author: SPEAR, J.

text:
    AFSCME, COUNCIL 15, LOCAL 3153 v. TOWN OF NEWTOWN
    (AC 17053)
    Foli, Landau and Spear, Js.

      Argued January 20
    officially released July 21, 1998

      Harry B. Elliott, Jr., for the appellant (plaintiff).

      Nancy M. Markey, for the appellee (defendant).
   Opinion

SPEAR, J.

In this appeal, the plaintiff, AFSCME, Council 15, Local 3153, asserts that the trial court improperly confirmed the ruling by the state board of mediation and arbitration (board) that the dispute between the parties was not arbitrable. The plaintiff claims that the question of whether the dispute was arbitrable was never properly before the board because (1) the defendant, the town of Newtown, waived its right to raise that issue by proposing a submission that was addressed to the merits of the dispute and (2) the board relinquished its authority to decide whether the dispute was arbitrable by entertaining submissions on the merits and ultimately framing a submission that addressed the merits of the dispute. We disagree and affirm the judgment of the trial court.

The parties stipulated to the following facts. The plaintiff filed a grievance alleging that the defendant had violated the parties’ collective bargaining agreement (agreement) by taking the position that the employees of the Newtown police department had to be at least fifty-five years old at the time of a nondisability retirement to be eligible for an annual cost of living increase in their pensions. The plaintiff claimed that employees who retire on a nondisability pension before age fifty-five, rather than being disqualified from cost of living increases, would be entitled to the cost of living increases upon reaching age fifty-five. The plaintiff ultimately filed a demand for arbitration with the board, as provided for in the agreement. The defendant, pursuant to General Statutes § 31-97, timely filed a notice with the board that the dispute was not ripe and, therefore, was not arbitrable because the defendant had not actually applied its interpretation of the agreement to any employee.

Because the parties could not agree on a submission, the board framed the issue as follows: “What is the proper interpretation of Article XIV, Section 14.16, of the labor contract between the parties, marked joint [exhibit] 1, as to what employees would be eligible for a cost of living adjustment to their pension?”

After hearing testimony from one witness, the board recessed and conferred with counsel for the parties regarding whether the defendant had raised a claim that the dispute was not arbitrable. The plaintiff claimed that the defendant had waived its right to raise the question of whether the dispute was arbitrable by proposing a submission on the merits of the grievance. The defendant disagreed and asserted that it was pursuing its claim that the dispute was not arbitrable. After requesting briefs on the issue, the board suspended the proceedings. The hearing was not reconvened because the board ultimately ruled that the dispute was not arbitrable because no actual dispute existed. The board stated: “[T]he request by the parties is, at best, for a declaratory ruling. The law is well settled that declaratory rulings are to be avoided by the arbitration process. . . . The problem is not ripe for action by this panel.”

The plaintiff filed an application in the Superior Court to vacate the award. The application alleged that the board exceeded its authority (1) by ruling that the dispute was not arbitrable and (2) by refusing to rule on the merits of the dispute. The court granted the defendant’s application to confirm the award, and this appeal followed.

We turn first to our standard of review. We disagree with the plaintiffs claim that our review is plenary. Appellate review is limited in scope where, as here, the arbitration is consensual. Metropolitan District Commission v. AFSCME, Council 4, Local 184, 237 Conn. 114, 118, 676 A.2d 825 (1996). In consensual arbitration, the contract is the charter of the arbitrator’s authority, and we look to that document to determine the scope of the agreement to be arbitrated. Turner Construction Co. v. Eppoliti, Inc., 28 Conn. App. 139, 142, 609 A.2d 1064 (1992). The agreement provides that “[t]he decision rendered by the arbitrator(s) shall be final and binding on both parties.” Because the agreement contains no restrictions or exceptions as to what disputes are subject to arbitration, the arbitrators are empowered to decide all issues relating to the contract, including whether the dispute is arbitrable. Id., 144.

From the nature of the submission, we determine the scope of our review. “If the submission does not contain limiting or conditional language, then the submission is unrestricted. ... If the submission is unrestricted, the award is final and binding, and cannot be reviewed for factual or legal error. ... In addition, if the submission is unrestricted, an arbitrator is not required to decide the issues presented according to law. . . . Thus, [wjhere the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that the construction placed upon the facts or the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators’ decision of the legal questions involved.” (Internal quotation marks omitted.) Metropolitan District Commission v. AFSCME, Council 4, Local 3713, 35 Conn. App. 804, 808, 647 A.2d 755 (1994). Although the plaintiff does not dispute that the submission here was unrestricted, it claims that the award violates General Statutes § 52-418. We are unpersuaded.

I

The plaintiff first asserts that the defendant waived any right to challenge whether the grievance was arbitrable because of its proposed submission on the merits. The plaintiff concedes that the agreement authorizes the board to determine the question of whether the dispute is arbitrable, but asserts that the board’s authority was circumscribed by a “subsequent limitation by the parties.” The plaintiff claims that a limitation, by way of a waiver, was effected by virtue of each party’s proposing a submission on the merits. This claim is without merit.

In addressing a question of whether a dispute was arbitrable, our Supreme Court has stated that “[w]here the authority to arbitrate rests wholly upon contract, an unrestricted submission of a dispute to arbitrators carries with it the power to decide with finality all issues of fact or law relating thereto.” (Internal quotation marks omitted.) East Hartford v. East Hartford Municipal Employees Union, Inc., 206 Conn. 643, 654, 539 A.2d 125 (1988). Where the parties have granted the arbitrators the power to decide whether a dispute is subject to arbitration, the trial court may vacate the arbitrators’ decision only for violation of § 52-418. Id., 654-55.

In an attempt to bring its claim within the purview of § 52-418 (a) (4), the plaintiff cites only two cases in support of its assertion that the defendant waived its arbitration challenge by proposing a submission on the merits. Neither case is apposite.

In New Britain v. Connecticut State Board of Mediation & Arbitration, 178 Conn. 557, 561, 424 A.2d 263 (1979), our Supreme Court upheld the trial court’s conclusion that “the arbitrability of the underlying dispute must be deemed to have been waived.” Our Supreme Court noted that “the city participated, without objection, in the processing of [the employee’s] grievance .... The record further reveals that the city joined with the union in submitting the dispute over the discharge of [the employee] to arbitration and that the joint submission of the parties neither presented nor reserved any question as to the arbitrability of that dispute. Not until after the underlying dispute had been finally resolved on the merits did the plaintiff raise any question as to the arbitrability of the underlying dispute.” Id.

In contrast, the defendant here timely raised the challenge to arbitration before the panel convened and the issue was pursued and briefed before the board. Because the board agreed with the defendant that the dispute was not arbitrable, the merits of the dispute were never reached.

In New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, 237 Conn. 378, 389-90, 677 A.2d 1350 (1996), our Supreme Court held that the trial court properly ruled that the plaintiff city, by continuing to negotiate, waived the misconduct on the part of the arbitrators in refusing to grant the city a continuance of a scheduled arbitration hearing after the city’s attorney suddenly became ill. The city’s claim that the arbitration award should be vacated pursuant to § 52-418 (a) (3) came too late because the claim was made after the city had already agreed to the resolution of the dispute that constituted the award. Id. The court noted, however, that waiver is a question of fact and that the trial court properly found that counsel for the city, freely and without coercion, discussed and agreed to a resolution of the dispute. Id., 388.

Here, there was nothing extrinsic to the award, such as misconduct by the board, on which the trial court was required to rule. The plaintiff presented its waiver claim to the board, and the board resolved that issue against the plaintiff. Because the submission was unrestricted, the trial court properly did not address the propriety of the board’s ruling.

