text:
    First Charter National Bank v. Robert A. Ross et al.
    (11063)
    Daly, Lavery and Cretella, Js.
    Argued October 2
    decision released December 15, 1992

      Michael S. McKenna, for the appellant-appellee (plaintiff).

      Richard L. Newman, for the appellee-appellant (defendant Ann Ross).
   Daly, J.

The plaintiff appeals from the trial court’s judgment rendered in favor of the defendant Ann D. Ross, who has filed a cross appeal. The plaintiff claims that the trial court improperly (1) permitted the defendant to invoke fraud as a defense, (2) found an agency relationship between the defendant’s husband and the plaintiff, and (3) imputed the fraud of the defendant’s husband to the plaintiff. In her cross appeal, the defendant claims that the trial court improperly failed (1) to join the Small Business Administration as a necessary party, (2) to permit her to amend her special defenses, and (3) to award the proper damages and interest against the named defendant.

The factual background is as follows. On July 5, 1979, the Rosses executed a guarantee for a $250,000 loan to be made by the Concord National Bank (Concord) to Midland Textile Corporation (Midland) of North Carolina. The guarantee was secured by a mortgage on their property located at Candlewood Isle in New Fairfield.

While the defendant was entertaining guests on the dock of the Candlewood Isle house, her husband, Robert A. Ross, approached the defendant and presented her with papers to sign. The defendant inquired as to whether the documents involved the Candlewood Isle house and explained that if they did she would refuse to sign them. Her husband responded in the negative. Relying on her husband’s assurances, the defendant signed the documents. The documents were, in fact, the guarantee and the mortgage deed to the Candlewood Isle house. Concord had no contact with the defendant before granting the loan. It customarily relied on its borrowers to produce all the necessary documents required by the loan commitment. As such, Concord was relying on Robert Ross to produce the proper documentation.

On July 11, 1979, Robert Ross, acting in his capacity as president of financially troubled Midland, executed a promissory note for $250,000 to Concord in return for the loan to Midland. Concord assigned its interest in the note to the Small Business Administration which guaranteed 85 percent of the note in the event of a default. The Small Business Administration subsequently assigned its interest back to Concord on December 19, 1983.

The plaintiff, as Concord’s successor, instituted this action seeking foreclosure of the mortgage on February 18, 1987. On September 12, 1990, the defendant filed an amended answer and ten special defenses, two of which alleged fraud by the plaintiff. The defendant claimed that she did not knowingly or willingly execute a mortgage deed and that the mortgage was a result of fraud, deceit or misrepresentation.

The trial court rendered its decision, which was based on the defendant’s fifth special defense, finding that the mortgage and guarantee were obtained by fraud on the part of the plaintiff acting in concert with Robert Ross and Midland. The trial court held that Robert Ross had acted fraudulently. It also held that his fraud was imputed to the plaintiff because he was the agent of the plaintiff. The trial court determined an agency relationship existed because the guarantee and the mortgage were for the benefit of the plaintiff and because the plaintiff relied on the husband to obtain the defendant’s signature.

The trial court rendered judgment in favor of the defendant and in favor of the plaintiff against Robert Ross in the amount of $250,000 plus interest of $373,750 and attorney’s fees of $18,000 and ordered foreclosure by sale of Robert Ross’ interest in the mortgaged premises. The plaintiff appealed and the defendant cross appealed.

I

The plaintiff first claims that the trial court improperly permitted the defendant to assert fraud as a special defense to the foreclosure action. “The essential elements of an action in fraud . . . are: (1) that a false representation was made as a statement of fact; (2) that it was untrue and known to be untrue by the party making it; (3) that it was made to induce the other party to act on it; and (4) that the latter did so act on it to his injury. Miller v. Appleby, [183 Conn. 51, 54-55, 438 A.2d 811 (1981)]. A claim of fraud must be proven by clear and satisfactory evidence. Id., 55.” (Internal quotation marks omitted.) Regis v. Connecticut Real Estate Investors Balanced Fund, Inc., 28 Conn. App. 760, 768, 613 A.2d 321 (1992). Whether the evidence supports the defendant’s claim of fraud is a question of fact. Id., citing J. Frederick Scholes Agency v. Mitchell, 191 Conn. 353, 358, 464 A.2d 795 (1983); Miller v. Appleby, supra, 55. The plaintiff argues that the defendant may not assert a defense of fraud because she negligently failed to read the papers that she signed at her husband’s request. We disagree.

“The general rule is that where a person of mature years and who can read and write, signs or accepts a formal written contract affecting his pecuniary interests, it is [that person’s] duty to read it and notice of its contents will be imputed to [that person] if [that person] negligently fails to do so; but this rule is subject to qualifications, including intervention of fraud or artifice, or mistake not due to negligence, and applies only if nothing has been said or done to mislead the person sought to be charged or to put a [person] of reasonable business prudence off . . . guard in the matter.” Ursini v. Goldman, 118 Conn. 554, 562, 173 A. 789 (1934); see also King v. Industrial Bank of Washington, 474 A.2d 151, 155 (D.C. App. 1984).

It is within the trial court’s discretion to determine whether, under the circumstances, the defendant was not diligent in trying to read the documents she signed and whether to charge her with knowledge of their contents. Corona v. Esposito, 4 Conn. Cir. Ct. 296, 302, 230 A.2d 624 (1966). Unless the trial court abused its discretion, we will not disturb this determination. Id.

Robert Ross presented the guarantee and mortgage to the defendant with the signature pages on top, thereby discouraging the defendant from looking at the contents of the documents. He asked her to sign the documents and, in response to her inquiry, assured her that they had nothing to do with the house. She was entertaining company on the dock at the house when her husband approached her. Given these circumstances, we cannot say that the trial court abused its discretion.

II

The plaintiff’s remaining claims challenge the trial court’s determination that Robert Ross acted as the plaintiff’s agent and, as such, his actions should be imputed to the plaintiff. Generally, a person’s fraud in inducing his or her spouse to execute a mortgage does not “invalidate it as against the mortgagee unless the mortgagee in some way participated in or knew of the fraud.” Lesser v.Strubbe, 67 N.J. Super. 537, 545, 171 A.2d 114, aff’d, 39 N.J. 90, 187 A.2d 705 (1961). Here, the trial court imputed the fraudulent misrepresentations of the defendant’s husband to the plaintiff after finding that an agency relationship existed between them because the plaintiff “relied entirely upon Mr. Ross to obtain Ms. Ross’s signature on the guarantee and mortgage deed securing said guarantee.”

