking a ruling from the court that, if the defendant chose to testify, “her testimony be limited as such to only the issue of dependency and to nothing else in this case.” The court also denied this motion.

At the end of the trial, and after deliberation, the jury returned a verdict finding the defendant guilty on each count charged in the information. The defendant was sentenced on March 12,1989, for a total effective sentence of eight years, execution suspended after five years, with three years probation.

I

The defendant’s first claim is that the trial court improperly denied her motion in limine proposing to limit the defendant’s testimony, and the cross-examination of her, to the subject of drug dependency. Specifically, the defendant asked the trial court to rule that, if the defendant chose to testify, “her testimony be limited as such to only the issue of dependency and to nothing else in the case.” Defense counsel represented that it was her intention, on direct examination of the defendant, not to ask any questions pertaining to the offense charged or the events occurring on the evening of the sale, but to limit the scope of direct examination to the issue of drug dependency. In her brief, the defendant asserts that she was seeking a ruling that would ensure that if she chose to testify, and limited her testimony to the issue of drug dependency, the state would not be allowed to cross-examine her beyond the scope of that proposed direct examination. The trial court denied the defendant’s motion and the defendant elected not to testify.

We conclude that the trial court properly rejected the defendant’s motion because the procedure employed by the defendant, namely, a motion in limine, is an inappropriate vehicle to raise and preserve a challenge to potential cross-examination as being outside of the scope of the defendant’s hypothetical direct examination. State v. Tirado, 21 Conn. App. 449, 454, 574 A.2d 252 (1990); State v. Scott, 11 Conn. App. 102,105, 525 A.2d 1364, cert. denied, 204 Conn. 811, 528 A.2d 1157 (1987). We have no way of knowing, nor could the trial court have known, what the scope of the defendant’s direct examination would have been if she had chosen to testify, whether the state would have chosen to cross-examine the defendant or what the scope of that hypothetical cross-examination would have been. Only a complete record detailing the nature of the defendant’s testimony and the scope of the direct examination permits proper appellate determination of whether a trial court improperly permitted a particular question or line of inquiry. State v. Scott, supra, 107. “In the absence of both the direct and cross-examination, we have no basis on which to review this claim.” State v. Tirado, supra.

II

The defendant’s second claim is that the trial court improperly denied her motion to dismiss the information against her because of prearrest delay. Specifically, the defendant argues that the eighteen month time period between the date of the offenses and her arrest violated her due process rights because she was unable to present a completely adequate defense and because there was no justification for the delay. We disagree.

The primary protection afforded an accused from delay in arrest rests not in the due process clause but in the statute of limitations. State v. Echols, 170 Conn. 11, 17-18, 364 A.2d 225 (1975). The defendant must show more than a mere delay, however, between the offense and the arrest to establish an unconstitutional prearrest delay. “In order to establish a due process violation because of prearrest delay, the defendant must show both that actual substantial prejudice resulted from the delay and that the delay was wholly unjustified, as where the state seeks to gain a tactical advantage over the defendant. State v. Littlejohn, 199 Conn. 631, 646, 508 A.2d 1376 (1986); State v. Haynes, 8 Conn. App. 361, 364, 513 A.2d 160 (1986).” State v. Hanna, 19 Conn. App. 277, 278, 562 A.2d 549 (1989).

The defendant claims that the presentation of her case was prejudiced by the state’s cross-examination of Lawrence Weiner, a psychiatrist. Weiner had testified that he believed that the defendant was drug-dependent at the time of the offense. During cross-examination, the state questioned the reliability of Weiner’s testimony because of the delay between the time of the offense and the time of Weiner’s psychiatric examination of the defendant. The defendant further asserts that the delay was not justified because there was no ongoing investigation from the time of the incident to the time of the filing for the arrest warrant.

We conclude that the defendant was not substantially prejudiced by the delay. At a hearing on the defendant’s motion to dismiss because of prearrest delay, Vanderheiden testified that the delay in applying for the defendant’s arrest warrant existed in order to protect ongoing investigations in the Enfield area and was not occasioned to gain any tactical advantage over the defendant. Some delay between the time of the offense and the time of a psychiatric examination for the purpose of introducing evidence at trial is natural. Any further delay occasioned by the ongoing investigation in this case did not cause the defendant substantial prejudice. Accordingly, the trial court properly denied the defendant’s motion to dismiss.

Ill

The defendant’s third claim, raised for the first time on appeal, is that the trial court’s instruction improperly permitted the jury, rather than the trial court, to determine whether the defendant had submitted some evidence of drug dependency and whether the state could rely on a presumption that she was not drug-dependent. We agree.

“While it is the general practice of this court not to review claims not distinctly raised at trial, we may, in the interests of justice, notice plain error not brought to the trial court’s attention. Practice Book § 4185; State v. Phu Dinh Le, 17 Conn. App. 339,342, 552 A.2d 448 (1989).” State v. Luca, 19 Conn. App. 668, 670, 563 A.2d 752 (1989). The error in this case caused a “manifest injustice under all the circumstances of the case”; State v. Hinckley, 198 Conn. 77, 87, 502 A.2d 388 (1985); because it affected the integrity or reliability of the jury’s verdict. See State v. Luca, supra, 671. We will, therefore, review this claim.

Our cases make clear that “[i]n a prosecution under General Statutes § 21a-278 (b), the state may initially rely on a presumption that the defendant is not drug-dependent.” State v. McNeil, 21 Conn. App. 519, 520, 574 A.2d 1314 (1990); State v. Januszewski, 182 Conn. 142, 166, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). “This presumption evaporates when the defendant introduces substantial evidence tending to prove drug dependency, and the state must then prove, beyond a reasonable doubt, that the defendant is not drug-dependent.” State v. McNeil, supra. It is for the trial court and not the jury to decide if the defendant has introduced sufficient evidence of drug dependency so as to put the burden on the state of proving nondependency. State v. Luca, supra.

In Luca, we concluded that the trial court’s instruction, allowing the jury to make the initial determination of whether the defendant had produced substantial evidence of drug dependency, was improper because it gave the jury the responsibility of making a finding that the trial court should have made as a matter of law. The jury instruction presented in this case is almost identical to the one given in Luca. Any differences between them are insignificant. The trial court’s instruction in this case, therefore, improperly permitted the jury to make the initial determination of whether the defendant had produced “sufficient evidence of drug dependency so as to place the burden on the state to prove nondependency.” State v. McNeil, supra.

IV

The defendant asserts next that the state failed to prove beyond a reasonable doubt that the defendant was not drug-dependent. Although the absence of drug dependency is not an element of the offense charged here; State v. Januszewski, supra; the state is required to prove the absence of drug dependency if the defendant has introduced sufficient evidence to show dependency. State v. Luca, supra. If the state has failed to carry its burden of proof, and the conviction is reversed for insufficiency of evidence, a second trial is precluded by double jeopardy. Burke v. United States, 437 U.S. 1, 18, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978); State v. Seravalli, 189 Conn. 201, 209, 455 A.2d 852, cert. denied, 461 U.S. 920, 103 S. Ct. 2076, 77 L. Ed. 2d 291 (1983). In reviewing a claim based on the insufficiency of evidence to prove beyond a reasonable doubt that the defendant was not drug-dependent under General Statutes § 21a-278 (b), we must determine (1) whether the defendant has introduced sufficient evidence that, assuming it was credited by the jury, would raise a reasonable doubt as'to drug dependency, and would, therefore, shift the burden of proving the absence of drug dependency to the state, and (2) if so, whether, when viewed in the light most favorable to sustaining the verdict, the trier could have reasonably concluded, on the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established drug dependency beyond a reasonable doubt. State v. Kelly, 23 Conn. App. 160, 173, 580 A.2d 520 (1990); State v. McNeil, supra, 521-23.

Applying this analysis to the facts here, we are satisfied that the defendant introduced substantial evidence of drug dependency, thus placing the burden on the state to prove the absence of drug dependency beyond a reasonable doubt. The defendant introduced several witnesses who testified regarding her drug dependency. Weiner, a psychiatrist admitted at trial as an expert witness, testified that he had conducted an examination of the defendant and found her to be drug-dependent at the time of the offense. One defense witness testified that the defendant used drugs whenever they were around and “they were around pretty near all the time.” Another defense witness testified that she saw the defendant use drugs two or three times a week. A third defense witness testified that she knew of the defendant’s drug problem and had advised her to seek treatment. The burden of proving the absence of drug dependency, therefore, shifted to the state.