The plaintiff has the burden of establishing that the award is invalid because it “falls within the proscriptions of General Statutes § 52-418.” State v. AFSCME, 13 Conn. App. 461, 463, 537 A.2d 517 (1988). We conclude that the board’s rejection of the plaintiffs waiver claim did not violate § 52-418 (a) (4).

II

The plaintiff next asserts that the arbitrators lacked authority to address the question of whether the dispute is arbitrable because they framed a submission on the merits of the dispute after the parties were unable to agree on the issue to be addressed. We agree with the trial court that by both inquiring into whether the dispute was ripe for arbitration and requesting briefs on the issue, the panel implicitly submitted to itself the question: “Is the dispute arbitrable?” The submission on the merits constituted an additional issue to be addressed only if the board concluded that the dispute was arbitrable.

Our Supreme Court has sanctioned two part submissions, in which the first issue is whether a dispute is arbitrable. “[TJhreshold questions of arbitrability may properly be committed to the arbitrators themselves for determination under the terms of the contract, along with the merits of the underlying dispute.” New Britain v. Connecticut State Board of Mediation & Arbitration, supra, 178 Conn. 560. The plaintiff cites no authority in support of its claim that the arbitrators relinquished their authority to decide whether the dispute was arbitrable because they also had a submission on the merits before them.

“In deciding whether an arbitrator has exceeded his power, we need only examine the submission and the award to determine whether the award conforms to the submission. ... A challenge of the arbitrator’s authority is limited to a comparison of the award to the submission. . . . Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that the construction placed upon the facts or the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators’ decision of the legal questions involved. . . . Every reasonable presumption and intendment will be made in favor of the award and of the arbitrator’s acts and proceedings. Hence, the burden rests on the party challenging the award to produce evidence sufficient to show that it does not conform to the submission.” (Citations omitted; internal quotation marks omitted.) Bic Pen Corp. v. Local No. 134, 183 Conn. 579, 584-85, 440 A.2d 774 (1981).

In determining that the dispute was not arbitrable, the board’s award conformed precisely to the submission. In light of this conclusion, the board obviously did not address the merits of the dispute, and the trial court properly refused to vacate the award.

The judgment is affirmed.

In this opinion the other judges concurred.

       In its brief, the plaintiff casts its claims as five separate issues: (1) Does a party to an arbitration waive or abandon its right to contest the right to arbitrate a dispute by proposing a submission that is addressed to the merits of the dispute? (2) Do arbitrators lack authority to address the issue of arbitrability when the parties have proposed submissions that are addressed only to the merits of the dispute? (3) Do arbitrators lack authority to find that a dispute is not arbitrable after the arbitrators have framed a submission that addresses only the merits of the dispute? (4) Did the trial court err in not vacating the award? and (5) Did the trial court err in confirming the award?

       General Statutes § 31-97 (b) provides in relevant part: “No panel of [the] board may consider any claim that one or more of the issues before the panel are improper subjects for arbitration unless the party making such claim has notified the opposing party and the chairman of the panel of such claim, in writing, at least ten days prior to the date of hearing

       The plaintiff proposed the following submission: “Did the town breach the 1989-1991 coEective bargaining agreement by indicating that nondisabled employees who retire before attaining the age of fifty-five wiE not receive the cost of Eving adjustment set forth in Section 14.16 when such employees do attain the age of fifty-five?”
      The defendant proposed the foEowing submission: “Whether the town violated § 14.16 of the parties’ 1989-1991 agreement in taking the position that one of the eEgibihty requirements for an employee to receive a cost of Eving acjustment to his or her retirement benefit is that he or she be at least age fifty-five at the time of his or her retirement, unless the employee retires pursuant to [the disabiEty provisions of] § 14.07?”

       The plaintiff relies on General Statutes § 52-418 (a), which provides in relevant part: “Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects ... (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       See footnote 4.

       General Statutes § 52-418 (a) provides in relevant part that the Superior Court “shall make an order vacating the award ... (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown . . . .”


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    BANK OF SOUTHEASTERN CONNECTICUT v. NAZARKO REALTY GROUP ET AL.
    (AC 17261)
    Foti, Spear and Dupont, Js.
    Argued May 4
    officially released July 21, 1998

      Michael Nazarko, pro se, with whom was Thomas Nazarko, pro se, for the appellants (named defendant et al.).

      Michael W. Sheehan, for the appellee (plaintiff).
   Opinion

FOTI, J.

The defendants appeal from the trial court’s decision rendering a deficiency judgment in favor of the plaintiff. The defendants claim that the trial court improperly (1) refused to consider evidence of a subdivision performance bond, (2) refused to apply the lot method of appraisal and (3) applied the discounted cash flow single purchaser method of valuation. We reverse the judgment of the trial court.

The following facts are relevant to this appeal. On October 4,1991, the defendants executed a promissory note in favor of the plaintiff in the amount of $480,000. The note was secured by an open ended mortgage on property located in the town of North Stonington known as the Mains Crossing subdivision. On December 16, 1996, the parties agreed that a judgment of strict foreclosure should enter in favor of the plaintiff with a law day of January 21, 1997, provided that the value of the foreclosed property could be contested at a later date. The trial court, Hendel, J., rendered judgment and set the law day as agreed. Title to the foreclosed property vested in the plaintiff on January 24, 1997.

On May 15, 1997, an evidentiary hearing was commenced before a judge trial referee, Hon. D. Michael Hurley, to determine the amount of any deficiency judgment. The trial court set the value of the property at $118,000 and rendered a $400,107.24 deficiency judgment for the plaintiff. On June 2, 1997, the defendants appealed from the trial court’s judgment.

The defendants first claim that the trial court improperly refused to consider evidence of a subdivision performance bond in determining the value of the property. Specifically, the defendants argue that the trial court improperly determined that the bond was not relevant to the court’s valuation of the property and, therefore, refused to consider such evidence. We agree.

The following facts are relevant to our resolution of this claim. The property subject to valuation consists of a total land area of 34.84 acres. It is subdivided into sixteen lots with 4.19 acres designated as open space. On February 27,1992, the subdivision was approved by the North Stonington planning and zoning commission. On May 19, 1994, one lot was sold. On the date title vested in the plaintiff, a subdivision performance bond in the amount of $410,000 was in effect, having been obtained by the defendants in September, 1993. At the hearing on the plaintiff’s motion for a deficiency judgment, the defendants attempted to demonstrate that the bond was relevant to the valuation of the property because General Statutes § 8-26c (c) required the town to call the bond to the extent necessary to provide a road to service the lot that had been sold in 1994. The defendants argued that if this road was provided, then two other lots would, by necessity, also have road frontage, thereby increasing the fair market value of the property.

During the evidentiary hearing on the plaintiffs motion for a deficiency judgment, the trial court refused to consider evidence of the subdivision performance bond. Instead, the court based its valuation of the property on its finding that no improvements were made to the subdivision after it was approved by the North Stonington planning and zoning commission. The court stated that “[n]o improvements were made. Nothing was done. This certainly doesn’t suggest ... an active market in which people were flocking to buy this property or to bid on those lots.” In addition, the court commented on factors that might cause a decrease in the market value of the property, including “the casino,” “traffic” and “whether or not [an amusement park] would be approved.” The trial court would not permit the defendant Michael Nazarko to testify as to the value of the property because he was not an expert or an appraiser.