“Agency is defined as the fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act .... Restatement (Second), 1 Agency § 1. McLaughlin v. Chicken Delight, Inc., 164 Conn. 317, 322, 321 A.2d 456 (1973). Thus, the three elements required to show the existence of an agency relationship include: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking. Restatement (Second), 1 Agency § 1, comment b (1958). Botticello v. Stefanovicz, 177 Conn. 22, 25, 411 A.2d 16 (1979); see also Long v. Schull, 184 Conn. 252, 256, 439 A.2d 975 (1981). The existence of an agency relationship is a question of fact. Botticello v. Stefanovicz, supra, 26; Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 124, 374 A.2d 144 (1976).” (Internal quotation marks omitted.) Becken stein v. Potter & Carrier, Inc., 191 Conn. 120, 132-33, 464 A.2d 6 (1983). Therefore, the trial court’s decision will be reversed only if it is clearly erroneous and not supported by the evidence. Rosenblit v. Danaher, 206 Conn. 125, 146, 537 A.2d 145 (1988). “Some of the factors listed by the Second Restatement of Agency in assessing whether such a relationship exists include: whether the alleged principal has the right to direct and control the work of the agent; whether the agent is engaged in a distinct occupation; whether the principal or the agent supplies the instrumentalities, tools, and the place of work; and the method of paying the agent. ... In addition, [a]n essential ingredient of agency is that the agent is doing something at the behest and for the benefit of the principal. . . .Finally, the labels used by the parties in referring to their relationship are not determinative; rather, a court must look to the operative terms of their agreement or understanding.” (Citations omitted; internal quotation marks omitted.) Beckenstein v. Potter & Carrier, Inc., supra, 133-34.

The existence of an agency relationship must be proven by a fair preponderance of the evidence. Leary v. Johnson, 159 Conn. 101, 105, 267 A.2d 658 (1970); Munson v. United Technologies Corporation, 28 Conn. App. 184, 188, 609 A.2d 1066 (1992). We find that such a relationship was not supported by the evidence of this case. There is no evidence in the record indicating that the plaintiff directed and controlled Robert Ross’ actions to obtain the necessary documents for the loan. The plaintiff did not compensate Robert Ross for obtaining the appropriate signatures. Moreover, the loan itself was made not for the benefit of the bank but for the benefit of Robert Ross’ corporation. Therefore, the trial court could not have properly determined that an agency relationship existed. Nor could it have properly imputed the knowledge of the fraud to the plaintiff.

III

Turning to the defendant’s cross appeal, we will consider whether the defendant was aggrieved by the trial court’s decision. Because this issue implicates the subject matter jurisdiction of this court, we may raise it sua sponte. “Any appellee . . . aggrieved by the judgment or decision from which the appellant has appealed may jointly or severally file a cross appeal within ten days from the filing of the appeal.” Practice Book § 4005. The test for demonstrating aggrievement is well settled: “First, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.” Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 307, 592 A.2d 953 (1991).

The defendant has brought this cross appeal to challenge the trial court’s judgment rendered in her favor. The trial court rendered a default judgment against her former husband and ordered that only his interest in the Candlewood Isle property be foreclosed. Because the defendant prevailed in the trial court, she has not been injured by the trial court’s judgment notwithstanding that she now owns that half of the property against which a judgment of foreclosure has entered. See Bartlett v. Administrator, 142 Conn. 497, 509, 115 A.2d 671 (1955); McNeil v. Tyson, 37 Conn. Sup. 624, 432 A.2d 328 (1981). She obtained that one-half interest by quitclaim deed; see footnote 1, supra; subject to the existing mortgage. Thus, the defendant is not aggrieved by the trial court’s judgment and her cross appeal must be dismissed.

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

In this opinion the other judges concurred.

       On July 31, 1987, a default judgment was rendered against Robert A. Ross, the named defendant, for failure to appear. The defendants had been married but were divorced in 1981, and Robert A. Ross quitclaimed his interest in the premises to Ann D. Ross to whom we shall refer as the defendant.

       On October 16, 1984, Concord National Bank consolidated its banking operations with Citizens National Bank to form the plaintiff First Charter National Bank.


source: Caselaw Access Project

author: Freedman, J.

license: Public Domain

text:
    State of Connecticut v. Fred Charles Knight
    (10463)
    Dupont, C. J., Heiman and Freedman, Js.
    Argued September 29
    decision released December 15, 1992

      Neal Cone, assistant public defender, with whom, on the brief, were G. Douglas Nash, public defender, for the appellant (defendant).

      Jack W. Fischer, deputy assistant state’s attorney, with whom, on the brief, were Eugene J. Callahan, state’s attorney, and Warren Murray, assistant state’s attorney, for the appellee (state).
   Freedman, J.

By substitute information, the defendant was charged with “sale of narcotics by [a] non-drug-dependent person” in violation of General Statutes § 21a-278 (b). In its bill of particulars filed on the same day, the state alleged that the defendant “did possess with intent to sell a narcotic substance” in violation of General Statutes § 21a-278 (b). After the trial court instructed the jury on the elements of possession of narcotics with intent to sell, the jury returned its verdict finding the defendant guilty as charged in the information of “sale of narcotics by a non-drug-dependent person.” On appeal, the defendant claims that the trial court improperly (1) accepted the guilty verdict for illegal sale of narcotics, and (2) instructed the jury on the elements of possession of narcotics with intent to sell. We agree and reverse the judgment of conviction of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b).

Although neither of the defendant’s claims was raised in the trial court, “we conclude that the [defendant’s] claims qualify for review under the plain error doctrine. This court ‘may in the interests of justice notice plain error not brought to the attention of the trial court.’ Practice Book § 4185. ‘Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985); Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 609, 436 A.2d 1259, cert. denied, 449 U.S. 956, 101 S. Ct. 363, 66 L. Ed. 2d 221 (1980). An important factor in determining whether to invoke the plain error doctrine is whether the claimed error ‘resulted] in an unreliable verdict or a miscarriage of justice.’ State v. Hinckley, supra, 88. This is such a case.” Smith v. Czescel, 12 Conn. App. 558, 563, 533 A.2d 223, cert. denied, 206 Conn. 803, 535 A.2d 1316 (1987).

The jury found the defendant guilty of sale of narcotics. It was never instructed as to that offense. In fact, the trial court never mentioned the word sale in its instructions to the jury. “It is axiomatic that the state is required to prove all the essential elements of the crimes charged beyond a reasonable doubt in order to obtain a conviction. ... It cannot be considered harmless error for a jury to find an accused guilty without even knowing what are the essential elements of the crimes charged. Put another way, the failure to instruct a jury on an essential element of a crime charged is error because it deprives the defendant of the right to have the jury told what crimes he is actually being tried for and what the essential elements of those crimes are. . . .” (Citations omitted; internal quotation marks omitted.) State v. Anderson, 212 Conn. 31, 36-37, 561 A.2d 897 (1989); State v. Gabriel, 192 Conn. 405, 414, 473 A.2d 300 (1984).

The state seeks to avoid this conclusion through the application of several general principles of criminal procedure. First, the state contends, because a short form information gives a defendant only minimal data on the offense charged; see State v. Frazier, 194 Conn. 233, 236, 478 A.2d 1013 (1984); the term “sale" in the information was no more than a generic reference to the statutory offense, General Statutes § 21a-278 (b), and not an allegation as to the manner in which the offense was committed. Next, the state posits, since it is the function of the bill of particulars to limit the state to proving that the defendant committed the offense in the manner described; State v. Thomas, 210 Conn. 199, 210, 554 A.2d 1048 (1989); it was proper to instruct the jury on possession of narcotics with intent to sell because that is what the state had to prove in order to obtain a conviction under § 21a-278 (b) in light of the bill of particulars. Finally, the state contends, because the jury must have been aware that the information names only the general offense and because the jury must be presumed to have followed the court’s instructions on possession of narcotics with intent to sell, the jury verdict was properly one of guilt of possession of narcotics with intent to sell, notwithstanding the use of the “sale” language in the verdict.