The state elected not to present any direct evidence that the defendant was not drug-dependent but instead limited itself to cross-examination of the defendant’s witnesses. The state, of course, need not present its own witnesses to establish the absence of drug dependency. See State v. Evans, 203 Conn. 212, 237-38, 523 A.2d 1036 (1987). “It may instead attempt to meet its burden through cross-examination of defense witnesses by extracting evidence favorable to the state’s position.” State v. McNeil, supra, 523.

The state’s cross-examination of the defendant’s witnesses, however, went only to the witness’ credibility and no new evidence was introduced. While a jury may reject a witness’ testimony, it may not conclude from that rejection that the opposite is true. State v. Coleman, 14 Conn. App. 657, 671-76, 544 A.2d 194, cert. denied, 208 Conn. 815, 546 A.2d 283 (1988). Accordingly, the state failed to meet its burden of proof on the element of non-drug-dependency under General Statutes § 21a-278 (b). The defendant’s conviction under that section must be vacated and, because this conviction is reversed for insufficiency of evidence, a second trial on that count is precluded by double jeopardy. Burke v. United States, supra. Because the improper instruction and the lack of evidence implicate the jury’s finding only as to drug dependency, the other verdicts remain unaffected.

V

The defendant’s final claim is that her conviction and sentencing on the counts of illegal possession of a narcotic substance in violation of General Statutes § 21a-279 (a) and sale of a narcotic substance in violation of General Statutes § 21a-277 (a) violates state and federal prohibitions against double jeopardy.

“The double jeopardy clause of the fifth amendment to the United States constitution provides: ‘nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.’ Connecticut common law also secures this right. See State v. Johns, 184 Conn. 369, 373 n.6, 439 A.2d 1049 (1981). The prohibition of double jeopardy prevents not only multiple trials, but also multiple punishments for the same offense in a single trial. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).

“Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met. See State v. Frazier, 194 Conn. 233, 238, 478 A.2d 1013 (1984).” State v. Devino, 195 Conn. 70, 73-74, 485 A.2d 1302 (1985). There can be no doubt that the offenses for which the defendant was charged and convicted in this case arose out of the same act or transaction occurring on October 23,1986. We therefore turn our attention to the second step of the analysis.

“The classic test for whether offenses are the same within the meaning of the double jeopardy clause 'where the same act or transaction constitutes a violation of two distinct statutory provisions ... is whether each provision requires proof of a fact which the other does not.’ Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932); see Brown v. Ohio, [432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977)]. We apply this test with reference to the charging documents. See State v. McCall, 187 Conn. 73, 90, 444 A.2d 896 (1982); State v. Truppi, 182 Conn. 449, 468, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981).” State v. Devino, supra, 74-75.

The defendant cites State v. Amaral, 179 Conn. 239, 425 A.2d 1293 (1979), in support of her claim that double jeopardy has been violated. In Amaral, the court held that the prohibition against double jeopardy was violated where the defendant was convicted of possession, possession with intent to sell, and possession with intent to sell by a person who was not drug-dependent. Id., 243. This court has also held that the prohibition against double jeopardy is violated when the defendant was convicted of possession in violation of General Statutes § 21a-279 (a) and possession with intent to sell in violation of General Statutes § 21a-277 (a). State v. Williams, 12 Conn. App. 225,230, 530 A.2d 627 (1987). The defendant’s reliance on Amaral, however, is misplaced. The defendant in this action was not convicted of possession and possession with intent to sell but was convicted of possession and sale of a narcotic substance. “Because one may possess narcotics without selling them, a conviction for illegal sale of narcotics requires proof of a fact that a conviction for illegal possession does not. Because one may either possess narcotics legally yet sell them illegally or sell narcotics without possessing them; see State v. Brown, 163 Conn. 52, 62-63, 301 A.2d 547 (1972); a conviction for illegal possession of narcotics requires proof of a fact that a conviction for illegal sale does not. The crimes of which the defendant was convicted were different offenses and, therefore, the punishments the defendant received did not place [her] in jeopardy.” State v. Devino, supra, 75-76.

. The judgment of conviction of sale of a narcotic substance by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) is reversed and the case is remanded to the trial court with direction to render a judgment of acquittal on that charge and to resentence the defendant in accordance with her other convictions.

In this opinion the other judges concurred.

       The defendant has not briefed an argument relating to the requested bifurcation of the trial beyond a mere assertion of the claim. “ ‘Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.’ Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 250 n.3, 524 A.2d 610 (1987), quoting Hayes v. Smith, 194 Conn. 52, 66 n.12, 480 A.2d 425 (1984).” Morning Star Holding Co. v. Kostopoulos, 12 Conn. App. 593, 595, 533 A.2d 569 (1987).

       The following comparison of the relevant jury instructions, in which the italicized words were presented in this case and the parenthetical words were presented in the Luca, case, illustrates this point. “Non-drug-dependency is not an element of the offense which the state is initially required to prove. The status of being a drug-dependent person would exempt an accused person o/[from] the application of these statutes. The state has a [the] right, in the first instance, to rely on a presumption that an accused person was not a drug-dependent person at the time of the offense. If and only if you find the defendant has introduced some [substantial] evidence tending to prove her [his] drug dependence at the time of the offense, the exemption from the application of the statutes becomes an issue, and the state can no longer rely on [the] presumption of non-drug-dependency. At that point, the burden rests upon the state, based upon [all] the evidence, to prove beyond a reasonable doubt that the accused was not a drug-dependent person and therefore not entitled to the exemption provided by the statute.”
      The trial court in this case continued and instructed the jury as follows, “These are determinations for you to make to determine whether or not at the time of this incident Veronica Hart was drug-dependent at the time of the offense.” The similarities continued. “Based upon all the evidence presented, you may find, one, that the defendant did not produce any credible [substantial] evidence of drug dependency; or, two, that she [he] did produce some credible [substantial] evidence of [his] drug dependency. If you find she did produce some credible evidence of drug dependency [the latter], then you may find the state, through cross-examination proved beyond a reasonable doubt that the defendant was not drug-dependent at the time [times] of the [these four] offense[s]. And keep in mind that drug use is not necessarily drug dependence.”

       The defendant also claimed that her conviction and sentencing on the counts of sale of a narcotic substance and sale of a narcotic substance by a person who is not drug-dependent violated prohibitions against double jeopardy. The defendant’s conviction and sentencing on the count of sale of a narcotic substance by a person who is not drug-dependent must be vacated as explained above. We do not, therefore, address this claim.

       Because the defendant was convicted of the lesser included offense of sale of a narcotic substance, we need not remand with direction to render a judgment of conviction on that charge as we did in State v. McNeil, 21 Conn. App. 519, 574 A.2d 1314 (1990).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Matthew Paul March, Jr. v. Jennifer A. March
    (8597)
    Dupont, C. J., Foti and Lavery, Js.
    Argued September 12
    decision released September 19, 1990

      Edward R. Giacei, for the appellant (defendant).

      L. Gerald Carey, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Juan Bulerin
    (7969)
    Daly, O’Connell and Landau, Js.
    Argued September 12
    decision released September 20, 1990

      John T. Walkley, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Stephen J. Sedensky III, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Rocco Fratantonio
    (8720)
    Dupont, C. J., Foti and La very, Js.
    Argued September 25
    decision released September 27, 1990

      Donald Dakers, public defender, for the appellant (defendant).

      Jack W. Fischer, with whom, on the brief, were Michael Dearington, state’s attorney, and Gerard Esposito, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Gerald E. Fengler et al. v. Northwest Connecticut Homes, Inc., et al.
    (7620)
    Norcott, Foti and Landau, Js.
    Argued September 18
    decision released September 27, 1990

      Benson A. Snaider, for the appellants (defendants). Robert P. Hanahan, for the appellees (plaintiffs).
   Per Curiam.

The judgment is affirmed.


text:
    Brenner, Saltzman, Wallman and Goldman v. Henry B. Maretz, Trustee, et al.
    (8975)
    Daly, O’Connell and Lavery, Js.
    Argued September 19
    decision released September 26, 1990

      John J. Resnik, with whom, on the brief, was Emily M. Resnik, for the appellants (defendant Samuel Weiner et al.).

      Henry B. Maretz, for the appellee (named defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Angela Chiaramonte v. H.N.S. Management Company et al.
    (8719)
    Daly, O’Connell and Cretella, Js.
    Argued September 24
    decision released September 27, 1990

      Steven M. Regula, with whom, on the brief, was Anthony J. Lasala, for the appellant (plaintiff).