When considering a motion for a deficiency judgment, the trial court may make an independent determination as to the valuation of the property. See Farmers & Mechanics Bank v. Kneller, 40 Conn. App. 115, 130, 670 A.2d 324 (1996). Our Supreme Court has held that, in a deficiency judgment proceeding, “[t]he determination of [a property’s] value by a court is the expression of the court’s opinion aided ordinarily by the opinions of expert witnesses, and reached by weighing those opinions in light of all the circumstances in evidence bearing upon value and its own general knowledge of the elements going to establish it. Appeal of Cohen, 117 Conn. 75, 85, 166 Atl. 747 [1933]. Lomas & Nettleton Co. v. Waterbury, 122 Conn. 228, 233, 188 A. 433 (1936). Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 183, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985). [T]he determination of the credibility of expert witnesses and the weight to be accorded their testimony is within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible. ... Id. When confronted with conflicting evidence as to valuation the trier may properly conclude that under all the circumstances a compromise figure most accurately reflects fair market value. New Haven Savings Bank v. West Haven Sound Development, [190 Conn. 60, 70, 459 A.2d 999 (1983)]; Bennett v. New Haven Redevelopment Agency, 148 Conn. 513, 515-16, 172 A.2d 612 (1961); see also Whitney Center, Inc. v. Hamden, [4 Conn. App. 426, 429, 494 A.2d 624 (1985)].” (Emphasis in original; internal quotation marks omitted.) Eichman v. J & J Building Co., 216 Conn. 443, 451-52, 582 A.2d 182 (1990).

“In determining valuation pursuant to [General Statutes] § 49-14, the trier, as in other areas of the law, is ‘not bound by the opinion of the expert witnesses . . . .’ Birgel v. Heintz, 163 Conn. 23, 30, 301 A.2d 249 (1972). . . . ‘The evaluation of testimony is the sole province of the trier of fact. We do not retry the case. The conclusion of the trial court must stand unless there was an error of law or a legal or logical inconsistency with the facts found.’ . . . Maresca v. Allen, 181 Conn. 521, 523, 436 A.2d 14 (1980). We will disturb the trial court’s determination of valuation, therefore, only when it appears on the record before us that the court ‘misapplied or overlooked, or gave a wrong or improper effect to, any test or consideration which it was [its] duty to regard.’ ” (Citation omitted.) New Haven Savings Bank v. West Haven Sound Development, supra, 190 Conn. 69-70.

Our review of the record discloses that the trial court did not consider the defendants’ evidence regarding the existence of a subdivision performance bond. The trial court concluded that the bond was not relevant to the issue of the valuation of the property and, therefore, refused to consider it. Because the trial court refused to consider the defendants’ evidence regarding the effect of the bond on the valuation of the property, it could not exercise its discretion regarding what weight, if any, should be accorded the evidence. “[I]n determining value, the trier is under a legal compulsion to consider everything that might legitimately affect value.” Uniroyal, Inc. v. Board of Tax Review, 174 Conn. 380, 390, 389 A.2d 734 (1978). On the date that title to the property vested in the plaintiff, a $410,000 performance bond was in existence. The purpose of the bond was to provide for the construction of roads to service the lots contained in the subdivision. Pursuant to § 8-26c (c), the town of North Stonington was required to call the bond “to the extent necessary to complete the bonded improvements and utilities required to serve” the lot that had been sold in 1994. Clearly, the construction of a road would have a positive impact on the value of the property. The trial court’s failure to consider relevant and material evidence affecting the fair market value of the property requires a new deficiency hearing. See Grossomanides v. Wethersfield, 33 Conn. App. 511, 516-17, 636 A.2d 867 (1994).

Having heard oral arguments and reviewed the record, transcripts and briefs, we conclude that the remaining issues raised by the defendants are without merit.

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

In this opinion the other judges concurred.

       The defendants are Nazarko Realty Group, a partnership, and Michael Nazarko and Thomas Nazarko.

       The plaintiff Bank of Southeastern Connecticut merged with and became known as The Norwich Savings Society and subsequently merged with and is presently known as People’s Bank.

       The debt was found to be $482,341.63. The trial court also awarded attorney’s fees of $2500, a title search fee of $150 and an appraisal fee of $1075.

       The trial court’s decision was based in part on its finding that no lots were sold from 1989 to February, 1992. No lots could have been sold before February 27, 1992, however, as the subdivision was not approved until that date.

       General Statutes § 8-25 (a) provides in relevant part: “The [planning and zoning] commission may . . . prescribe the extent to which and the manner in which streets shall be graded and improved and public utilities and services provided and, in lieu of the completion of such work and installations previous to the final approval of a [subdivision] plan, the commission may accept a bond in an amount and with surety and conditions satisfactory to it securing to the municipality the actual construction, maintenance and installation of such improvements and utilities within a period specified in the bond. . . .”

       General Statutes § 8-26c (c) provides in relevant part: “If lots have been conveyed [within five years after the approval of the subdivision plan] or any extension thereof, the municipality shall call the bond or other surety on said subdivision to the extent necessary to complete the bonded improvements and utilities required to service those lots. . . .” (Emphasis added.)

       The following colloquy took place between the trial court and the attorneys.
      “[Plaintiffs Counsel]: Basically, what they’re doing is [that] they’re building a road and selling off lots as they go along there. The issue is the value on January 24, Your Honor.
      “[Defense Counsel]: I agree. I couldn’t agree more. But as of January 24, there was a bond in place that their monies—
      “The Court: You’re persisting to argue about a matter that I told you that I don’t see that it has any relevance.
      “[Defense Counsel]: Very well.
      “The Court: It just doesn’t help. I’m not looking at that issue.
      “[Defense Counsel]: Okay.”

       The trial court also refused to allow defense counsel to make an offer of proof. The court stated that “[t]his is not relevant. . . . You may not make an offer of proof. . . . This isn’t the sort of thing [where] an offer of proof is appropriate.”
      Our Supreme Court has held that a party, “although no qualification other than his ownership is shown, is competent to testify as to the value of his . . . real property. Lovejoy v. Darien, 131 Conn. 533, 536, 41 A.2d 98 [1945].” (Citation omitted.) Anderson v. Zweigbaum, 150 Conn. 478, 483 n.1, 191 A.2d 133 (1963); see also C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 7.15.3 (h), p. 171 (lay opinion may properly be admitted on reasonable value of own property).

       General Statutes § 49-14 (a) provides: “At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. Such motion shall be placed on the short calendar for an evidentiary hearing. Such hearing shall be held not less than fifteen days following the filing of the motion, except as the court may otherwise order. At such hearing the court shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiffs claim. The plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment.”

       See footnote 7.


author: LANDAU, J.

text:
    STATE OF CONNECTICUT v. LUIS OTERO
    (AC 17381)
    O’Connell, C. J., and Lavery and Landau, Js.
    Argued March 24
    officially released July 21, 1998

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

      John A. East III, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Dennis J. O’Connor, senior assistant state’s attorney, for the appellee (state).
   Opinion

LANDAU, J.

The defendant, Luis Otero, appeals from a judgment of conviction, rendered after a jury trial, of murder as an accessory in violation of General Statutes §§ 53a-54a (a) and 53a-8 (a). The defendant claims that the trial court improperly instructed the jury regarding the laws of (1) circumstantial evidence, inferences and intent, (2) consciousness of guilt and (3) reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Anthony Grandison traveled from New York with Christopher Duhaney, Vemail Blount and Corey Williams to establish drug selling territory at a housing project on Davis Drive in Bristol. On April 11, 1993, Grandison, Duhaney, Blount and Williams visited the home of Ethel Hughes, where her fourteen year old daughter, Shanequa Coleman, and three younger children also resided. As they drove into the area of the housing project, they heard gunshots that were being fired by several Hispanic men a couple of houses away from Hughes’ home. The four men entered Hughes’ home and were sitting at a table in her kitchen drinking beer when five to seven Hispanic men, including the defendant, who was wearing a ponytail, walked into Hughes’ home. The group of Hispanic men walked through the kitchen and entered the living room. As they returned to the kitchen area to exit the home, the defendant gave Grandison a mean look.