Even if we were to accept this somewhat troubling argument, we would nonetheless be compelled to reverse the defendant’s conviction. The state’s argument is premised on a proper instruction on the charge of possession of narcotics with intent to sell. In its purported instructions on possession of narcotics with intent to sell, however, the court instructed the jury that it could find the defendant guilty if it found (1) that he possessed a substance, and (2) that the substance was a narcotic. In explaining the elements, the trial court did not instruct the jury that the defendant not only had to possess a narcotic substance but had to do so with an intent to sell. “[T]he failure to instruct a jury on an essential element of a crime charged is error because it deprives the defendant of the right to have the jury told what crimes he is actually being tried for and what the essential elements of those crimes are. ...” (Citations omitted; internal quotation marks omitted.) State v. Anderson, supra, 36-37.

The judgment is reversed and the case is remanded for a new trial on the charge of sale of narcotics by a person who is not drug-dependent.

In this opinion the other judges concurred.

       General Statutes § 21a-278, entitled “Penalty for illegal manufacture, distribution, sale, prescription or administration by non-drug-dependent person,” provides, in subsection (b), for a mandatory minimum sentence for “[a]ny person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives, or administers to another person any narcotic substance, hallucinogenic substance other than marihuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in [Chapter 420b], and who is not at the time of such action a drug-dependent person . . . .”

       The defendant’s other claims require little discussion. His claim regarding an evidentiary chain of custody objection was withdrawn in his reply brief. His challenge to the court’s instruction on the jurors’ duties is without merit. A virtually identical claim was rejected in State v. McFadden, 25 Conn. App. 171, 175-77, 593 A.2d 979, cert. denied, 220 Conn. 906, 593 A.2d 971 (1991).

       The substitute information also charged the defendant with possession of a narcotic substance in violation of General Statutes § 21a-279 (a). After instructions on the elements of that offense, the defendant was found guilty as charged. Although the trial court accepted this verdict, it did not sentence the defendant for the possession conviction presumably because the assistant state’s attorney informed the court that possession of a narcotic substance is a lesser included offense of the sale conviction. Possession of a narcotic substance, however, is not a lesser included offense of the crime of sale of narcotics. State v. Devino, 195 Conn. 70, 485 A.2d 1302 (1985); compare State v. Williams, 12 Conn. App. 225, 232, 530 A.2d 627 (possession of narcotics is a lesser included offense of possession with intent to sell).
      “In a criminal proceeding, there is no final judgment until the imposition of a sentence.” State v. Ayala, 222 Conn. 331, 339, 610 A.2d 1162 (1992). Because no final judgment has as yet been rendered with regard to the possession charge, it is not properly part of this appeal.


author: O’Connell, J.

text:
    State of Connecticut v. Robert Mercer
    (10890)
    Dupont, C. J., O’Connell and Landau, Js.
    Argued October 26
    decision released December 15, 1992

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

      Julia DiCocco Dewey, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, scad Robert J. O’Brien, supervisory assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, following a jury trial, of two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). The defendant claims that the evidence was insufficient to prove that he used a dangerous instrument while committing a robbery. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. About 8:45 p.m. on February 12, 1991, the defendant ran up behind Betsy Galan and Wanda Woolfolk on a New Haven street and ordered them to take off their coats. Both refused to comply until the defendant pulled a .38 caliber revolver from his pocket and pointed it at them. Woolfolk quickly removed her coat but Galan resisted. The defendant threatened to pistol whip Galan if she did not comply with his demands. When Galan continued to resist, the defendant turned the gun around and, grasping it by the barrel, pressed the butt against Galan’s cheek. He then started tapping Galan’s face with the butt. As Galan continued to resist, the defendant became angry and began striking her face harder and harder. Upon receiving a particularly forceful blow, Galan surrendered her coat. Thereafter, while pointing his gun at the women, the defendant threw down Woolfolk’s coat and ran off with Galan’s. The gun was never recovered. Galan, who knew the defendant by sight, furnished his name to the New Haven police and identified his photograph.

The state had the burden of proving that the defendant committed a robbery by using or threatening the use of a dangerous instrument. General Statutes § 53a-134 (a) (3). The defendant argues that the state failed to carry its burden because it did not demonstrate that the gun was capable of inflicting serious physical injury.

We commence our analysis by distinguishing between the terms “deadly weapon” and “dangerous instrument,” both terms of art specifically defined in the penal code. The relevant portion of General Statutes § 53a-3 (6) defines deadly weapon, as “any weapon whether loaded or unloaded, from which a shot may be discharged . . . .” General Statutes § 53a-3 (7) defines a dangerous instrument as “any instrument, article or substance which, under the circumstances in which it is used . . . or threatened to be used, is capable of causing death or serious physical injury . . . .”

Although a pistol was involved in this case, it was not employed for its designed purpose of firing a bullet; rather, it was used as a bludgeon to strike Galan and as the instrument for a threatened pistol whipping. Accordingly, contrary to the defendant’s claim, it is irrelevant that there was no evidence that the pistol was capable of discharging a shot.

We focus on the issue of whether, under the facts of this case, the pistol was a dangerous instrument. The state does not claim that serious physical injury was in fact caused to either victim. The state was required to prove only that “ ‘the instrument possessed the potential for causing either death or serious physical injury under the circumstances in which it was used.’ ” (Emphasis added; internal quotation marks omitted.) State v. Vuley, 15 Conn. App. 586, 588, 545 A.2d 1157 (1988). An injury does not have to be actually inflicted. State v. Jones, 173 Conn. 91, 95, 376 A.2d 1077 (1977).

Because a dangerous instrument may be an ordinary object not designed to cause death or serious physical injury; State v. Osman, 21 Conn. App. 299, 307, 573 A.2d 743 (1990), rev’d on other grounds, 218 Conn. 432, 589 A.2d 1227 (1991); each case must be individually examined to determine whether, under the circumstances in which the object is used or threatened to be used, it has the potential for causing serious physical injury. See State v. Vuley, supra. We do not examine its dangerous capabilities in the abstract. State v. Grant, 177 Conn. 140, 146 n.5, 411 A.2d 917 (1979).

Whether the gun used in the present case was, under all the circumstances, capable of causing serious physical injury presented a question of fact for the jury. Our review of the record satisfies us that there was sufficient evidence to support the jury’s finding that the defendant used or threatened the use of a dangerous instrument during the course of a robbery.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime ... he ... (3) uses or threatens the use of a dangerous instrument. . . .”

       Originally, the defendant also claimed illegality in the failure of the police to preserve certain 911 tapes. The recently decided case oí State v. Cain, 223 Conn. 731, 613 A.2d 804 (1992), held that 911 tapes are not “statements” that require preservation. The defendant concedes that Cain controls and has withdrawn this claim.
      The defendant’s insufficiency of evidence claim pertains only to the robbery of Betsy Galan.

       General Statutes § 53a-3 (4) defines serious physical injury as “physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.”

       For the history of the distinction between “deadly weapon” and “dangerous instrument,” see the decision of this court in State v. Osman, 21 Conn. App. 299, 573 A.2d 743 (1990), rev’d on other grounds, 218 Conn. 432, 589 A.2d 1227 (1991).


author: Lavery, J.

text:
    State of Connecticut v. Bruce Jones
    (11056)
    Dupont, C. J., Lavery and Freedman, Js.
    Argued October 2
    decision released December 15, 1992

      Joseph J. Romanello, deputy assistant public defender, for the appellant (defendant).