      Thomas E. Stevens, for the appellees (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    Mary Ellen Guinan v. Direct Marketing Association, Inc., et al.
    (8518)
    Daly, O'Connell and Lavery, Js.
    Argued September 19
    decision released September 27, 1990

      Bruce L. Levin, with whom, on the brief, was Serge G. Mihaly, for the appellants (defendants).

      Robert P. Wenten, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Paul W. Noethe v. Rosalie G. Noethe
    (8845)
    Dupont, C. J., Spallone and Foti, Js.
    Argued September 28
    decision released October 3, 1990

      Rosalie A. Griffith, pro se, the appellant (defendant).

      David J. Ordway, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Eugene Pisani v. Ralph Messore et al.
    (8803)
    Daly, O’Connell and Cretella, Js.
    Argued September 26
    decision released October 5, 1990

      Thomas F. Keyes, Jr., for the appellant (plaintiff).

      Mary Beattie Schairer, with whom, on the brief, was Charles E. Tiernan III, for the appellee (named defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Eugene Gasparri v. Board of Aldermen of the City of Waterbury
    (8622)
    Daly, O’Connell and Cretella, Js.
    Argued September 26
    decision released October 3, 1990

      Robert E. Ghent, for the appellant (plaintiff).

      Vincent J. Flynn, corporation counsel, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Nancy R. Perry v. Gregory M. Perry
    (8880)
    Spallone, O’Connell and Cretella, Js.
    Argued October 1
    decision released October 3, 1990

      Gaetano Ferro, for the appellant (defendant).

      George J. Markley, with whom was Susan S. Lewis, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Fred A. Manfredonia v. Salvatore Marottoli et al.
    (8497)
    Dupont, C. J., Foti and Lavery, Js.
    Argued September 26
    decision released October 3, 1990

      Edmund L. Pantani, for the appellants (defendants).

      Roy H. Scharf for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    George Eversman v. Joanne J. Eversman
    (8758)
    Daly, O’Connell and Landau, Js.
    Argued September 25
    decision released October 3, 1990

      Laura B. Welch, with whom were William H. Narwold and, on the brief, Karen L. Goldthwaite and Samuel V. Schoonmaker III, for the appellant (defendant).

      Robert M. Wechsler, with whom, on the brief, was Rhonna W. Rogol, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Frank X. Lo Sacco v. Sharon H. Purtill et al.
    (8999)
    Daly, Foti and Lavery, Js.
    Argued September 28
    decision released October 3, 1990

      Frank X. Lo Sacco, pro se, the appellant (defendant).

      Chester J. Bukowski, -Jr., for the appellee (named defendant et al.).

      Christopher R. Stone, for the appellee (defendant Edward Zinky).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Daryl L. Kinchen
    (7922)
    Daly, O’Connell and Landau, Js.
    Argued September 25
    decision released October 3, 1990

      Jeffrey Heilman, special public defender, for the appellant (defendant).

      RichardF. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gary W. Nicholson, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Town of Harwinton v. Torrington Water Company et al.
    (8942)
    Spallone, Norcott and Landau, Js.
    Argued October 5
    decision released October 12, 1990

      H. James Stedronsky, town attorney, with whom was Regina M. Wexler, for the appellant (plaintiff).

      Tatiana D. Sypko, assistant attorney general, with whom were Robert S. Golden, Jr., assistant attorney general, and, on the brief, ClarineNardi Riddle, attorney general, for the appellee (defendant department of public utility control).

      Andrew W. Roraback, for the appellee (defendant Torrington Water Company).
   Per Curiam.

The judgment is affirmed.


text:
    James M. Desmond et al. v. Shaun K. Sheridan et al.
    (8690)
    Spallone, Norcott and Landau, Js.
    Argued October 2
    decision released October 11, 1990

      Bruce J. Corrigan, Jr., for the appellants (defendants).

      Stephen M. Feinstein, for the appellees (plaintiffs).
   Per Curiam.

The judgment is affirmed.


text:
    Lawrence J. Grace v. Carolyn Ann Grace
    (8818)
    Daly, O’Connell and Cretella, Js.
    Argued October 4
    decision released October 12, 1990

      Andrew D. Cretella filed a brief for the appellant (plaintiff).

      Andrew P. Nemiroff filed a brief for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    In re Lisa K. et al.

    (8749)
    Dupont, C. J., Foti and Lavery, Js.
    Argued October 3
    decision released October 12, 1990

      Melissa A. Buckley, for the appellant (respondent mother).

      Paul J. Bakulski, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, attorney general, for the appellee (petitioner).

      Lynn Jenkins, for the minor children.

      In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Per Curiam.

The judgment is affirmed.


text:
    Hans Joerg Koehne et al. v. Hans Joeckel et al.
    (8838)
    Spallone, Norcott and Landau, Js.
    Submitted on briefs October 5
    decision released October 11, 1990

      Rebecca B. Lamont and JohnF. McKenna filed a brief for the appellants (defendants).

      JohnE. LeMoult filed a brief for the appellees (plaintiffs).
   Per Curiam.

The judgment is affirmed.


text:
    John MacKeil, Jr. v. Steak and Ale of Connecticut, Inc.
    (9828)
    Spallone, Norcott and Landau, Js.
    Argued October 5
    decision released October 11, 1990

      George P. DAmico, for the appellant (plaintiff).

      James P. Brennan, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Investment Bankers and Brokers, Inc. v. Theodore N. Lenczyk
    (8781)
    Spallone, Norcott and Landau, Js.
    Argued October 2
    decision released October 11, 1990

      Theodore N. Lenczyk, pro se, the appellant (defendant).

      Frank R. Borowy, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Marion Lees v. Middlesex Insurance Company
    (8919)
    Spallone, Cretella and Landau, Js.
    Argued October 3
    decision released October 12, 1990

      John T. Bochanis, with whom, on the brief, was Thomas J. Weihing, for the appellant (plaintiff).

      JohnB. Farley, with whom, on the brief, were John W. Lemega and Kateri E. Gaffney, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    In re Omondis E. et al.

    (8594)
    (8775)
    Daly, O’Connell and Cretella, Js.
    Argued October 4
    decision released October 18, 1990

      Andrew Chulick, for the appellant (respondent mother).

      MichaelR. J. O’Connor, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, attorney general, for the appellee (petitioner).

      Jackale N. Williams, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Per Curiam.

This is a consolidated appeal by the respondent mother from the trial court’s termination of her parental rights to her five minor children. We affirm the trial court’s judgment.

We have fully considered the respondent’s claims. In light of the thorough and well reasoned memorandum of decision of the trial court, Bailen, J., we find those claims to be without merit.

The judgment is affirmed.


text:
    State of Connecticut v. Vincent Edwards
    (8863)
    O’Connell, Lavery and Cretella, Js.
    Argued October 29
    decision released October 31, 1990

      Dennis O’Toole, assistant public defender, for the appellant (defendant).

      Paul J. Ferencek, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Joan Alexander, deputy assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    J. F. Barrett and Sons, Inc. v. Bernard Rosenshein
    (9084)
    O’Connell, Norcott and Landau, Js.
    Argued November 6
    decision released November 9, 1990

      Donald E. Grossfield filed a brief for the appellant (defendant).

      Richard J. Buturla, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Lavinia Jackson v. Commissioner of Income Maintenance
    (8988)
    Norcott, Lavery and Landau, Js.
    Argued November 2
    decision released November 9, 1990

      Judith Hoberman, with whom, on the brief, was Marcy Cohen, for the appellant (plaintiff).

      Judith Merrill Earl, assistant attorney general, with whom, on the brief, were ClarineNardi Riddle, attor-

      ney general, and Richard J. Lynch, assistant attorney general, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Herbert Johnson, Jr. v. City of West Haven et al.
    (9038)
    Spallone, Daly and Landau, Js.
    Argued November 1
    decision released November 8, 1990

      Kevin J. Maher, with whom, on the brief, were Colette Mauborgne and Kathleen M. Byrne, for the appellants (defendants et al.).

      HughF. Keefe, with whom, on the brief, were Mary Beattie Schairer, John J. Keefe, Charles Tiernan and Richard Lynch, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Judy A. Miron et al. v. Greg W. Vail et al.
    (8771)
    Dupont, C. J., O’Connell and Landau, Js.
    Argued November 5
    decision released November 9, 1990

      Richard D. Casella, for the appellants (plaintiffs).

      Randolph E. Richardson II, for the appellees (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    Laurence Seelen v. Ellen Seelen
    (8301)
    Daly, Norcott and Foti, Js.
    Argued November 5
    decision released November 8, 1990

      Victor Feingold, for the appellant (defendant).