Grandison, Blount, Williams and Duhaney gave their money to Hughes’ daughter, Coleman, because they had been robbed by two of the Hispanic men, known as Sonny and Jay, who had just been in Hughes’ home. Grandison then exited Hughes’ home, and the defendant was in the yard outside of the home. Blount then joined Grandison and was followed shortly thereafter by Williams and Duhaney. The defendant whistled and several men appeared, including Sonny and Jay, the men who had just been in Hughes’ home. The defendant, who was approximately three to four feet from Grandison, stated that he hoped Grandison’s men had guns because his men had guns. Grandison attempted to dissuade the defendant from beginning a gunfight, but the defendant replied, “Let’s do this. Let’s go in the street and bust off ”4 Grandison declined. The defendant replied, “Let’s do it right here, then, if you don’t want to go in the street.” The defendant, Sonny and Jay then lifted their shirts to expose the handles of their guns and said, “Let’s do this.”

Grandison attempted to go back into Hughes’ home, but the door was locked. The defendant pulled out a shiny object and several gunshots were heard. When Grandison turned to face the men, he was shot fatally in the chest. Blount, after watching Grandison fall against some garbage cans, ran from the scene. While running, Blount was shot in the leg. Coleman, who had been in her upstairs bedroom viewing parts of the altercation, saw Sonny and Jay going through Grandison’s pockets. She screamed and they ran. She then ran to her grandparents’ home nearby and called 911. Blount hid nearby and came out to talk to the police when they arrived.

The defendant voluntarily went to the Bristol police department for questioning. When the officers asked the defendant if they could take his picture, the defendant acquiesced but insisted that the officers allow him to take out the elastic that was holding his hair in a ponytail. The defendant stated that he did not want to be mistaken for another man known as “Green Eyes.”

Having set out the relevant facts, we now turn to the principles that guide our analysis of the defendant’s claims. Because the defendant’s claims challenge the constitutionality of the trial court’s jury instructions, “[f]irst, we set out our standard of review of a constitutional attack on the instructions of the trial court. ‘[T]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. ... In determining whether it was indeed reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . State v. Prioleau, [235 Conn. 274, 284, 664 A.2d 743 (1995)].’ . . . State v. Taheri, 41 Conn. App. 147, 157, 675 A.2d 458, cert. denied, 237 Conn. 931, 677 A.2d 1374 (1996).” State v. Billie, 47 Conn. App. 678, 688-89, 707 A.2d 324, cert. granted on other grounds, 244 Conn. 933, 717 A.2d 231 (1998).

I

The defendant first argues that the trial court improperly instructed the jury regarding the law of circumstantial evidence, inferences and intent, thereby allowing him to be convicted using an impermissibly low standard of proof in violation of the constitution. The defendant concedes that he did not file a request to charge on this claim and that he did not preserve this claim for appellate review but, nonetheless, seeks review pursuant to State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error doctrine. Practice Book (1998 Rev.) § 60-5, formerly § 4061. We will review this claim because the record is adequate for review and the defendant alleges the violation of his fundamental right to due process of law. See State v. Billie, supra, 47 Conn. App. 687-88. The defendant’s claim fails, however, because the alleged constitutional violation did not clearly exist and did not clearly deprive the defendant of a fair trial.

The defendant argues that the trial court improperly instructed the jury that the members could “decide that a fact had been proven by circumstantial evidence . . . [by considering] all the evidence ‘in light of [the jury’s] reasoning, experience and common sense.’ ” The defendant further points to the trial court’s assertion that the jury could “ ‘draw any and all logical inferences that it finds reasonable and logical from the evidence that it hears.’ ” The defendant argues that the “jury was never once told that the inferences it had to find proven to establish an element of the crime—that the defendant has the intent to murder—had to be proven beyond a reasonable doubt. On the contrary, it was provided with a far lesser standard, which was that the inference of intent to murder was merely ‘reasonable and logical’ when considered ‘in light of [the jury’s] reasoning, experience and common sense.’ ”

The trial court referred, in its instruction on intent, to the standard of inferences given in connection with its instruction regarding circumstantial evidence. In a minicharge prior to hearing evidence, after asserting that the state must prove each essential element beyond a reasonable doubt, the trial court explained to the jury that it may “draw any and all logical inferences that you find reasonable and logical from the evidence that you hear.” The trial court then described the difference between direct and circumstantial evidence, and stated that “before you decide that a fact has been proven by circumstantial evidence, you must consider all the evidence in light of reason, experience and common sense.” The trial court repeated its instruction regarding direct and circumstantial evidence, and the manner in which such evidence should be considered by the jury.

This issue is controlled by State v. Johnson, 44 Conn. App. 125, 688 A.2d 867 (1997). In Johnson, the defendant challenged the trial court’s instruction to the jury that “ ‘before you decide that a fact has been proved by circumstantial evidence, you must consider all the evidence in light of reason, experience, and common sense. . . . What a person’s intention or knowledge has been is usually to be determined by inference. . . . The only way a jury can ordinarily determine what a person’s intention or knowledge was at any given time, aside from that person’s statements or testimony, is by determining what that person’s conduct was and what circumstances were surrounding that conduct and from that infer what his purpose, intention or knowledge was. ... To draw such an inference is not only the privilege but also the proper function of the jury, provided, of course, that the inference drawn complies with the standard for inferences as explained earlier by me.’ ” Id., 134.

This court rejected the defendant’s argument that he was entitled to a new trial because the instruction on inferences and intent did not declare that it was the state’s burden to prove guilt beyond a reasonable doubt. Id., 135-36. This court also rejected his argument that the court should have instructed the jury that an inferred fact, such as intent, must be proved beyond a reasonable doubt. Id. This court stated that “ ‘[w]here a group of facts are relied upon for proof of an element of the crime it is their cumulative impact that is to be weighed in deciding whether the standard of proof beyond a reasonable doubt has been met and each individual fact need not be proved in accordance with that standard. It is only where a single fact is essential to proof of an element, however, such as identification by means of fingerprint evidence, that such evidence must support the inference of that fact beyond a reasonable doubt.’ State v. McDonough, 205 Conn. 352, 355, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988). Inferences of subordinate facts relied on cumulatively for proof of an element of a crime ordinarily need not be proved by any standard other than common sense. When a particular fact is essential to establish such an element, however, that fact must be proved in accordance with the reasonable doubt standard.” State v. Johnson, supra, 44 Conn. App. 135-36.

This court reasoned that because the trial court “defined the essential mental element for each [of the crimes charged] and unequivocally instructed the jurors that their determination of those elements was to be guided by the standard of reasonable doubt”; id., 136; “there [was] no substance to the defendant’s claim that the jury instructions failed to inform the jurors that the state bore the burden of proving the facts essential to establish each element of the crimes beyond a reasonable doubt.” Id. As a result, we concluded that the defendant’s claim failed to satisfy the third prong of Golding. Id.

In the present case, as in Johnson, the defendant does not point to a single fact that was essential to proving his intent. Instead, there existed a group of facts from which the jury could infer intent. As a result, the state needed to prove only that the cumulative impact of the facts proved beyond a reasonable doubt that the defendant acted intentionally. The group of facts from which the inferences were drawn to prove intent beyond a reasonable doubt, on the other hand, needed to be established only by the “common sense” standard. Id.

Further, as in Johnson, the trial court unequivocally instructed the jury on several occasions that the state was required to prove each and every element, including intent, beyond a reasonable doubt. As a result, the trial court’s instruction regarding intent, inferences and circumstantial evidence did not mislead the jury, did not deprive the defendant of a fair trial and did not constitute plain error.

II

The defendant next claims that the trial court improperly instructed the jury regarding the law of consciousness of guilt. The defendant argues that the trial court improperly instructed the jury that it could consider the defendant’s unwillingness to have his picture taken while wearing a ponytail because the court omitted the defendant’s innocent explanation of not wanting to be mistaken for another man known as “Green Eyes.” The defendant argues that this impropriety violated his state and federal rights to due process, which guarantee a fair trial before an impartial judge. We are unpersuaded.