      Jack W. Fischer, deputy assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, Warren Murray, assistant state’s attorney, and John McKinney, law student intern, for the appellee (state).
   Lavery, J.

The defendant appeals from his conviction after a trial to the court, on one count of risk of injury to a child, General Statutes § 53-21. The defendant claims that § 53-21 is unconstitutionally vague as applied to the facts of this case. We disagree, and affirm the judgment of the trial court.

The trial court could reasonably have found the following facts. On August 21, 1991, Shirleen Jones (Jones) and her four year old son Carl were driven to the defendant’s home in Norwalk by her boyfriend. The defendant is the child’s father and Jones’ husband. Jones and the defendant were involved in a divorce and custody suit at the time these events took place. Jones asked her boyfriend to park the car a few blocks from the defendant’s house to avoid an encounter between the defendant and her boyfriend. Jones and her son walked to the defendant’s house and went inside. The defendant asked her if they could speak about Carl and they went into another room where the defendant allegedly hit Jones in the face and told her she could not leave until he was ready for her to leave. When she went to say goodbye to Carl, the defendant allegedly threw her onto the bed, began choking her, and made threatening remarks.

As Jones eventually left the house, the defendant said he would lead her and her boyfriend back to the parkway with his car. When Jones arrived at the car, she said to her boyfriend, “Let’s get in the car and let’s go.” Her boyfriend got in the driver’s side, while she got in the passenger’s side. The defendant got into his own car, placing Carl in a car seat. The defendant attempted to block the way of Jones and her boyfriend, and then engaged them in high speed pursuit. Eventually, the defendant caught up with Jones and her boyfriend and rammed his vehicle into their vehicle three times. No one was injured.

Norwalk police officer Thomas Rozinski was traveling in a marked car on Connecticut Avenue in Norwalk when he observed the defendant’s vehicle strike the red Mazda in which Jones and her boyfriend were riding. The Mazda drove off at a high speed, followed by the defendant. Rozinski stopped the defendant. The defendant emerged from his car and ran toward the police vehicle. The police officer told the defendant to return to his vehicle, but he refused. The officer thought he saw someone waving a pistol inside the defendant’s car. He drew a weapon, and advanced towards the vehicle, only to find Carl waving a cap gun. The defendant was very agitated and generally uncooperative. Rozinski placed the defendant under arrest.

Testifying on his own behalf, the defendant admitted having an animated discussion with Jones, but denied hitting or choking her. He claimed that he followed Jones because he wanted to see what her boyfriend looked like, and because he wanted to buy cigarettes. The defendant also denied ramming his car into the Mazda, claiming instead that he hit the other car only once when they were involved in an accident.

At the close of evidence, the court noted that it did not find the defendant’s testimony credible in “several respects” and that it was “somewhat inconsistent.” The court also found the defendant’s attitude at the beginning of the incident to be antagonistic, that the defendant had operated his car in an erratic manner, and that there was at least one impact confirmed by the police officer.

Before reaching the merits of this appeal, we must first settle the question of reviewability. The state maintains that the defendant’s constitutional claim of vagueness is unreviewable on appeal because it was not raised in the trial court. The state notes that the defendant did not brief his claim for entitlement to review under our Supreme Court’s holding in State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). “We conclude that, despite this procedural default, a claim of unconstitutional vagueness falls within the parameters of State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973), and therefore warrants appellate scrutiny, because it implicates the fundamental due process right to fair warning and the record is adequate to facilitate review.” State v. Schriver, 207 Conn. 456, 459, 542 A.2d 686 (1988), citing State v. McKenna, 11 Conn. App. 122, 125, 525 A.2d 1374, cert. denied, 205 Conn. 806, 531 A.2d 939 (1987).

“The constitutional injunction that is commonly referred to as the void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement.” State v. Schriver, supra, 459-60. Furthermore, “[a] vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” (Internal quotation marks omitted.) Id., 460, quoting Grayned v. Rockford, 408 U.S. 104, 108-109, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). When considering a challenge to a statute on vagueness grounds, we must determine whether the law “forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application . . . (Internal quotation marks omitted.) State v. Perruccio, 192 Conn. 154, 158-59, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984), quoting State v. Pickering, 180 Conn. 54, 60, 428 A.2d 322 (1980). The defendant claims that § 53-21 is so vague in its meaning as to fail to give fair warning. To determine if a statute gives adequate warning as to what activity is prohibited, we may turn to the common law, legal dictionaries, or treatises. State v. Perruccio, supra.

Section 53-21 proscribes “two general types of behavior likely to injure physically or to impair the morals of a minor under sixteen years of age: (1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor’s moral or physical welfare . . . and (2) acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being.” (Citations omitted.) State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963); see also State v. Falangio, 24 Conn. App. 300, 588 A.2d 644, cert. denied, 218 Conn. 911, 591 A.2d 813 (1991); State v. Trujillo, 12 Conn. App. 320, 531 A.2d 142, cert. denied, 205 Conn. 812, 532 A.2d 588 (1987); State v. Sullivan, 11 Conn. App. 80, 525 A.2d 1353 (1987); State v. Newton, 8 Conn. App. 528, 513 A.2d 1261 (1986). Under the statute’s first category, it is not necessary that the defendant touch any part of the victim’s body to violate § 53-21. State v. Palangio, supra, 303. “[T]he creation of a prohibited situation is sufficient.” State v. Perruccio, supra, 159-60. In the present case, the defendant placed his child in his car, pursued another vehicle at high speed, and then rammed into the other vehicle. The possibilities for injury to the child were myriad.

The defendant claims that the statute does not adequately distinguish between acceptable and unacceptable behavior. On appeal, he still maintains that he had an “accident” with the vehicle in which his wife and her companion were riding. Relying on State v. Schriver, supra, 460, in which our Supreme Court ruled that § 53-21 was void for vagueness as applied to the facts of that case, the defendant argues that § 53-21 “impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis.” (Internal quotation marks omitted.) The factual issue of whether the defendant was involved in an accident, or instead deliberately ran his vehicle into the'other vehicle was decided by the trier of fact after hearing all of the evidence. We will not disturb that finding on appeal. The facts of this case, as determined by the trier of fact, show that the defendant took actions that the statute clearly proscribes. He created a situation inimical to the child's physical welfare.