      Alfred J. Garofolo, with whom was H. Dyke Spear, Jr., for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Robert Gorgoglione
    (8844)
    Spallone, Daly and Lavery, Js.
    Argued October 31
    decision released November 9, 1990

      Robert D. Gorgoglione, pro se, the appellant (defendant).

      RitaM. Shair, deputy assistant state’s attorney, with whom were Vincent J. Dooley, deputy assistant state’s attorney, and, on the brief, Mark S. Solak, state’s attorney, and Leah Hawley and Geoffrey E. Marion, assistant state’s attorneys, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Sorrento Cheese Company, Inc. v. Mario A. Silvestri et al. Sorrento Cheese Company, Inc. v. Anne V. Silvestri, Executrix (Estate of Mario A. Silvestri)
    (8753)
    Spallone, Daly and Landau, Js.
    Argued November 1
    decision released November 9, 1990

      Helen L. McGonigle, for the appellant (plaintiff).

      Edward J. Gallagher, for the appellees (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Luis A. Rodriquez
    (8930)
    Spall one, La very and Cretella, Js.
    Argued October 30
    decision released November 8, 1990

      Thomas M. Conroy, special public defender, for the appellant (defendant).

      James M. Ralls, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael Pepper, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Richard K. Klaus v. Metcalfe Glass Company, Inc.
    (8747)
    Daly, O’Connell and Cretella, Js.
    Argued November 9
    decision released November 14, 1990

      Timothy Brignole, with whom was Michael E. Grossmann, for the appellant (named plaintiff).

      Robert C. Danaher, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Michael Petosa v. Jacqueline J. Slamon
    (8778)
    Daly, O’Connell and Cretella, Js.
    Argued November 9
    decision released November 14, 1990

      Michael A. Peck, with whom, on the brief, was Robert Shluger, for the appellant (plaintiff).

      Helen R. Kone, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Fillippo Lombardo
    (8595)
    O’Connell, Foti and Landau, Js.
    Argued November 8
    decision released November 21, 1990

      Susan V. Tirrell, certified legal intern, with whom was A. Paul Spinella, for the appellant (defendant).

      Mary Lesser, assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and John Whalen, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals from his conviction, after a trial to the court, of possession of cocaine with intent to sell in violation of General Statutes § 21a-277 (a).

Much of the state’s evidence was disputed, but it is axiomatic that this court cannot retry the facts or pass on the credibility of witnesses. State v. Speers, 17 Conn. App. 587, 592, 554 A.2d 769, cert. denied, 211 Conn. 808, 559 A.2d 1142, cert. denied, 493 U.S. 851,110 S. Ct. 150, 107 L. Ed. 2d 108, 493 U.S. 893, 110 S. Ct. 241, 107 L. Ed. 2d 192 (1989). The defendant raises five claims on appeal that attack either the court’s factual findings or its exercise of discretion. Our review of the record discloses that the evidence was sufficient to support the court’s factual finding. The defendant has failed to demonstrate that the trial court’s factual findings were clearly erroneous or that its decision was otherwise erroneous in law. Practice Book § 4061; see U.S. Fidelity & Guaranty Co. v. K. J. Enterprises, Inc., 19 Conn. App. 806, 563 A.2d 1386 (1989).

The judgment is affirmed.


text:
    Linda Palermo v. Town of Stratford et al.
    (8356)
    Daly, O’Connell and Cretella, Js.
    Argued September 26
    decision released November 21, 1990

      Linda Palermo, the appellant (plaintiff), pro se.

      Alfred J. Onorato, for the appellees (named defendant et al.).
   Per Curiam.

The judgment is affirmed.


text:
    The Banking Center v. Martin L. Hammer et al.
    (8704)
    Daly, Foti and Cretella, Js.
    Argued December 4
    decision released December 6, 1990

      Geraldine Ficarra, for the appellant (defendant Ronnie Hammer).

      Mary Piscatelli Brigham, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Irwin Hutt v. Turnpike Realty of Watertown, Inc., et al.
    (8804)
    Daly, Norcott and Landau, Js.
    Argued December 4
    decision released December 12, 1990

      Earl M. Temchin, for the appellant (plaintiff).

      Thomas J. Sansone, for the appellee (named defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Elizabeth G. Alexander v. Kyle Alexander
    (8946)
    Spallone, O’Connell and Cretella, Js.
    Argued December 5
    decision released December 12, 1990

      Kimberly A. Knox, with whom was Alexandra Davis and, on the brief, Susan M. Cormier, for the appellant (plaintiff).

      Peter L. Truebner, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Willie D. Owens v. Ronald Bray
    (9089)
    Spallone, O’Connell and Cretella, Js.
    Argued December 5
    decision released December 12, 1990

      Warren P. Joblin, for the appellant (defendant).

      Eric L. Reinken, with whom, on the brief, was Bruce D. Koffsky, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Ruth Dorsett v. General Dynamics Corporation
    (9182)
    Spallone, Daly and Heiman, Js.
    Argued December 13
    decision released December 19, 1990

      John W. Greiner, for the appellant (defendant).

      Robert M. Fitzgerald, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Roseville Estates, Inc., et al. v. Board of Tax Review of the Town of Westport Kowalsky Properties, Inc. v. Board of Tax Review of the Town of Westport
    (8557)
    (8558)
    Foti, Cretella and Landau, Js.
    Argued November 6, 1990
    decision released January 2, 1991

      Randy Lynn Cohen, for the appellants (plaintiffs).

      Michael S. Lynch, with whom, on the brief, were Susan M. Wood and Keith Dunnigan, for the appellee (defendant).
   Per Curiam.

The plaintiffs appeal from the judgments of the trial court dismissing their appeals from the defendant’s refusal to reduce the assessor’s valuation of property owned individually by each plaintiff. The trial court found that the plaintiffs had failed to sustain their burden of proving that the property had been overvalued and dismissed their appeal.

The plaintiffs challenge the trial court’s acceptance of the defendant’s methodology for calculating property values. In essence, the plaintiffs challenge the trial court’s factual findings and its determinations regarding the credibility of witnesses. On appeal, it is the function of this court to determine whether the factual findings of the trial court are clearly erroneous. See Practice Book § 4061. “[WJhere the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). “The credibility of ‘expert witnesses and the weight to be accorded to their testimony are within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible.’ New Haven Water Co. v. Board of Tax Review, 166 Conn. 232, 240, 348 A.2d 641 (1974).” Ferri v. Pyramid Construction Co., 186 Conn. 682, 690, 443 A.2d 478 (1982).

A review of the record indicates that the evidence supports the trial court’s thoughtful and reflective memorandum of decision.

The judgments are affirmed.

       Because both cases involve the same principals of both plaintiff corporations, because the same appraiser testified in both cases using the same methodology, and because the defendant used the same assessment technique for all of the properties involved, the trial court rendered one memorandum of decision for both cases. The plaintiffs appeal separately from this decision and the resulting judgments.


author: Daly, J.

text:
    Frank Fonck, Jr., et al. v. Town of Stratford et al.
    (9049)
    Daly, Cketella and Landau, Js.
    Argued December 6, 1990
    decision released January 22, 1991

      Laurence V. Parnoff, for the appellants (plaintiffs).

      George W. Boath, Jr., special assistant town attorney, with whom, on the brief, was Richard P. Gilardi, assistant town attorney, for the appellees (defendants).
   Daly, J.

The plaintiffs appeal from the trial court’s judgment for the defendants. They claim that the trial court failed (1) to give a Secondino charge regarding one of the defendants, Thomas Knowles, (2) to allow the introduction of depositions into evidence, and (3) to give a cautionary instruction concerning an improper closing argument made by the defendants’ counsel. We agree with the plaintiffs’ third claim and therefore reverse. Because our decision regarding the third claim is dispositive of the case and the other two claims may not arise again in a new trial; see State v. Plourde, 208 Conn. 455, 457 n.2, 545 A.2d 1071 (1988), cert. denied, 488 U.S. 1034, 109 S. Ct. 847, 102 L. Ed. 2d 979 (1989); we will not address them.

Briefly, the evidence presented to the jury could have led to the following factual findings. On July 14,1983, the named plaintiff was nine years old and a registered enrollee of the summer recreation program at High Park, located in Stratford. While watching a baseball game at High Park that day, he was struck in the eye by a baseball and severely injured.

In a six-count complaint, the plaintiffs alleged negligence, negligent supervision and nuisance against the defendants. From a jury verdict rendered in favor of the defendants, the plaintiffs appeal.