The following facts are necessary for a resolution of this claim. The defendant requested that the trial court include in its charge that the defendant went to the police station voluntarily and that he did not want his hair in a ponytail for the photograph so that he would not be mistaken for “Green Eyes.” The trial court agreed to include the former but not the latter request. The trial court instructed the jury as follows: “Now, in any criminal trial, it is permissible for the state to show that conduct of the defendant after the time of the alleged offense may fairly have been influenced by the criminal act. That is, the conduct shows a consciousness of guilt.

“In this particular case, the defendant’s attempt to change his appearance at the Bristol police station by taking down his ponytail before his picture was taken might be offered because such conduct tends to show the consciousness of guilt. It does not, however, raise a presumption of guilt. It is up to you as judges of the facts to decide whether the conduct of the defendant reflects consciousness of guilt and to consider such in your deliberations in conformity with these instructions.

“The state points to the testimony of Sergeant [David] McIntyre that the defendant insisted on removing his ponytail before his picture was taken in the late morning of April 11, 1993. It also should be noted by you that the defendant went to the police station voluntarily.” Following the instruction, the defendant again objected to the trial court’s refusal to include the defendant’s innocent explanation. Further, the defendant objected to the trial court’s failure to comment on the defendant’s lack of flight and the flight of Sonny and Jay, two other individuals involved in the incident. The trial court declined to instruct the jury further on those issues.

It is proper for a jury to consider circumstantial evidence that tends to show a consciousness of guilt. State v. Hines, 243 Conn. 796, 815-16, 709 A.2d 522 (1998). It is likewise proper for the judge to comment on such circumstantial evidence. Id. “ ‘In seeking to introduce evidence of a defendant’s consciousness of guilt, “[i]t is relevant to show . . . any statement made by him subsequent to an alleged criminal act, which may be inferred to have been influenced by the criminal act.” . . . State v. Burak, 201 Conn. 517, 533, 518 A.2d 639 (1986), citing State v. Reid, 193 Conn. 646, 655, 480 A.2d 463 (1984).’ ” State v. Marshall, 45 Conn. App. 66, 80, 694 A.2d 816, cert. granted on other grounds, 241 Conn. 925, 697 A.2d 361 (1997). “Once the evidence is admitted, if it is sufficient for a jury to infer from it that the defendant had a consciousness of guilt, it is proper for the court to instruct the jury as to how it can use that evidence. It is then for the jury to consider any ambiguity in the evidence. State v. Knighton, 7 Conn. App. 223, 508 A.2d 772 (1986).” State v. Aleksiewicz, 20 Conn. App. 643, 652, 569 A.2d 567 (1990). “[Although the trial court may, it is not required to ‘enumerate all the possible innocent explanations offered by the defendant.’ ” State v. Groomes, 232 Conn. 455, 473, 656 A.2d 646 (1995), quoting State v. Freeney, 228 Conn. 582, 594, 637 A.2d 1088 (1994). In addition, a defendant is not entitled to an instruction onlack of flight or voluntary surrender to show a “consciousness of innocence.” See, e.g., State v. Jennings, 19 Conn. App. 265, 271-73, 562 A.2d 545, cert. denied, 212 Conn. 815, 565 A.2d 537 (1989).

After stating that the defendant’s conduct in removing his ponytail might be offered to show his consciousness of guilt, the trial court instructed the jury that this evidence did not raise a presumption of guilt. The trial court reminded the jurors that “[i]t is up to you as judges of the facts to decide whether the conduct of the defendant reflects consciousness of guilt and to consider such in your deliberations in conformity with these instructions.” In addition, the trial court noted, immediately after commenting on the state’s evidence regarding consciousness of guilt, that the defendant went to the police station voluntarily. When viewing the trial court’s instructions as a whole, we cannot conclude that the jury was misled or that the trial court abused its discretion.

III

The defendant next claims that the trial court improperly instructed the jury regarding the law of reasonable doubt, thereby depriving him of his state and federal rights to due process of law. The defendant did not preserve this claim for appellate review and seeks review pursuant to State v. Evans, supra, 165 Conn. 70, State v. Golding, supra, 213 Conn. 239-40, and the plain error doctrine. Practice Book (1998 Rev.) § 60-5, formerly § 4061. We will review this claim because it alleges the violation of a fundamental right. We conclude, however, that the alleged constitutional violation did not clearly exist and did not deprive the defendant of a fair trial.

Specifically, the defendant challenges the following instruction: “[Reasonable doubt] is a doubt, such a doubt as, in the serious affairs that concern you, you would heed, that is, such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance.” The trial court continued by stating, “[l]et me go through that again very carefully. It is such a doubt as, in serious affairs that concern you, you would heed, that is, such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance.”

In State v. Morant, 242 Conn. 666, 688, 701 A.2d 1 (1997), our Supreme Court rejected a challenge to the following jury instruction: “ ‘[A] reasonable doubt is a doubt which would cause you as reasonable and prudent men and women to hesitate to act in the more weighty and important matters relating to your own affairs.’ ” Although the Morant court reviewed the defendant’s unpreserved claim under Golding, it held that the defendant had not been denied due process and had not been prejudiced by plain error because the instruction adequately conveyed the concept of reasonable doubt. Id. We do not see any meaningful difference between the instruction in Morant and the instruction in the present case.

In Victor v. Nebraska, 511 U.S. 1, 5, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994), the United States Supreme Court stated that “[t]he beyond areasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course. Cf. Hopt v. Utah, 120 U.S. 430 [440-41, 7 S. Ct. 614, 30 L. Ed. 708] (1887). Indeed, so long as the court instructs the jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt, see Jackson v. Virginia, 443 U.S. 307 [320 n.14, 99 S. Ct. 2781, 61 L. Ed. 2d 560] (1979), the Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof. Cf. Taylor v. Kentucky, 436 U.S. 478 [485-86, 98 S. Ct. 1930, 56 L. Ed. 2d 468] (1978). Rather, ‘taken as a whole, the instructions [must] correctly conve [y] the concept of reasonable doubt to the jury.’ Holland v. United States, 348 U.S. 121, 140 [75 S. Ct. 127, 99 L. Ed. 150] (1954).” “[W]e made clear that the proper inquiry is not whether the instruction ‘could have’ been applied in an unconstitutional manner, but whether there is a reasonable likelihood that the jury did so apply it. Estelle v. McGuire, 502 U.S. 62 [72 and n.4, 112 S. Ct. 475, 116 L. Ed. 2d 385] (1991). The constitutional question ... is whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard.” Victor v. Nebraska, supra, 6. The Winship standard provides that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).

In Holland v. United States, supra, 348 U.S. 140, the United States Supreme Court upheld a jury instruction defining reasonable doubt as “ ‘the kind of doubt . . . which you folks in the more serious and important affairs of your own lives might be willing to act upon.’ ” Although the Supreme Court upheld this language because, taken as a whole, the charge correctly conveyed the concept of reasonable doubt to the jury; id.; the court opined that “this section of the charge should have been in terms of the kind of doubt that would make a person hesitate to act . . . rather than the kind on which he would be willing to act.” (Citation omitted.) Id. Here, the trial court followed the recommendation of the Holland court and properly used the phrase “hesitate to act.” We do not see any meaningful distinction between the instruction endorsed in Holland and the instruction in the present case. Accordingly, we find that the trial court’s instruction adequately conveyed the concept of reasonable doubt to the jury.

As a result, we cannot conclude that the defendant’s state or federal rights to due process were violated, because it was not reasonably possible that the jury was misled.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . .

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       Hughes was a bootlegger who sold beer and cigarettes from her home.

       There was testimony that the phrase “bust off’ refers to shooting at one another with guns.