The defendant also relies on Schriver in claiming that the judicial gloss on § 53-21 does not give adequate warning that the actions he took were prohibited by the statute. The Schriver court concluded, after reviewing several previous § 53-21 cases, that the “authoritative judicial gloss . . . limits the type of physical harm prohibited by § 53-21 to instances of deliberate, blatant abuse.” State v. Schriver, supra, 466. Measured by that standard, the conviction of the defendant in Schriver could not stand. The court went on, however, to state: “At the outset, we note that the defendant in this case was charged under the second part of § 53-21. To have violated the statute, then, the defendant had to have committed acts directly perpetrated on the person of a minor, whether the alleged impairment was mental or physical. Under different circumstances, the state might elect to prosecute under the first part of§ 53-21, which proscribes the ‘deliberate indifference to, acquies cence in, or the creation of situations inimical to the minor’s moral or physical welfare . . . .’’’(Emphasis added.) Id., 467; see also State v. Erzen, 29 Conn. App. 591, 596, 617 A.2d 177 (1992). In the present case, the defendant was charged by a short form information and he did not request a bill of particulars or a statement of essential facts. The burden rests on the defendant to request a bill of particulars and a statement of essential facts. State v. Vincent, 194 Conn. 198, 205, 479 A.2d 237 (1984); State v. Osman, 21 Conn. App. 299, 310, 573 A.2d 743 (1990), rev’d on other grounds, 218 Conn. 432, 589 A.2d 1227 (1991); see also Practice Book §§ 625 and 831. Therefore, the defendant is precluded from relying on the judicial gloss that Schriver gave the second part of § 53-21.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53-21 provides: “injury or risk of injury to, or impairing morals OF, children. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”
      The defendant was also convicted on one count of breach of peace, General Statutes § 53a-181. He does not challenge that conviction.

       The defendant had been charged with a count of assault in the third degree, General Statutes § 53a-61, as well as breach of peace, General Statutes § 53a-181, and risk of injury. The court found the defendant not guilty on the assault count. At the very least, Shirleen Jones and the defendant had an animated discussion regarding Carl before she left.


author: Dupont, C. J.

text:
    In re Jennifer G.

    (11092)
    Dupont, C. J., Lavery and Freedman, Js.
    Argued September 23
    decision released December 15, 1992

      Bruce A. Tonkonow, state’s advocate, for the appellant (petitioner).

      Ann M. Guillet, assistant public defender, with whom, on the brief, was Deborah Smith, law student intern, for the appellee (respondent).

       In accordance with the spirit and intent of General Statutes $ 46b-142 (b) and Practice Book j 4166B.2, 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.

   Dupont, C. J.

The state appeals from a judgment of the trial court dismissing, on its own motion, one count of a petition of delinquency. The petition alleged, inter alia, that the respondent was a delinquent child for having committed the offense of risk of injury to a child in violation of General Statutes § 53-21. The court’s dismissal was made after it heard the state’s case-in-chief. We affirm the judgment of the court.

The respondent, a fifteen year old, was operating a motor vehicle in a lawful manner when she was stopped by a police officer in connection with the investigation of a domestic dispute. She had no driver’s license and was arrested for operating a motor vehicle without a license. During the stop, the officer noticed a baby in an infant carrier between the driver’s seat and the front passenger’s seat. Because the infant carrier was not secured to anything, the officer also arrested her for failure to have a child restraint system. The case was referred to the Superior Court for Juvenile Matters.. The delinquency petition charged her with operating a motor vehicle without a license. Thereafter, the charge of risk of injury to a child was added by the state’s advocate. The charge of failure to have a child restraint system was not one of the bases of the delinquency petition. Jennifer G. was adjudicated a delinquent based on her admission that she had operated a motor vehicle without a license.

The court dismissed the risk of injury count because the risk of injury statute was not intended “to cover this sort of situation, and that there is another statute which is specifically passed to cover this situation. And, looking at these two statutes together, both valid statutes, the court believes that the proper statute to cover this kind of situation is [General Statutes §] 14-100a (d).”

The state has framed its issue on appeal as being whether a trial court may substitute its discretion for that of the prosecutor by dismissing a charge on its own motion based on the court’s determination that a different charge would have been more appropriate. The state thus views the issue as implicating a prosecutor’s ability to choose the charges for prosecution without interference by a court.

It is well settled that a “prosecutor has broad discretion in determining what crime or crimes to charge in any particular situation.” State v. Menzies, 26 Conn. App. 674, 680, 603 A.2d 419, cert. denied, 221 Conn. 924, 608 A.2d 90 (1992); see also State v. O’Neill, 200 Conn. 268, 279-80, 511 A.2d 321 (1986); State v. Haskins, 188 Conn. 432, 473-74, 450 A.2d 828 (1982). “ ‘So long as [the prosecutor] acts within the jurisdiction of his office it is not appropriate for a court to set policy for the performance of his prosecutorial function.’ ” State v. Menzies, supra, 681, quoting State v. Haskins, supra, 474.

The respondent does not dispute that the state’s advocate, the prosecutor in this instance, has broad discretion to determine what statute to charge in any particular situation. She argues, instead, that General Statutes § 54-56 provides the court with the power to dismiss the charge. The respondent also argues that the delinquency petition, to the extent that it charges a violation of General Statutes § 53-21, was fatally defective because it charged in the disjunctive as to the alternate types of behavior prohibited by that statute. See State v. Eason, 192 Conn. 37, 470 A.2d 688 (1984). The respondent claims that either alternative ground supports the court’s judgment.

Although the respondent did not file a preliminary statement of issues for an alternative ground for affirmance of the trial court’s decision, this failure by the respondent does not preclude us from considering an alternative ground. “ ‘ “This court is authorized to rely upon alternative grounds supported by the record to sustain a judgment.” ’ ” Kelley v. Bonney, 221 Conn. 549, 592, 606 A.2d 693 (1992), quoting Latimer v. Administrator, 216 Conn. 237, 252, 579 A.2d 497 (1990). Furthermore, the state was not prejudiced by the respondent’s failure to submit a preliminary statement of issues on the alternative ground. The state could have filed a reply brief to counter the alternative ground asserted in the respondent’s brief but chose not to do so.

A court has the power to dismiss a criminal prosecution, on its own motion, if there is a fundamental legal defect in the information or a constitutional defect. State v. Carr, 172 Conn. 608, 610, 376 A.2d 74 (1977). In State v. Eason, supra, our Supreme Court held that a substitute information that charged the defendant in the disjunctive was fatally defective. In Eason, the court stated that a substitute information charging risk of injury to a child was “improperly drafted since ‘[a]n information which charges the commission of two or more offenses in the alternative is fatally defective for the reason that it does not definitely apprise the accused of the specific charge against him. Though the statute makes criminal the commission of several acts stated disjunctively, the information must charge in the conjunctive since otherwise it would be uncertain which of two or more accusations was intended.’ ” Id., 40, quoting Grasso v. Frattolillo, 111 Conn. 209, 212, 149 A. 838 (1930).

In this case, the trial court could have found that the delinquency petition contained a fundamental legal defect because the delinquency petition charged the crime of risk of injury to a child in the disjunctive and, therefore, did not give the respondent adequate notice of the charge against her. Prior to the trial, the respondent filed a motion for a bill of particulars and specifically requested clarification as to the risk of injury count. The state did not comply in writing as was requested. The respondent also alerted the state to this defect twice when the respondent made two separate motions to dismiss this count based on this defect in the delinquency petition. The court denied both of the respondent’s motions. Although the state did amend its charge against the respondent, the amended charge still contained the same fundamental legal defect. Since this defect violated the respondent’s federal and state constitutional rights to adequate notice of the charges against her, the court was within its power to dismiss this count on its own motion.