During the closing argument of the defendants’ counsel, the plaintiffs objected to the following comments: “But here’s the problem. If juries start awarding verdicts against coaches, against schools or against towns that have the fields, there’s no question that you’re not going to have any injuries, but you’re not going to have sports or competitive sports.” The court overruled the plaintiffs’ objections and refused to render a curative instruction despite the plaintiffs’ request both at the time of his objection and, later, at the end of the court’s charge to the jury. The court responded to the latter request for a curative instruction by stating that it relied on its charge as rendered.

“A well established rule is that a statement by counsel, not under oath, of a material fact pertinent to the issues unsupported by evidence, and prejudicial to the opposing party, constitutes reversible error unless it appears that the prejudicial effect has been effectively averted by an instruction to disregard the statement, or otherwise. . . . It is the duty of [this court] to weigh the probable effect of the statement upon the issues of the case, then look to the action of the trial court in dealing with it, and if it is reasonably clear that the effect has not been eliminated, reversal is required.” (Citations omitted.) State v. Santello, 120 Conn. 486, 490-91, 181 A.2d 335 (1935).

Counsel may not comment on or suggest inferences from facts not in evidence. State v. Huff, 10 Conn. App. 330, 341, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987). Here, defense counsel introduced or suggested for consideration the financial burdens that towns like Stratford suffer from personal injury suits. Counsel also suggested that the jurors’ decision could adversely impact town parks and recreation programs. In doing so, he appealed to not only whatever civic sympathies they might harbor but also their self-interest as taxpayers and patrons of parks and recreation programs. This form of argument was highly improper and clearly inappropriate. See, e.g., Atchison v. Lewis, 131 Conn. 218, 223, 38 A.2d 673 (1944); Frohlich v. New Haven, 116 Conn. 74, 76-78, 163 A. 463 (1932).

Where, as here, counsel’s comments to the jury were clearly improper and prejudicial, the impact of the improper arguments can usually be nullified by the court’s curative instruction. See Spiess v. Traversa, 172 Conn. 525, 528, 375 A.2d 1007 (1977) (although inferences to the plaintiff’s poverty, large family and mentally impaired child approached unfair prejudice, the court’s curative instruction remedied any that could have resulted); Bryar v. Wilson, 152 Conn. 162, 164-65, 204 A.2d 831 (1964) (court’s curative instructions were effective in overcoming any prejudice induced by counsel’s improper arguments). Despite the plaintiff’s request both at the time of his objection and after the court completed its charge, no curative instruction ever addressed the defense counsel’s improper comments. Without such instruction, it is reasonable to conclude that the prejudicial effect was not eliminated. The court’s general instructions; see footnote 4, supra; failed to provide a sufficiently potent cure for the harm caused here. Furthermore, by overruling the plaintiff’s objection and by refusing to grant a curative instruction at the time when the prejudicial comments had just been made, the court may have inadvertently added weight to the defendants’ improper arguments, seemingly approved their purpose and thus increased their effect. Bryar v. Wilson, supra, 163-64.

The trial court is invested with a large measure of discretion regarding arguments of counsel. Bryar v. Wilson, supra; State v. Huff, supra. The court’s failure to address these improper comments in any effective fashion overstepped the bounds of that discretion. Our review of the record leads us to conclude that the attempt by the defendants’ counsel improperly to prejudice the jurors minds so tainted the verdict as to warrant a new trial for the plaintiff. Cf. Bryar v. Wilson, supra.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       This action was instituted on behalf of the minor plaintiff, Frank Fonck, Jr., by his father, Frank Fonck, Sr., who also claimed to have incurred expenses.

       Under the rule of Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960), a party is entitled to an adverse inference instruction regarding an opponent’s missing witness provided that the party requesting the instruction first presents evidence that the missing witness is available to testify and is a witness whom the opposing party would naturally produce.

       The other defendants in this action are Thomas Knowles, director of the Stratford recreation department, Gregory Dobosz, supervisor of Stratford recreation counselors, and Edward Yoemans, superintendent of Stratford parks.

       The court instructed the jurors in the following excerpts, which we cannot say properly addressed defense counsel’s improper comments:
      “[Wjhat I may say concerning the facts in this case or what the lawyers have said about the facts are in no way binding on you .... [Djo not consider anything but the evidence that you heard in this case, how this accident happened. . . . [Ojnly the evidence, no guesswork, no other influence should be on your decision except what you heard from the witnesses and what you derive from the verdicts.”


author: O’Connell, J.

text:
    Robert Cioffoletti et al. v. Planning and Zoning Commission of the Town of Ridgefield et al.
    (9109)
    Spallone, O’Connell and Foti, Js.

      Argued October 30, 1990
    decision released January 22, 1991

      Thomas W. Beecher, for the appellant (named defendant).

      Melvin J. Silverman, for the appellees (plaintiffs).
   O’Connell, J.

The defendant Ridgefield planning and zoning commission appeals from the trial court’s decision holding § 306.0.H. of the town’s zoning regulations illegal as applied to the plaintiffs’ property. The central question is whether this regulation unlawfully interferes with the continued operation of the plaintiffs’ sand and gravel excavation business as a nonconforming use. We affirm the trial court’s judgment.

The following facts are necessary to resolve this appeal. The plaintiffs own property on which they conduct a commercial sand and gravel removal operation as a valid nonconforming use. The defendant amended its zoning regulations by adopting § 306 which provides, inter alia, for the regulation of sand and gravel operations. The regulation requires that a special permit be obtained to conduct these activities. This appeal focuses on § 306.O.H. which provides: “(1) The Commission may specify the overall time period within which the excavation, tilling or other regrading shall be completed but in no event shall that time period exceed two years. (2) The Commission may grant an extension of time within which to complete the proposed project upon a showing by the applicant of good cause and subject to the considerations and conditions set forth in paragraphs F and G but in no event shall more than one extension of time be granted, and if an extension is granted, the time period of the extension shall not exceed the duration of the original permit. ” (Emphasis added.)

The trial court held that § 306.0.H. was illegal because it was an attempt to prohibit the plaintiffs from continuing their established nonconforming use. We agree.

The plaintiffs argue that the effect of the regulation is to terminate their nonconforming use at the end of four years when their second possible two year permit would expire. The defendant responds that the plaintiffs’ action is premature because they cannot complain at this time that the regulation, if applied to them four years from now, would be an unlawful restriction of a nonconforming use. The defendant contends that an appealable issue does not exist until the plaintiffs are actually denied a permit upon reapplication at the end of four years. The defendant argues that it is mere speculation that the ordinance might possibly be applied in the future impermissibly to terminate the plaintiffs’ nonconforming use. We do not agree.

The regulation expressly limits the defendant’s authority to grant a permit extending the period of use beyond four years from its commencement. A plain reading of the regulation discloses that at the end of four years the defendant would have no authority to grant the plaintiffs a permit to continue their nonconforming use. It is appropriate to review the plaintiffs’ challenge to the regulation now rather than putting it off four years, when the unavoidable delays involved in administrative and judicial proceedings might jeopardize the uninterrupted operation of their business.

If we assume, arguendo, that the defendant has the authority to regulate sand and gravel removal and if otherwise proper, the regulation in question is a lawful mechanism to control any such business started after the effective date of the regulation. It is a fundamental zoning precept in Connecticut, however, that zoning regulations cannot bar uses that existed when the regulations were adopted. Beckish v. Planning & Zoning Commission, 162 Conn. 11, 16, 291 A.2d 208 (1971). This restriction is expressly imposed on planning and zoning commissions by General Statutes § 8-2 which dictates that “[s]uch regulations shall not prohibit the continuance of any nonconforming use . . . existing at the time of the adoption of such regulation. . . .” It is readily apparent that “the rule concerning the continuance of a nonconforming use protects the ‘right’ of a user to continue the same use of the property as it existed before the date of the adoption of the zoning regulations.” Helbig v. Zoning Commission, 185 Conn. 294, 306, 440 A.2d 940 (1981).

Teuscher v. Zoning Board of Appeals, 154 Conn. 650, 228 A.2d 518 (1967), heavily relied on by the defendant, is inapposite to the present case. The Teuscher court held that a regulation nearly identical to the one in the present case was a valid exercise of a municipality’s police power, a subject not at issue here. The zoning board of appeals in Teuscher specifically found that the gravel operation was not a nonconforming use. Additionally, the Teuscker court enunciated that “[wjhether the gravel pit was or was not a nonconforming use was not controlling . . . .’’Id., 657. Furthermore, the Teuscher regulation was adopted in 1953 prior to the 1959 amendment to General Statutes § 8-2 which precludes zoning regulations from prohibiting nonconforming uses.