       At some point during the altercation, Duhaney escaped from the scene, and Williams went to a store.

       “ ‘Under Golding, a defendant can prevail on an unpreserved claim of constitutional error only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. [State v. Golding, supra, 213 Conn. 239-40.] State v. Graham, 33 Conn. App. 432, 441-42, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994). The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review. State v. Newton, 8 Conn. App. 528, 531, 513 A.2d 1261 (1986); see also State v. Thurman, 10 Conn. App. 302, 306, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).’ . . . State v. Harris, 46 Conn. App. 216, 242-43, 700 A.2d 1161, cert. denied, 243 Conn. 930, 701 A.2d 662 (1997).” State v. Billie, supra, 47 Conn. App. 687 n.7.

       Although the defendant asserts in his brief that his federal right to due process of law was violated, he analyzes his claim using state case law. We, therefore, will analyze his claim as a matter of state law. See State v. Downey, 45 Conn. App. 148, 162 n.8, 694 A.2d 1367, cert. denied, 242 Conn. 909, 697 A.2d 367 (1997).

       After defining intent to the jury, the trial court instructed as follows: “What a person’s purpose, intention or knowledge has been is usually a matter to be determined by inference. No person is able to testify that he looked into another’s mind and saw therein a certain purpose or intention. The only way in which you as jurors can ordinarily determine what a person’s purpose is, his intention or knowledge was at any given time, aside from the person’s own statements, if any, is by determining what that person’s conduct was and what the circumstances were surrounding that conduct and from those facts infer what his purpose, intention or knowledge was.
      “To draw such an inference is a proper function of the jury, provided, of course, that any inference drawn complies with the standards for inferences, which were explained in connection with my instructions on circumstantial evidence.
      “Now, let me go back over that because that’s a heavy'—what a person’s purpose, intention or knowledge has been is usually a matter to be determined by inference. No person is able to testify that he looked into another’s mind and saw therein a certain purpose or intention. The only way in which a jury can ordinarily determine what a person’s purpose, intention or knowledge was at any given time, aside from that person’s own statements, if any, is by determining what that person’s conduct was and what the circumstances were surrounding that conduct, and from those infer what his purpose, intention or knowledge was.
      “To draw such an inference is a proper function of you, as the jury, provided, of course, that any inference drawn complies with the standards for inferences, which I have explained to you previously.
      “Our law is that a person who intentionally aids in the commission of the crime is guilty of that very crime. Thus, you must find that the state has proven beyond a reasonable doubt that the defendant intentionally assisted others to commit the crime of murder.” (Emphasis added.)

        The trial court further stated that “[ijntent to cause death may be inferred from the type of weapon used, the manner in which it was used, the type of wounds inflicted, and the events leading to and immediately following the death in question.
      “This inference is not a necessary one. That is, you are not required to infer intent from the actor’s conduct, but it is an inference that you may draw if you find it reasonable and a logical inference, and in accordance with my instructions on circumstantial evidence. Further, I again remind you that the burden of proving intent beyond a, reasonable doubt is on the state of Connecticut.” (Emphasis added.)

       We note that the defendant’s counsel stated at oral argument that the brief was filed in and prepared for our Supreme Court. The defendant argued at oral argument that the decisions of our Supreme Court on this issue were wrongly decided. Also, in his brief, the defendant argued that “Connecticut should break with the past and declare that no specific instruction detailing the inferences permissible from [the defendant’s acts] should be given.” (Emphasis in original.) It is axiomatic that we are bound by our Supreme Court precedent. Further, the defendant has failed to provide this court with any federal precedent that would lead this court to conclude that no specific instruction detailing permissible inferences should be given. We therefore analyze this claim under the law of this state.

       We note that the defendant’s counsel stated at oral argument that this issue was filed in and prepared for our Supreme Court and that the defendant claimed this issue to preserve it for the federal court.

       See footnote 6.

       We note that “[o]ur Supreme Court has repeatedly held that, as a general rule, the due process clauses of both the United States and Connecticut constitutions have the same meaning and impose similar limitations. State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982); Caldor’s, Inc. v. Bedding Barn, Inc., 177 Conn. 304, 314, 417 A.2d 343 (1977).’ State v. Leroux, 18 Conn. App. 223, [229], 557 A.2d 1271, cert. denied, 212 Conn. 809, 564 A.2d 1072 (1989). Furthermore, this court has noted that in an independent analysis of a state constitutional provision, departure from federal constitutional precedent is usually justified only where the United States Supreme Court has created exception to or deviated from rules previously enunciated by it ... . State v. Miller, 29 Conn. App. 207, 222-23, 614 A.2d 1229 (1992), aff'd, 227 Conn. 363, 630 A.2d 1315 (1993), quoting State v. DeFusco, 27 Conn. App. 248, 256, 606 A.2d 1 (1992), aff'd, 224 Conn. 627, 620 A.2d 746 (1993). When we find that our citizens have relied on an understanding of their constitutional rights that is more expansive than that afforded under a recent interpretation of the federal constitution by the United States Supreme Court, we will be inclined to interpret our state constitution as affording greater protection to preserve those rights. See, e.g., State v. Oquendo, 223 Conn. 635, 646-52, 613 A.2d 1300 (1992). Otherwise, we will continue to follow the persuasive analysis of the United States Supreme Court. State v. Miller, supra, 222-23.” (Internal quotation marks omitted.) State v. Adams, 38 Conn. App. 643, 655, 662 A.2d 1327, cert. denied, 235 Conn. 908, 665 A.2d 902 (1995). Because the defendant has separately analyzed his state and federal claims, we will address the applicable state and federal case law.

       The trial court continued to state the following: “[Reasonable doubt] is not a suggestion springing from any feelings of pity or sympathy for the accused or any other persons who might be affected by your decision. It is, in other words, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence.
      “It is a doubt that is honestly entertained and is reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence.
      “Now, proof beyond a reasonable doubt does not mean proof beyond all doubt. The law does not require absolute certainty on the part of the jury before it returns a verdict of guilty. The law requires, after hearing all the evidence, if there is something in the evidence or lack of evidence that leaves in the minds of the jurors, as reasonable men and women, a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted. Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.”


author: DALY, J.

text:
    ANTONIO CHIEFFALO v. NORDEN SYSTEMS, INC.
    (AC 16405)
    Foti, Landau and Daly, Js.
    Argued December 8, 1997
    officially released July 21, 1998

      Stefan Underhill, for the appellant-appellee (defendant).

      Stephen J. Conover, for the appellee-appellant (plaintiff).
   Opinion

DALY, J.

The defendant, Norden Systems, Inc., appeals from the judgment of liability and award of damages, rendered after a jury trial, for breach of an implied employment contract. On appeal, the defendant claims that the trial court improperly denied its motion to set aside the verdict and denied, in part, its motion for judgment notwithstanding the verdict. The plaintiff, Antonio Chieffalo, cross appeals, claiming that the trial court improperly granted, in part, the defendant’s motion for judgment notwithstanding the verdict as to the count of negligent infliction of emotional distress. We affirm the judgment in part and reverse it in part.

The plaintiff brought a complaint alleging (1) breach of an implied employment contract by termination without just cause, (2) breach by termination without review by peer review panel and (3) negligent infliction of emotional distress. The jury returned a verdict for the plaintiff on the first and third counts. The defendant filed posttrial motions (1) to set aside the verdict, (2) for a remittitur and (3) for judgment notwithstanding the verdict. The trial court granted the motion for judgment notwithstanding the verdict on the count of negligent infliction of emotional distress and denied the remaining motions. Accordingly, the trial court rendered judgment for the plaintiff on his claim of breach of implied contract and for the defendant on the remaining counts.