Where a trial court reaches the correct result, but has based that result on mistaken grounds, “ ‘this court has repeatedly sustained the trial court’s action if proper grounds exist to support it.’ ” Kelley v. Bon ney, supra; Amove v. Frankel, 29 Conn. App. 565, 573, 616 A.2d 1152 (1992); New London v. Zoning Board of Appeals, 29 Conn. App. 402, 409, 615 A.2d 1054 (1992). While we do not agree with the trial court’s reason for dismissal of the risk of injury count, we do agree with the respondent’s alternative argument that the delinquency petition was fatally defective. Consequently, the dismissal of the risk of injury charge was proper.

The judgment is affirmed.

In this opinion the other judges concurred.

         “[General Statutes] Sec. 54-56. dismissal of information by court. All courts having jurisdiction of criminal cases shall at all times have jurisdiction and control over informations and criminal cases pending therein and may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial.”


author: Daly, J.

text:
    State of Connecticut v. Frank Ogrinc
    (10737)
    Daly, Foti and Heiman, Js.
    Argued October 26
    decision released December 15, 1992

      William Holden, public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, was Linda Howe, assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of possession of heroin with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). The defendant claims that the trial court improperly denied (1) his motions for judgment of acquittal based on the insufficiency of the evidence adduced at trial and (2) his motion to dismiss because the notice requirements of General Statutes § 54-82c (c) were not satisfied. We disagree.

The following facts are relevant to this appeal. On June 25, 1989, at approximately 2 p.m., Bridgeport police officers John Pribesh, Jr., and Robert Bigelow were patrolling Father Panick Village in their marked cruiser when Pribesh first observed the defendant and heard him yell “five-o,” an exclamation typically used to warn drug dealers of the presence of police in the area. Bigelow also heard the warning. The defendant was walking in an area of Father Panick Village that is particularly notorious for street level drug sales. The defendant turned and walked away from the police cruiser after calling out the warning.

Pribesh knew the defendant, a project resident, having seen him there previously. From a distance of thirty feet, both officers saw what appeared to be currency in the defendant’s right hand. Pribesh noticed a small, dark object clenched in his left fist, and Bigelow testified that he noticed that the defendant’s left hand was tightly clenched. Both officers observed the defendant make a backhanded tossing motion with his left hand, discarding the object under an automobile. No one else was in the area of the automobile at that time.

The officers never lost sight of the defendant when they exited their vehicle to stop him and retrieve the object. Pribesh retrieved twenty-four glassine bags tied together with an elastic band from under the front bumper of the car where the defendant had tossed the object. At the time he was arrested, five $1 bills and one $5 bill were found in his possession. The contents of ten of the glassine bags were subsequently tested at the state laboratory and were found to be heroin.

The defense presented evidence that the defendant had been in the area only long enough to get change for a $10 bill at a store near where he was arrested, and that he had been with the woman with whom he lived the whole day until his arrest. Further facts are set forth in this opinion as necessary.

I

The defendant’s first claim is that the trial court improperly denied his motion for judgment of acquittal because the evidence adduced at trial was insufficient to sustain his conviction under General Statutes § 21a-278 (b). The defendant asserts that the state failed to prove beyond a reasonable doubt that he possessed narcotics and that he intended to sell narcotics, two elements of the crime of possession of narcotics with the intent to sell by a person who is not drug-dependent.

“The two-part test for appellate analysis of a claim of evidentiary insufficiency is well established. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. State v. Montanez, 219 Conn. 16, 19, 592 A.2d 149 (1991). It should also be noted that [i]n this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . State v. Alien, 216 Conn. 367, 381, 579 A.2d 1066 (1990).” (Internal quotation marks omitted.) State v. Salz, 26 Conn. App. 448, 458, 602 A.2d 594, cert. granted, 222 Conn. 901, 606 A.2d 1329 (1992). “This court will not reweigh the evidence or resolve questions of credibility in making such a determination.” State v. Melillo, 17 Conn. App. 114, 117, 550 A.2d 319 (1988). “It is within the province of the jury to draw reasonable and logical inferences from the facts proven. State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985).” (Internal quotation marks omitted.) State v. Ruth, 16 Conn. App. 148, 154, 547 A.2d 548 (1988), cert. denied, 209 Conn. 827, 552 A.2d 434 (1989).

A

“In order to prove illegal possession of a narcotic substance, it is necessary to establish that the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it. State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985); State v. Parent, [8 Conn. App. 469, 473, 513 A.2d 725 (1986)].” (Internal quotation marks omitted.) State v. Melillo, supra, 117-18. The defendant contends that this case is comparable to State v. Brunori, 22 Conn. App. 431, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 611 (1990), where we found the evidence was insufficient to support a conviction of possession of narcotics in violation of General Statutes § 21a-279 (a) and possession of drug paraphernalia in violation of General Statutes § 21a-267 (a). In Brunori, the officers observed the defendant bend down behind a car with his arm stretched and then stand up. They found narcotics and drug paraphernalia near where the defendant had bent down. Because proof of possession requires more than the mere presence of the defendant near the contraband; id., 436-37; the fact that the officers could testify only that the defendant bent down behind the car as if he was discarding something was insufficient to support a conviction. Here, the officers actually observed the toss. “If a person is observed by a police officer discarding a package of some sort, and the officer then determines that the abandoned property is contraband, such evidence, although admittedly not as strong as that obtained in a continuous surveillance case, would, nevertheless pass muster for purposes of denying a motion for judgment of acquittal.” Id., 437.

Here, the officers actually saw the defendant toss an item under the front of a car. The object was immediately retrieved from underneath the front of the automobile and it was found to be twenty-four glassine bags of heroin. As in State v. Melillo, supra, 116-118 (as part of a staged narcotics sale, the police observed the defendant walking around a tree in which narcotics were later found), the evidence here established the defendant’s possession of heroin.

Thus, after viewing the evidence in the light most favorable to sustaining the verdict, we find that the jury could reasonably and logically have found from the evidence elicited at trial that the defendant possessed the heroin.

B

The defendant also claims that the element of intent to sell was not proven beyond a reasonable doubt. Proof of intent is usually established through circumstantial evidence from which the jury may draw reasonable and logical inferences. State v. Napoleon, 12 Conn. App. 274, 284, 530 A.2d 634, cert. denied, 205 Conn. 809, 532 A.2d 78 (1987), citing 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). “[W]e note that [i]t is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving circumstantial evidence.” (Internal quotation marks omitted.) State v. Napoleon, supra, 284-85.

“The quantity of narcotics found in the defendant’s possession [is] probative of whether the defendant intended to sell the drugs.” State v. Jennings, 19 Conn. App. 265, 270, 562 A.2d 545, cert. denied, 212 Conn. 815, 565 A.2d 537 (1989). Also indicative of the defendant’s intent to sell narcotics is the manner in which the narcotics are packaged. State v. Ruth, supra, 155; State v. Napoleon, supra, 284. Evidence demonstrating that the defendant was present in a known drug trafficking area further suggests an intent to sell. State v. Ruth, supra, 155.

The defendant possessed twenty-four glassine bags, each containing heroin, held together by an elastic band in a manner that allows drug dealers easily to peel off a bag for a sale. The officers testified that these small glassine bags are commonly used to package heroin for sale and testimony before the jury established that a buyer normally will purchase one to two bags at a time. The value of the heroin the defendant possessed was $240. The manner of packaging and the quantity of the heroin are consistent with street level heroin sales and are indicative of the defendant’s intent to sell the heroin.