The court properly held that § 306.0.H. is illegal as applied to the plaintiffs’ property because it attempts to prohibit an established nonconforming use. This issue is dispositive of this appeal, and, therefore, we need not address the claims raised in the plaintiffs’ counter statement of the issues.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are the Ridgefield planning and zoning commission, the commission chairman, and the Ridgefield town clerk. They will be referred to in this opinion as the defendant.

       By then, of course, the time to appeal from the enactment of the zoning regulation would have expired and the plaintiffs’ recourse would be an injunction or an appeal from the denial of a permit renewal or an appeal from the zoning board of appeals after it sustained a stop and desist order of the zoning enforcement officer.


author: Foti, J.

text:
    Clara Giardini et al. v. Supermarkets General Corporation
    (8924)
    Dupont, C. J., Daly and Foti, Js.
    Argued October 29, 1990
    decision released January 22, 1991

      Frederick J. Trotta, with whom, on the brief, were Eileen M. Condon and Joseph F. Trotta, for the appellants (plaintiffs).

      Jack G. Steigelfest, with whom, on the brief, were John Stephen Papa and Constance L. Epstein, for the appellee (defendant).
   Foti, J.

The plaintiff appeals from the judgment rendered, after a jury trial, for the defendant and claims that the court acted improperly in instructing the jury and in denying her motion in limine. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On September 19, 1988, the plaintiff was shopping at the defendant’s Pathmark Supermarket in East Haven when she slipped and fell on some loose grapes thereby injuring her hip and shoulder.

The plaintiff alleged negligence and prayed for damages in her complaint. The defendant denied the plaintiff’s allegations in its answer and asserted contributory negligence as a special defense. The plaintiff subsequently denied this assertion. Neither party requested special interrogatories, and the jury returned a general verdict in favor of the defendant. The plaintiff has raised no issue in this appeal that relates to the defendant’s special defense of contributory negligence.

The plaintiff challenges two of the court’s jury instructions on the issue of notice. The plaintiff is not entitled to review of this claim because of the general verdict rule.

The general verdict rule provides: “[I]f a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party.” Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202, 520 A.2d 208 (1987); Palmieri v. Intermagnetics General Corporation, 17 Conn. App. 488, 489, 553 A.2d 1167 (1989). “ ‘The rule applies whenever a verdict for one party could reasonably be rendered on one or more distinct causes of action ... or distinct defenses.’ (Citation omitted; emphasis omitted.) Palmieri v. Intermagnetics General Corporation, supra, 489-90.” Ricciardi v. Burns, 21 Conn. App. 516, 517, 574 A.2d 260 (1990).

A defendant’s denial of negligence and an allegation of contributory negligence as a special defense constitute separate and distinct defenses, either of which can support the jury’s general verdict. Stone v. Bastarache, 188 Conn. 201, 205, 449 A.2d 142 (1982); cf. Hall v. Burns, 213 Conn. 446, 484 n.9, 569 A.2d 10 (1990). The general verdict rule clearly applies in this case. We cannot determine whether the jury resolved the case on the basis of the plaintiff’s failure to prove that the defendant was negligent or the special defense of contributory negligence. Ricciardi v. Burns, supra, 518. If the court’s instructions are proper and adequate as to any one of the defenses raised, the general verdict will stand regardless of any alleged error in the charge as to the defendant’s negligence. LaFleur v. Farming-ton River Power Co., 187 Conn. 339, 343, 445 A.2d 924 (1982). Because of the general verdict rule, the plaintiff would have to prevail on challenges to each of the bases on which the jury could have resolved the case. Id. On appeal, the plaintiff has made no claim relating to the defendant’s special defense of contributory negligence.

Because the general verdict rule requires us to presume that the jury found for the defendant on its special defense of contributory negligence, we will not consider the plaintiff’s claims of error regarding alleged errors in the instructions given or not given on notice.

The plaintiff’s second claim is that the trial court abused its discretion in denying her motion in limine, in which she sought in part to exclude the testimony of employees of the supermarket whose names were not timely disclosed. Even if we assume arguendo that the late disclosure claim is justified, the plaintiff failed to request a continuance. “A continuance is ordinarily the proper method for dealing with a late disclosure. State v. Villafane, 171 Conn. 644, 669, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977) . . . .” (Citations omitted.) State v. Barrett, 205 Conn. 437, 455, 534 A.2d 219 (1987). “A continuance serves to minimize the possibly prejudicial effect of a late disclosure and absent such a request by the party claiming to have been thus prejudiced, appellate review of a late disclosure claim is not warranted. Kevin Roche-John Dinkeloo & Associates v. New Haven, 205 Conn. 741, 748, 535 A.2d 1287 (1988); State v. Miner, 197 Conn. 298, 305-306, 497 A.2d 382 (1985).” Rullo v. General Motors Corporation, 208 Conn. 74, 79, 543 A.2d 279 (1988).

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs are Clara Giardini, who alleged personal injuries as a result of a slip and fall, and Luigi Giardini, who claimed deprivation of companionship, services and affection of his wife. For purposes of this appeal, we will refer to Clara Giardini as the plaintiff.

       One of the plaintiff’s challenges to the trial court’s jury instructions is that the court limited the issue of notice to constructive notice. The court indicated that the parties had agreed that the defendant had not received actual notice and stated “so we are dealing with what we call a case of constructive notice.” The plaintiff argues on appeal that the court should not have taken the issue of actual notice away from the jury.
      The plaintiff, however, did not file a request to charge as to the issue of actual notice, and she agreed that no evidence of actual notice had been presented at trial. This argument is illustrated in the following colloquy:
      “[Plaintiff’s Counsel]: Also on the issue of notice, Your Honor, the court indicated that and counsel agrees there was no actual notice. Plaintiff’s counsel would agree that we could not prove actual notice but whether it was or not, I don’t know, there very well may have been. The case hinges on constructive notice, however, I do not agree that there was, in fact, no actual notice. My agreement is that it was not proven in the courthouse.
      “The Court: You think that’s a distinction without a difference, Mr. Trotta?
      “[Plaintiff’s Counsel]: I think there’s a difference.”

       The plaintiff’s counsel alleges that the defendant’s counsel spoke to a juror or jurors after the verdict and determined that “the jury did not get past the notice issue.” The record is devoid of any polling of the jury or comments by any members of the jury. We will not consider matters outside the record.


author: Cretella, J.

text:
    State of Connecticut v. William H. Bethea
    (8607)
    Spallone, Cretella and Landau, Js.

      Argued October 3, 1990
    decision released January 22, 1991

      William A. Collier, special public defender, for the appellant (defendant).

      James M. Ralls, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, James G. Clark, assistant state’s attorney, and Ted Diamant, legal intern, for the appellee (state).
   Cretella, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of attempted sexual assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-70, kidnapping in the first degree in violation of General Statutes § 53a-92, and assault in the second degree in violation of General Statutes § 53a-60. He claims that the trial court (1) should not have admitted the victim’s recorded and unrecorded statements to the police as evidence under the constancy of accusation exception to the hearsay rule, (2) should have allowed new counsel to be appointed after a breakdown of communications between the defendant and his court-appointed public defender, and (3) should have ordered a presentencing psychiatric evaluation under General Statutes § 17-244. We reject these claims and affirm the trial court’s judgment.

The principal witnesses called by the state were the victim, Detective John Flynn, and Officers Patrick Red-ding and Michael Quinn of the New Haven police department. The victim testified that the defendant abducted her while she was walking to an all night convenience store in New Haven. She testified that the defendant pulled along side her in his automobile, jumped out, and, while holding a knife to her throat, started “talking about some sex.” He then grabbed her by the hair, forced her into his car and sped away. Once the car was in motion, he again threatened her with the knife. When he later stopped the car, the victim escaped from the vehicle. The defendant then chased and caught her, threatened her with the knife again, kicked her in the face, and, while jabbing her with the knife, forced her back into the car. He pulled her coat, sweater and bra over her head and continually told her that he wanted sex.

The police arrived after having been called by an onlooker. As the police approached, the victim jumped out of the car and ran away. The police officers found her bloodied and yelling for help. The defendant, who had run from the car, was chased and apprehended and the victim identified him as her attacker. Quinn asked the victim to tell him her version of the events at the scene. Later, at the police station, Flynn tape-recorded additional statements made both by this victim and by a victim of a separate attack by the defendant. See footnote 1, supra. A transcript was made of these taped statements and signed by each victim.