The jury reasonably could have found the following facts. The plaintiff was initially hired by the defendant on October 24,1966. He was promoted and was eventually made a supervisor in the defendant’s information systems department. In January, 1985, he voluntarily resigned for personal reasons. Several months later, the plaintiff sought reemployment with the defendant and was interviewed by information systems manager Frank Marini. The plaintiff was eventually rehired by the defendant on August 12, 1985.

In 1990, the plaintiff unsuccessfully applied for the position of manager of the information systems department. The position was given to a peer, John Mercurio. The plaintiffs working relationship with his supervisor and peers deteriorated and culminated in his refusal to accept a temporary assignment to participate in a team project. The plaintiff was told that his refusal to participate would result in his termination, but he continued to refuse. He was subsequently fired by Mercurio in front of another employee and was escorted from Mercurio’s office in view of approximately twenty employees.

I

The defendant claims that the trial court improperly denied its motion to set aside the verdict. On appeal, the defendant raised several claims, one of which we find dispositive. Specifically, the defendant claims that the motion should have been granted because the trial court improperly admitted into evidence a hearsay statement of an agent against the principal without supporting evidence to show that the agent was authorized to make such a statement. It argues that without the statement of the agent, the jury could not reasonably and legally have found that an implied employment contract existed. We agree.

Over objection, the plaintiff was allowed to testify concerning a statement allegedly made by Marini during his interview of the plaintiff in 1985. The plaintiff testified that Marini had told him that “I would be given an opportunity to reestablish myself and, assuming that I went back to my prior levels prior to my resignation, that I would have continued employment with [the defendant].” The plaintiff relies on this statement to support the jury’s finding of an implied employment contract.

“Our standard of review, where the trial court’s action on a motion to set aside a verdict is challenged, is whether the trial court clearly abused its discretion. . . . The decision to set aside a verdict is a matter within the broad legal discretion of the trial court and it will not be disturbed unless there has been a clear abuse of that discretion. . . . McKee v. Erikson, 37 Conn. App. 146, 148, 654 A.2d 1263 [cert. denied, 233 Conn. 908, 658 A.2d 980] (1995); see also Palomba v. Gray, 208 Conn. 21, 25, 543 A.2d 1331 (1988). . . . White v. Edmonds, 38 Conn. App. 175, 182, 659 A.2d 748 (1995). The trial court may set aside a jury’s verdict only if it finds that the jury could not reasonably and legally have reached its conclusion. Mulligan v. Rioux, 229 Conn. 716, 726, 643 A.2d 1226 (1994), on appeal after remand, 38 Conn. App. 546, 662 A.2d 153 (1995).” (Internal quotation marks omitted.) Mezes v. Mead, 48 Conn. App. 323, 328, 709 A.2d 597 (1998).

The statement made by Marini was hearsay and was not admissible against the principal simply because Marini, an agent, was an employee of the defendant. “The mere existence of an employment relationship without more does not render statements of an employee admissible against an employer. Liebman v. Society of Our Lady of Mount St. Carmel, Inc., 151 Conn. 582, 586, 200 A.2d 721 (1964). Before evidence can be admitted to show what an agent said, it must be established that the agent was authorized by the principal to make an admission. Robles v. Lavin, 176 Conn. 281, 284, 407 A.2d 959 (1978); Hartford National Bank & Trust Co. v. DiFazio, 6 Conn. App. 576, 586, 506 A.2d 1069 [cert. denied, 200 Conn. 805, 510 A.2d 192] (1986). The agency relationship must be proved by a fair preponderance of the evidence. Robles v. Lavin, supra [284]; Leary v. Johnson, 159 Conn. 101, 105, 267 A.2d 658 (1970).” (Internal quotation marks omitted.) Munson v. United Technologies Corp., 28 Conn. App. 184, 188, 609 A.2d 1066 (1992).

Even if we assume that Marini’s “promise” of continued employment meant that the plaintiff could be terminated only for just cause, the plaintiff still must establish by a preponderance of the evidence that Marini was authorized by the defendant to make such an admission. Id. No such evidence was offered, and the statement remained inadmissible hearsay.

Accordingly, to prevail on the count of his complaint alleging the existence of an implied contract, the plaintiff had the burden of proving by a fair preponderance of the evidence that the employer had agreed, either by word or action, to undertake some form of actual contractual commitment to him under which he could not be terminated without just cause. This the plaintiff failed to do. Marini’s inadmissible statement was crucial to the plaintiffs cause of action. It was timely objected to, and the trial court improperly admitted the statement.

In light of our determination that the trial court improperly admitted Marini’s statement, we conclude that its admission constituted harmful error because without Marini’s statement, the plaintiff did not present sufficient evidence to establish that he was anything other than an employee at will. The jury could not reasonably and legally have reached the conclusion that the defendant breached an implied employment contract. Therefore, we hold that the trial court improperly denied the defendant’s motion to set aside the verdict and direct the trial court to render judgment for the defendant.

II

The plaintiff cross appeals from the trial court’s granting of the defendant’s motion for judgment notwithstanding the verdict as to the count of negligent infliction of emotional distress. We affirm that portion of the trial court’s judgment.

The jury returned a verdict in the plaintiffs favor on the count of negligent infliction of emotional distress and awarded damages in the amount of $25,000. The defendant filed a motion for judgment notwithstanding the verdict on the basis of insufficient evidence, which was granted by the trial court.

Our Supreme Court has consistently held that a defendant is not liable for emotional distress unless the defendant, or its agents or servants, should have realized that its conduct involved an unreasonable risk of causing the distress, and from the facts known to it, its agents should have realized that the distress, if it were caused, might result in illness or bodily harm. Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345-46, 398 A.2d 1180 (1978). “This part of the Montinieri test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such a fear were reasonable in light of the defendants’ conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the fear were unreasonable in light of the defendants’ conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable.” Barrett v. Danbury Hospital, 232 Conn. 242, 261-62, 654 A.2d 748 (1995).

The juiy’s verdict must stand if it could reasonably and legally have reached its conclusion. Mezes v. Mead, supra, 48 Conn. App. 328. The correctness of the trial court’s denial of the motion to set aside the verdict or for judgment notwithstanding the verdict must be tested by viewing the evidence in the light most favorable to the sustaining the verdict. Bartone v. Robert L. Day Co., 232 Conn. 527, 536, 656 A.2d 221 (1995); Chanosky v. City Building Supply Co., 152 Conn. 642, 643, 211 A.2d 141 (1965).

The trial court held that “[ajfter reading the actual trial transcripts as to the evidence on this issue . . . the court can find no evidence to support a finding by the jury of unreasonableness in the manner that the plaintiff was terminated. The trial record is void of any evidence, either direct or circumstantial, that is necessary to support the jury’s finding. On the evidence presented, the jury could not ‘reasonably and legally have reached [its] conclusions.’ There was no evidence that the manner of the plaintiffs termination from employment was different in any way from the usual termination of employment or that it was done in any way that would cause anything more than the normal upset that would result from any termination of employment. There was no evidence to prove that the defendant [or its agents] knew or should have known that [their] conduct in the termination process involved an unreasonable risk of causing emotional distress that might result in illness or bodily harm.”

We agree with the trial court that the plaintiff failed to meet his burden of proof. That court properly granted the defendant’s motion for judgment notwithstanding the verdict as to the count of negligent infliction of emotional distress.

The judgment is reversed on the appeal only as to the first count alleging the breach of an implied contract of employment and the case is remanded with direction to render judgment for the defendant on that count.

In this opinion the other judges concurred.

       The defendant claims that the trial court (1) miscalculated the amount of economic damages, (2) allowed admission of a statement by an agent against the principal without evidence that the agent was authorized to make the statement, (3) failed to charge the jury on disclaimers of contractual intent, (4) allowed a verdict to stand that was not supported by sufficient evidence and (5) charged the jury improperly in several other areas.