Furthermore, the defendant’s conduct was incriminating. When the defendant observed the police cruiser he warned other drug dealers of its presence, he immediately turned away from the cruiser, and he attempted to conceal the heroin he held in his left hand before tossing it underneath the car. The officers testified that this behavior is normal practice for narcotics dealers trying to avoid being apprehended. These events occurred in an area known for narcotics sales. This evidence sufficiently demonstrated the defendant’s intent to sell beyond a reasonable doubt.

Therefore, after our review of this record, we find that there was more than sufficient evidence to allow the jury to have found beyond a reasonable doubt that the defendant was guilty of possession of a narcotic substance with intent to sell.

II

The defendant claims that the charge against him should have been dismissed by the trial court as a penalty for the department of correction’s failure to issue him written notice of his right to a speedy trial pursuant to General Statutes § 54-82c. On September 18, 1990, the defendant filed a motion to dismiss the charge claiming that he had been incarcerated since September 11, 1989, as a prisoner sentenced on unrelated charges, but had never been notified of his right to a speedy trial on the pending narcotics charge of this case in contravention of the notification requirements of General Statutes § 54-82c (c).

There is no dispute that approximately one year elapsed from the date of his incarceration until the commencement of his trial on September 18, 1990, and that he was never given notice pursuant to General Statutes § 54-82c. “[T]he statute places clear and unambiguous obligations on state correction officials. Whenever a person has begun a term of imprisonment in a correctional institution in this state, § 54-82c (c) provides in pertinent part that a ‘warden, community correctional center administrator or other official having custody of the prisoner shall promptly inform him in writing of the source and contents of any untried indictment or information against him concerning which the warden, administrator or other official has knowledge and of his right to make a request for final disposition thereof.’ This provision, by its very terms, places two related but independent obligations on correction officials: (1) to inform a prisoner of charges pending against him; and (2) to inform the prisoner of his right to request speedy disposition of those charges.” State v. Milton, 26 Conn. App. 698, 704, 603 A.2d 750, appeal dismissed, 224 Conn. 163, 617 A.2d 460 (1992).

The question before us, therefore, is whether the correction officials fulfilled both obligations of the statute. “ ‘On the few occasions that we have had the opportunity to apply General Statutes [§ 54-82c] . . . we have required strict compliance with the statutory notice procedures.’ ” Id., 711. The failure of correction officials to notify the defendant of the charge pending against him and of his right to demand a speedy disposition of the pending charge violated the provisions of that act. We must now consider whether dismissal is the appropriate remedy for the failure of the state to provide notice, as the defendant claims.

The remedy for the state’s noncompliance with General Statutes § 54-82c (c) has not been mandated by the legislature. Id., 712 n.6. In contrast, General Statutes § 54-82d provides for the remedy of dismissal if the state fails to try the defendant within 120 days after his statutory right to a speedy trial is invoked. Thus, to determine the proper remedy for the failure of the correction officials to notify the defendant of his rights under § 54-82c (c), we have relied on the balancing principles set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), a case in which the Supreme Court considered the proper remedy for the deprivation of the constitutional right to a speedy trial. State v. Milton, supra, 712-13, citing State v. Herring, 210 Conn. 78, 89, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989).

We rely on the four factors weighed in Barker v. Wingo, supra, to determine the proper remedy in this case. Those factors include “the length of the delay, the reasons for the delay, the defendant’s assertion of his right, and the prejudice to the defendant. Id., 530; State v. Herring, supra, 89-90; State v. Foshay, [12 Conn. App. 1, 13, 530 A.2d 611 (1987)].” State v. Milton, supra, 713. “None of these factors standing alone would demand a set disposition; rather, it is the total mix which determines whether the defendant's right was violated. State v. Nims, [180 Conn. 589, 592, 430 A.2d 1306, (1980)].” State v. Flowers, 198 Conn. 542, 544, 503 A.2d 1172 (1986). The trial court denied the defendant’s motion to dismiss after balancing the factors. The trial court’s conclusions will stand unless we find that they are clearly erroneous. State v. Flowers, supra, 544. We find that the trial court’s decision was not clearly erroneous because the defendant failed to elicit evidence that supported the factors found in Barker v. Wingo, supra.

As to the first factor, there is no question that the length of the delay here was approximately fifty-three weeks, a time period longer than the 120 day period referred to in § 54-82d. This length of time, however, is not excessive when compared to cases such as State v. Flowers, supra, where the delay was eighteen months. As in Flowers, the delay here does not indicate a clear violation of the defendant’s right to a speedy trial. As the trial court noted, the defendant has not provided a clear record to explain the delay, much less to demonstrate the state’s fault for it. In considering the third factor, we find it significant, as did the trial court, that the defendant did not assert his right to a speedy trial until the day his trial commenced when the motion to dismiss was filed. Thus, this factor weighs in favor of neither party. State v. Milton, supra, 714-15.

We now consider the fourth factor, prejudice, which is considered the linchpin of the speedy trial claim. State v. Flowers, supra, 551. “In light of the lack of any evidence of record that the conditions of the defendant’s incarceration including his ability to participate in particular prison programs was adversely affected by the delay caused by the statutory violation, we must resolve the final Barker factor against the defendant.” State v. Milton, supra, 716. Thus, the trial court properly concluded that “the evidence does not . . . bear out any great prejudice.”

We conclude that under these circumstances, dismissal is not the appropriate remedy for the violation of the defendant’s right to statutory notice under General Statutes § 54-82c (c). The trial court properly denied the defendant’s motion to dismiss the charge against him.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marihuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

       The Supreme Court compared State v. Flowers, 198 Conn. 542, 503 A.2d 1172 (1986), to other cases with delays ranging from nineteen months to over five years where no violation was found. Id., 551.


author: Heiman, J.

text:
    State of Connecticut v. George Maxwell
    (10006)
    Dupont, C. J., Daly and Heiman, Js.
    Argued October 28
    decision released December 15, 1992

      Thomas Ullmann, public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were David Gold, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault in the third degree in violation of General Statutes § 53a-61 (a) (2), as a lesser included offense of assault in the first degree in violation of General Statutes § 53a-59 (a) (1), and burglary in the first degree in violation of General Statutes § 53a-101 (a) (2). The defendant claims that the judgment is fatally flawed in that (1) the state failed to produce sufficient evidence to prove the essential elements of the crime of burglary in the first degree, specifically those of intent to commit a crime, namely larceny as alleged in the information, and of inflicting bodily injury in the course of committing the offense, (2) the trial court improperly refused to admit into evidence the factual predicate underlying the victim’s prior criminal convictions for violent crimes where such evidence would prove the victim’s propensity for violence on the issue of initial aggressor in a claim of self-defense, and (3) the trial court incorrectly admitted rebuttal evidence concerning the defendant’s employment status, the number of his dependents and the fact that he was not receiving unemployment compensation during the quarter during which the crime was committed. We affirm the trial court’s judgment.

The jury could reasonably have found the following facts. On September 17, 1988, the victim, Sixto Diaz, together with his girl friend, Maria Garcia, and their children, were in their house, a two-story, single family residence located at 272 Davenport Avenue in New Haven. Sometime between 11:30 p.m. and midnight, Diaz was asleep in an upstairs bedroom and Garcia was in the living room of the house watching television, while her eleven year old daughter was in the kitchen.