At trial, the defendant testified that he had picked up the victim of the incident in question at her request. He asserted that once she was in his car she asked him for money, and he gave it to her indicating that he wanted sexual favors in return. He further testified that she took the money and exited the car without keeping her end of the bargain and that this was when he ran after her.

Quinn testified about his interview with the victim at the scene and, over the defendant’s objections, was permitted to repeat the victim’s account of the events. The court allowed this testimony under the constancy of accusation doctrine.

When Flynn took the stand to testify, the prosecutor proposed that the tape recorded statements of the victims would also be offered under the constancy of accusation doctrine. After extensive discussion and objection by the defendant, the court ruled, in the absence of the jury, that because Flynn was available for cross-examination the tapes could be played for the jury.

The defendant first claims that the court improperly admitted the recorded and unrecorded statements under the constancy of accusation exception to the hearsay rule. He asserts that the constancy of accusation exception is not a true hearsay exception, that it lacks the safeguards ensuring that only trustworthy and reliable evidence be admitted, and that this exception was an improper basis for the admission of the victims’ tape recorded statements.

Long standing precedent set by our Supreme Court demands that the following criteria be met before a witness can testify under what has consistently been labeled the constancy of accusation exception to the hearsay rule: (1) the court must balance the probative force of the testimony against its prejudicial effect; (2) the crime charged must be sex related; (3) the witness must be one to whom the victim complained about the offense; (4) the accusation must have been made at a time when it was natural for the victim to have made it; and (5) the victim must first testify, in court, as to the facts of the alleged occurrence. State v. Dabkowski, 199 Conn. 193, 199, 506 A.2d 118 (1986). Once the witness takes the stand, (1) the court may presume that the victim has been impeached by a suggestion of recent contrivance; State v. Ouellette, 190 Conn. 84, 98, 459 A.2d 1005 (1983); (2) the witness may testify as to the fact that the victim complained to her as well as to the details of the victim’s complaint, and (3) the court must give limiting instructions to explain that the evidence is not offered to prove the truth of the matter asserted but only to corroborate and accredit the prior testimony of the victim. State v. Dabkowski, supra; see also State v. Hamer, 188 Conn. 562, 564, 452 A.2d 313 (1982); State v. Segerberg, 131 Conn. 546, 549, 41 A.2d 101 (1945).

The defendant points out that in State v. Ouellette, supra, 98-99, our Supreme Court held that constancy of accusation is actually a subcategory of prior consistent statement evidence, and argues that if the witness’ testimony is analyzed strictly as prior consistent evidence testimony, (1) it should not be considered as hearsay at all, but as nonhearsay, (2) it should not be classified as an exception to the rule against hearsay, and (3) the court should not permit details of the event to be relayed to the jury by this witness. To remedy his confusion with the existing precedent in this state, the defendant suggests that we overturn years of Supreme Court precedent and hold that the constancy of accusation exception is outdated and invalid.

The constancy of accusation doctrine has its origins in common law. Since 1876, statements admitted under the constancy of accusation theory have been labeled by Connecticut courts as exceptions to the hearsay rule, and admitted only “as corroborative evidence to strengthen the credit of the principal witness by showing constancy in her declarations.” State v. Kinney, 44 Conn. 153, 154 (1876); State v. Sebastian, 81 Conn. 1, 5, 69 A. 1054 (1908).

In the following, more recent cases, the Connecticut Supreme Court has continued to analyze constancy of accusation testimony as admissible as an exception to the hearsay rule: State v. Rodgers, 207 Conn. 646, 649, 542 A.2d 1136 (1988); State v. Dabkowski, supra; State v. Gelinas, 160 Conn. 366, 367, 279 A.2d 552 (1971); State v. Purvis, 157 Conn. 198, 207, 251 A.2d 178 (1968), cert. denied, 395 U.S. 928, 89 S. Ct. 1788, 23 L. Ed. 2d 246 (1969).

In short, the Supreme Court has consciously created a hybrid rule of law to assist victims of sexual assault who are at first hesitant to report sex related crimes and are apt to confide the details of the crime to friends, relatives, or the police. The Supreme Court is satisfied that this doctrine, rather than disadvantaging the defendant, supplies a fertile field for cross-examination of the victim and assists the factfinder in ascertaining where the truth lies. See State v. Pollitt, 205 Conn. 61, 76-78, 530 A.2d 155 (1987).

While the rule of law created over the past 120 years defies standard categorization, it remains consistent from case to case. Attempts to modify or restructure the rule in any way have been repeatedly rejected by both the Supreme Court and this court. Cf. State v. Rodgers, supra (defendant requested that doctor not be permitted to testify as to corroborating evidence because victim was unconscious when assaulted); State v. Pollitt, supra (defendant claimed that the additional witness’ testimony was used solely to “inflame the jury” and thus constituted a misuse of the doctrine); State v. Dabkowski, supra, 197-99 (defendant asked that precedent be overruled in light of the breadth of the constancy of accusation exception and contemporary development in law and psychiatry); State v. Velez, 17 Conn. App. 186, 551 A.2d 421 (1988), cert. denied, 210 Conn. 810, 556 A.2d 610, cert. denied, 491 U.S. 906, 109 S. Ct. 3190, 105 L. Ed. 2d 698 (1989) (defendant argued that constancy of accusation testimony should not have been considered because it was inconsistent with victim’s testimony in all aspects); State v. Saraceno, 15 Conn. App. 222, 545 A.2d 1116, cert. denied, 209 Conn. 823, 824, 552 A.2d 431, 432 (1988) (defendant urged this court to modify the constancy of accusation doctrine).

In light of the above, we decline the defendant’s invitation to overturn the constancy of accusation exception to the hearsay rule and we conclude that the officer’s testimony was properly admitted under this doctrine. This does not conclude our inquiry, however. We must now address the defendant’s additional assertions that the court improperly admitted the tape recordings while Flynn was on the stand, and that the court’s limiting instructions to the jury were inadequate.

Whenever a witness in any type of court proceeding is permitted to testify under any accepted legal theory as to statements that were either made to the witness or overheard by the witness, the trier of fact must determine how accurate the witness’ testimony is, and whether the witness accurately and credibly related what was told to or overheard by the witness. After testifying, the witness is available for cross-examination to test the accuracy of the witness’ recollections. In the present matter, the state has attempted to forestall any possible inaccuracies, lapse of memory, or misstatements by Flynn as to what was said to him by the victim. There could be no better evidence as to what the victim told Flynn than a tape recorded statement in the victim’s own words and voice as to the events that she described to him.

The defendant also argues that the admission of the tape was prejudicial and inflamatory. We are not persuaded. The defendant had full opportunity to cross-examine both the victim and Flynn. We conclude that the trial court struck a proper balance among all of the competing considerations with which it was faced, and that the tape recorded statement of the victim was properly admitted into evidence. See State v. Pollitt, supra, 74-75; State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

As noted above, the defendant also argues that the court did not properly instruct the jury as to the limited purpose for which the challenged testimony could be used. We disagree. The defendant was charged with two separate informations, each one involving a different victim. The state had each of the victim’s tapes played for the jury. The court heard and ruled upon the objections of the defendant in the absence of the jury. After the jury was brought in, the state followed the usual procedure of having each of the tapes admitted. The defendant’s objection to the playing of the tapes was made again in the presence of the jury and the court again overruled the objection. The jurors were then briefly advised by the court prior to the playing of the first tape, that of the victim of the incident not in issue here, as to the theory of constancy of accusation, and they were informed that the tape “is offered to corroborate the testimony of the victim given here in court. I will give you further instructions on how you consider this, but it is basically to see whether or not it corroborates, it supports, it is consistent with the testimony that [the other victim] gave you in court when she testified yesterday.”

Although this similar brief limitation on the use of the tape was not repeated prior to the playing of the second tape, that of the victim of the incident in question, the record clearly establishes that there could be no confusion in the minds of the jury as to the nature and purpose of the second tape.

In addition, in its final jury instructions, the court gave complete and proper limiting instructions as to the purpose of the taped statements advising the jury that they had not been offered to prove the truth of the matters asserted therein, but simply to corroborate and to accredit the testimony of the victims who had previously testified. We conclude, therefore, that the defendant’s claim is without merit.

The defendant’s next claim is that it was improper for the court to refuse to allow counsel to withdraw on the basis of a breakdown of communications and cooperation between the defendant and his court-appointed public defender.