       In support of his claim, the plaintiff also offered various policy guides prepared by the defendant containing explicit disclaimer language.


author: O’CONNELL, C. J.

text:
    LISA PRICE-CROWLEY v. MICHAEL KOZLOWSKI, COMMISSIONER OF MOTOR VEHICLES
    (AC 17258)
    O’Connell, C. X, and Spear and Dupont, Js.
    Submitted on briefs May 1
    officially released July 21, 1998

      Jeffrey D. Brownstein and Gregory A. Thompson filed a brief for the appellant (plaintiff).

      Richard Blumenthal, attorney general, and Priscilla J. Green, assistant attorney general, filed a brief for the appellee (defendant).
   Opinion

O’CONNELL, C. J.

The plaintiff appeals from the trial court’s judgment sustaining suspension by the defendant, Michael Kozlowski, commissioner of motor vehicles, of the plaintiffs license to operate a motor vehicle on the ground that she had operated a vehicle while her blood alcohol content exceeded the statutory limit. General Statutes (Rev. to 1995) § 14-227b, as amended by Public Acts 1995, No. 95-279, § l. The plaintiff claims that the trial court improperly concluded that the police officer who stopped her had a reasonable and articulable suspicion that she had committed or was about to commit a crime so as to justify the administration of roadside sobriety tests. We affirm the judgment of the trial court.

The following facts are necessary for a disposition of this appeal. At approximately 1:52 a.m. on November 24,1996, a state trooper observed the plaintiff operating a motor vehicle erratically on Interstate 84 in the town of Tolland. The trooper stopped the plaintiffs car and, after checking her license and registration, asked her to exit the vehicle and to perform roadside sobriety tests. As the plaintiff got out of her car, the trooper observed that she was unsteady on her feet. During the roadside sobriety testing, the trooper noticed an odor of alcohol on the plaintiffs breath and, when she failed the roadside tests, he arrested her for operating a motor vehicle while under the influence of intoxicating liquor or any drug in violation of General Statutes § 14-227a (a).

The trooper then transported the plaintiff to the state police barracks, where she submitted to two chemical alcohol tests. Both tests showed a blood alcohol level in excess of ten-hundredths of 1 percent. The plaintiff was subsequently notified by the commissioner that her operator’s license would be suspended for ninety days pursuant to § 14-227b (d). She requested an administrative hearing regarding the license suspension. The hearing officer, acting on behalf of the commissioner, found that all four license suspension criteria set forth in § 14-227b (f) had been satisfied and ordered the suspension of the plaintiffs license. The plaintiff appealed to the trial court pursuant to General Statutes § 4-183. Following the trial court’s dismissal of her case, the plaintiff appealed to this court.

Review of the commissioner’s action is highly restricted. O’Rourke v. Commissioner of Motor Vehicles, 33 Conn. App. 501, 506, 636 A.2d 409, cert. denied, 229 Conn. 909, 642 A.2d 1205 (1994). “In cases involving administrative appeals it is not the function of this court, nor was it the function of the trial court, to retry the case or to substitute its judgment for that of the administrative agency.” (Internal quotation marks omitted.) Redden v. Kozlowski, 45 Conn. App. 225, 228, 695 A.2d 26 (1997).

The plaintiff focuses on the requirement that a police officer have probable cause to arrest an individual for operating a motor vehicle while under the influence of intoxicating liquor or drug. Pursuant to § 14-227b (f), to sustain a license suspension, the commissioner must find, inter alia, that there was probable cause to arrest the individual in question. The plaintiff claims that there was no probable cause for her arrest because the roadside sobriety tests that established such probable cause were unlawful as there was no reasonable and articulable suspicion to require the plaintiff to exit her vehicle and to perform the tests. We are not persuaded.

“A police officer does not need to have probable cause to believe that a crime has been committed in order to make a lawful stop of a motor vehicle. An investigatory stop is authorized if the police officer had a reasonable and articulable suspicion that a person has committed or is about to commit a crime. State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990). Whether a reasonable and articulable suspicion exists depends on the totality of the circumstances. State v. Anderson, 24 Conn. App. 438, 441, 589 A.2d 372, cert. denied, 219 Conn. 903, 593 A.2d 130 (1991). An investigative stop can be appropriate even where the police have not obseived a violation because a reasonable and articulable suspicion can arise from conduct that alone is not criminal. . . . Kolakowski v. Hadley, 43 Conn. App. 636, 644, 685 A.2d 689 (1996). The purpose of an investigatory stop is to maintain the status quo for a brief period of time to allow the police to investigate the circumstances that give rise to the suspicion of criminal wrongdoing. State v. Anderson, supra, 441.” (Internal quotation marks omitted.) Costello v. Kozlowski, 47 Conn. App. 111, 115, 702 A.2d 1197 (1997).

Connecticut cases have presumed that roadside sobriety tests are incident to the initial stop, and that chemical blood and breath tests are incident to the arrest. See State v. Hancich, 200 Conn. 615, 618-19, 513 A.2d 638 (1986); State v. Rutledge, 17 Conn. App. 250, 252, 552 A.2d 435 (1989); State v. Smith, 16 Conn. App. 156, 158, 547 A.2d 69, cert. denied, 209 Conn. 820, 551 A.2d 758 (1988).

In the present case, the police officer observed the plaintiff operating a motor vehicle erratically on Interstate 84 at 1:52 a.m. This observation was sufficient to provide the officer with a reasonable and articulable suspicion that the plaintiff was operating a motor vehicle while under the influence of intoxicating liquor or drug. As noted by the trial court, the officer “observed the [plaintiffs] vehicle swerving onto the breakdown lane two or three times. Such erratic operation may be caused by factors other than alcohol consumption; but alcohol consumption is certainly a reasonable suspicion.” The officer properly investigated the circumstances giving rise to his suspicion by administering roadside sobriety tests to the plaintiff. The trial court correctly stated: “Such tests are a more extensive process but analogous to the interview technique of investigation.” The fact that the officer chose to administer the roadside tests without first asking the plaintiff if she had been drinking or detecting an odor of alcohol on the plaintiffs breath is of no consequence.

The officer had a reasonable and articulable suspicion of criminal activity that justified the administration of the roadside sobriety tests. Because the results of those tests provided the officer with probable cause to arrest the plaintiff, the trial court properly dismissed the plaintiffs appeal from the commissioner’s suspension of her license.

The judgment is affirmed

In this opinion the other judges concurred.

       General Statutes (Rev. to 1995) § 14-227b, as amended by Public Acts 1995, No. 95-279, § 1, provides in relevant part: “(a) Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, breath or urine ....
      “(c) If the person arrested . . . submits to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicate that the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight, the police officer, acting on behalf of the commissioner of motor vehicles, shall immediately revoke and take possession of the motor vehicle operator’s license . . . for a twenty-four-hour period and shall issue a temporary operator’s license ... to such person valid for the period commencing twenty-four hours after issuance and ending thirty days after the date such person received notice of his arrest by the police officer. The police officer shall prepare a written report of the incident and shall mail the report ... to the department of motor vehicles within three business days. . . .
      “(d) Upon receipt of such report, the commissioner of motor vehicles may suspend any license ... of such person effective as of a date certain, which date shall be not later than thirty days after the date such person received notice of his arrest by the police officer. Any person whose license or operating privilege has been suspended in accordance with this subsection shall automatically be entitled to a hearing before the commissioner to be held prior to the effective date of the suspension. ...” (Emphasis added.)

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. . . .”

       General Statutes (Rev. to 1995) § 14-227b (f), as amended by Public Acts 1995, No. 95-279, § 1, provides in relevant part: “The hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or drug or both ... (2) was such person placed under arrest; (3) did such person refuse to submit to such [chemical alcohol] test or analysis . . . and (4) was such person operating the motor vehicle. . .