The transcript of the court proceedings clearly establishes that on numerous occasions the defendant attempted to disrupt the trial by utilizing such tactics as walking from the courtroom into the holding room, refusing to obey instructions of the court, refusing to engage in any meaningful dialogue with the court when the court attempted to address his objections, refusing to take an oath properly when he indicated that he wanted to testify in his own behalf, refusing to leave the holding cell in order to be present during the trial, and trying the judge’s patience almost to the breaking point. The transcript further reveals that the trial court did its very best to protect the rights of the defendant including initiating a very complete dialogue about the defendant’s request to represent himself, and cautioned the defendant as to the dangers of self-representation including the responsibilities that the defendant would be undertaking. Ultimately, the defendant stated that he did not want to defend himself even though he did assert that he was not satisfied with the defense that his court-appointed counsel was providing for him.

It is within the discretion of the trial court to decide whether the circumstances that occur during a particular trial warrant the appointment of a new counsel. State v. Gonzalez, 205 Conn. 673, 683, 535 A.2d 345 (1987). If supported by a substantial reason the request for substitution of counsel should be granted. State v. Drakeford, 202 Conn. 75, 83, 519 A.2d 1194 (1987). The right of an accused to counsel may not, however, be manipulated so as to obstruct the orderly procedure in courts. See State v. Crenshaw, 210 Conn. 304, 314, 554 A.2d 1074 (1989); State v. Morico, 14 Conn. App. 140, 143-44, 539 A.2d 1033, cert. denied, 208 Conn. 812, 546 A.2d 281 (1988); State v. High, 12 Conn. App. 685, 690, 533 A.2d 1217 (1987). We conclude that the defendant has not met the substantial burden of showing that the court abused its discretion in failing to relieve counsel. “ ‘A defendant is not “entitled to demand a reassignment counsel simply on the basis of a ‘breakdown in communication’ which he himself induced.” ’ ” State v. Gonzalez, supra, 684. The record before us clearly establishes that the defendant alone was responsible for any lack of communication.

The defendant’s final claim is that the court should have granted the defendant’s motion for a presentence psychiatric evaluation pursuant to General Statutes § 17-244. Under that statute a court may order a psychiatric evaluation of a defendant only if “it appears to the court that such person is mentally ill and dangerous to himself or others.” It is within the discretion of the trial court to order such an examination and in the absence of a clear showing by the defendant that the trial court has abused its discretion, we will not find that the court improperly denied the psychiatric examination. See State v. Gates, 198 Conn. 397, 403, 503 A.2d 163 (1986).

The record reveals that the court’s observation at trial was that the defendant was not mentally ill and found that there was no apparent need to order the readministration of his psychiatric medication by prison officials. The observations and finding of the trial court must be accorded great weight. The court had ample first hand knowledge of the defendant on which to make an informed judgment and its denial of the motion for a psychiatric examination was not an abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was acquitted of a sexual assault charge that was the subject of a separate information stemming from an incident involving another victim. The informations were consolidated for trial and resulted in separate judgments. This appeal involves only the judgment of conviction.

       As a preliminary matter, we note that the state argues that we should not review the issue of the admission of the tape into evidence because although the defendant objected to constancy of accusation testimony in general, he never submitted proposed jury instructions to limit the admission of this evidence for corroborative purposes, or objected to the court’s instruction as to the limited purpose for which the tape was introduced. We reject this argument. The record reveals that when the defendant objected to the admission of this evidence under the constancy of accusation doctrine, the trial court overruled the objection and indicated that the doctrine was widely accepted. The court then asked the defendant if he had a separate objection as to the admissibility of the tape itself. The defendant replied, “My objection is essentially the same.” We consider this statement to have adequately preserved the defendant’s right to have this court review the doctrine of constancy of accusation including the subissues of whether this matter involves a hearsay exception or corroboration of a prior statement of the victim.

       In State v. Kinney, 44 Conn. 153, 154, 26 A.R. 436 (1876), the Supreme Court stated that “[t]he evidence objected to is open to all the objections that apply to hearsay testimony.” To support this proposition the court cited two treatises, five English common law cases, and cases from New Jersey, Georgia, Texas and Alabama.


text:
    Todd Lavigne v. Warden, State Prison
    (9015)
    Dupont, C. J., Foti and Landau, Js.
    Argued December 5, 1990
    decision released January 29, 1991

      Louis S. Avitabile, special public defender, with whom, on the brief, was Denise Dishongh, for the appellant (petitioner).

      Jack W. Fischer, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Dennis O’Connor, senior assistant state’s attorney, for the appellee (respondent).
   Foti, J.

The petitioner appeals from the judgment dismissing his petition for a writ of habeas corpus. He claims that the habeas court incorrectly determined that his plea of guilty was made in a knowing, voluntary and intelligent manner. We affirm the judgment of the habeas court.

The following facts are relevant. On January 27, 1986, the petitioner was sentenced after a conviction, following a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70, to a term of eighteen years suspended after fourteen years followed by five years of probation. Thereafter, on the same day he pleaded guilty to a separate charge of sexual assault in the first degree and received a sentence consisting of a term of twenty years concurrent with the earlier sentence. It is the dismissal of the petition for the writ of habeas corpus addressing the second sentencing that is the basis of this appeal.

The defendant entered into a plea agreement, the terms of which were that the defendant agreed to plead guilty under the Alford doctrine; North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1972); and the state agreed to recommend that a twenty year sentence be imposed to be concurrent with the earlier sentence, and that the defendant’s attorney had the right to argue for a lesser sentence. The state also agreed to nolle two other criminal charges.

It is the position of the petitioner that the plea canvass was inadequate in that the court did not explain (1) what the chances were for successfully arguing for a lesser sentence and (2) whether his guilty plea could be withdrawn in the event that arguing for less proved unsuccessful.

The petitioner also contests the plea canvass asserting that in addition to having been told that if the court were not to accept the plea agreement, he would be allowed to withdraw his plea and be allowed to plead not guilty to the original charges, he should also have been advised that he could withdraw his guilty plea if the court imposed the “cap” of twenty years rather than a lesser sentence. The petitioner does not dispute that he was advised and understood that, once the court accepted his plea of guilty, he would not be able to withdraw that plea except by permission of the court, and, then, only upon cause shown.

The petitioner first claims that he did not fully understand the actual value of the right to argue for less. The critical question is whether, at the time of the plea canvass, the reasonably perceived value of the court’s implied promise to effect the terms of the plea bargain significantly exceeded the actual value of that promise. See Sherbo v. Manson, 21 Conn. App. 172, 180, 572 A.2d 378, cert. denied, 215 Conn. 808, 546 A.2d 539 (1990). The habeas court reviewed the canvass and concluded in a lengthy and well reasoned memorandum of decision that the trial court complied with all of the requirements of Practice Book § 711, and that the plea was made knowingly and voluntarily. Since the findings of fact of the habeas court are not disputed, the petitioner has not shown that the canvass, in any way, deprived him of the ability realistically to assess the promise so as to make an intelligent decision to plead guilty. This claim has no merit; the petitioner was fully made aware of the direct consequences of his plea, and fully understood the actual value of the court’s promise.

The record clearly discloses that the trial court accepted the defendant’s plea by first determining that he was aware of and understood the range and the maximum of the possible sentence to which he was exposed. He knew that his attorney was free to argue for a lesser sentence than the twenty years recommended by the state, that the court would allow him to withdraw his plea if it did not accept the plea agreement, and that the court was free to impose the “cap” or any sentence below that “cap.” The petitioner’s awareness of the punishment and consequences is evident from the record.

The petitioner also contends that the record must affirmatively disclose that he was told that he would not be allowed to withdraw his plea if he did not receive a lesser sentence than the one recommended by the state. The petitioner’s claim that the court had a duty to inform him that he could not withdraw the plea if he did not receive a more lenient sentence presupposes that he has a right to do so if he was not satisfied with the sentence. Obviously, no such right exists. A defendant’s unfulfilled expectation does not invalidate the plea. “It is well settled . . . that a guilty plea is not involuntary simply because it was motivated by a hope of getting a lesser sentence.” State v. Slater, 169 Conn. 38, 46, 362 A.2d 499 (1975).

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner also claims that the habeas court should have restored his right to appeal from his conviction. The petitioner claims that the trial court failed to advise him of the value of his right afforded in a plea agreement to argue for a lesser sentence than that recommended by the state, and that he should be allowed to raise that claim on appeal. The record is clear that the habeas court reviewed that claim. The relief he requests— appellate review—has been allowed by way of the habeas petition and the issue determined by the habeas court after a full hearing.