Garcia heard her daughter say something and heard a knocking at the kitchen door. Garcia went into the kitchen, again heard knocking at the door and asked in Spanish who was there. The person identified himself as “Jorge.” Garcia said that she knew no one by that name. The person then responded in English that he was “George.” Garcia said that she did not know anyone by that name either.

The person outside the door, later identified as the defendant, George Maxwell, began to pound and forcefully kick the door, breaking a large portion of the glass above the doorknob, and inserted his hand through the hole attempting to reach the lock. Fearing that the defendant would unlock the door, Garcia instructed her daughter to go upstairs and wake Diaz. She then retreated to the living room.

Diaz’ daughter woke Diaz and told him that someone was attempting to break into the house. Diaz ran downstairs, grabbed a broom handle and entered the kitchen. The defendant still had his hand inside the door and Diaz struck his hand with the broom handle. The defendant immediately withdrew his arm.

Concerned that the defendant might attempt to enter the house through the front door, Diaz ran to the front of the house. He opened the front door and observed the defendant at the bottom of the stairs approaching the house. Diaz went down the front steps and struck the defendant several times on the arm and shoulder with the broom handle. The defendant attempted to grab Diaz and they struggled through an iron gate onto a grassy area adjacent to the street. Diaz continued in his attempts to strike the defendant with the broom handle when Diaz suddenly stumbled. As the defendant gestured upward, Diaz observed a shiny object in the defendant’s hand. The object, which was either a knife or a screwdriver at least one and one-quarter inches long, pierced the eye from the front to the back causing an injury that resulted in Diaz’ loss of sight in that eye. The injury had to have been caused by a sharp object and not by blunt trauma such as a punch or a fall against an object.

After striking Diaz with the sharp object, the defendant ran from the scene and the police and an ambulance were summoned. As the medical personnel were placing Diaz in the ambulance, he observed the defendant standing across the street and identified him to a police officer as his assailant. Shortly thereafter, the defendant was arrested.

At the time of his arrest, the defendant had $40 in his possession. The defendant had left employment on September 3,1988, two weeks before the incident, and reported no additional income for 1988.

I

The defendant first claims that the evidence was insufficient to sustain a verdict of guilty on the charge of burglary in the first degree. The defendant asserts that the evidence was insufficient with respect to the element of the offense that requires proof that the defendant intended to commit a crime within the building. He also asserts that the evidence was insufficient with respect to the element that requires proof that the bodily injuries inflicted occurred in the course of committing the offense. We disagree.

To determine the sufficiency of the evidence to sustain a conviction, we apply a twofold test. State v. Cruz, 28 Conn. App. 575, 578, 611 A.2d 457 (1992); State v. Uribe, 14 Conn. App. 388, 392-93, 540 A.2d 1081 (1988). We first construe the evidence in the light most favorable to sustaining the verdict. State v. Haddad, 189 Conn. 383, 385, 456 A.2d 316 (1983); State v. Cruz, supra. “We then determine whether, ‘from that evidence and all the reasonable inferences which it yields, [the jury] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt.’ ” State v. Cruz, supra. In this examination, we consider “whether the [trier] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt . . . .” (Internal quotation marks omitted.) State v. Haddad, supra, 387; State v. Cruz, supra, 578-79. “In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ...” (Citations omitted; internal quotation marks omitted.) State v. Sommerville, 214 Conn. 378, 390, 572 A.2d 944 (1990), quoting State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985). “ ‘It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.’ ” State v. Sinclair, supra, 576-77.

When applying the sufficiency of the evidence test, the court must ensure that “ ‘[e]ach essential element of the crime charged ... be established by proof beyond a reasonable doubt, and although it is within the province of the [trier] to draw reasonable, logical inferences from the facts proven, [it] may not resort to speculation and conjecture. . . . Where it cannot be said that a rational trier of fact could find guilt proven beyond a reasonable doubt, then, a conviction cannot constitutionally stand, as it is violative of due process under the fourteenth amendment. . . . [T]he burden rested upon the prosecution to prove the guilt of the accused, i.e., to prove each material element of the offense charged beyond a reasonable doubt.’ (Citation omitted.)” State v. Cruz, supra, 579.

We turn first to the defendant’s claim that the evidence was not sufficient to support a guilty verdict for burglary in the first degree in violation of General Statutes § 53a-101 (a) (2). He argues that there was insufficient evidence to support a finding beyond a reasonable doubt that he intended to commit the crime of larceny in the building. We do not agree.

Additional facts are necessary to a resolution of this assertion. The evidence established that neither the victim nor Garcia or any other resident of the household was acquainted with the defendant in any way. No evidence was presented to suggest any prior dealings between the victim and the defendant or between the defendant and any other resident of the household. Thus, the jury could reasonably have drawn an inference that the defendant had no purpose of revenge or personal animus to motivate him to enter the Diaz house. The jury could couple this with other evidence in order to find that the defendant attempted entry with a larcenous intent. Specifically, as evidence of his larcenous intent the jury could have considered the fact that the defendant attempted to break into the house through the back door by smashing a hole in the glass and reaching in to unlock the door. See State v. Sinclair, supra, 578. Additionally, the fact that the defendant undertook to make a forced entry into the Diaz house permitted the jury to draw an inference that the defendant’s purpose was theft. State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985); State v. Perez, 10 Conn. App. 279, 291, 523 A.2d 508, cert. denied, 203 Conn. 810, 525 A.2d 524 (1987). The jury could also have considered the fact that the defendant carried a screwdriver or other pointed instrument as additional evidence of larcenous intent since such implements may be used for prying or as weapons if the offender encounters resistance to his larcenous attempt. See State v. Zayas, supra.

Juries are not required to leave common sense at the courtroom door. Id. From the facts established and the reasonable inferences that can be drawn therefrom, it was not unreasonable for the jury to have inferred that the defendant possessed the requisite intent to commit larceny in the Diaz house. “ ‘Common experience tells us that an [attempted] unlawful entry into a dwelling ... is not without purpose. Nor are people accustomed to [attempt] to enter homes of strangers through a [locked door by smashing the glass to reach the lock] for innocent purposes. To any person of ordinary intelligence, the expected by-product of a surreptitious unlawful entry into the home of another is theft.’ ” State v. Perez, supra, quoting State v. Zayas, supra, 617.

We are satisfied that the evidence was sufficient for the jury to have found that the state had established beyond a reasonable doubt the element of intent to commit a larceny as the crime that the defendant intended to commit within the building.

In the same vein, the defendant further asserts that the evidence was insufficient to establish beyond a reasonable doubt that the bodily injury inflicted on the victim occurred in the course of committing the offense. The defendant posits that the bodily injury occurred only after the defendant terminated his attempt to enter the building, had broken off the encounter and was off the premises of the victim. He asserts that the altercation that occurred was a separate and distinct occurrence initiated by the victim and was thus unrelated to his original attempt to break and enter the building. We do not agree.

General Statutes § 53a-101 (b) specifically provides that “[a]n act shall be deemed ‘in the course of committing’ the offense if it occurs in an attempt to commit the offense or flight after the attempt or commission.” Since the defendant had not succeeded in his attempt at escaping and he was obviously visible to the victim, we cannot say that the jury improperly drew an inference that the injury to the victim occurred while the defendant was engaged in making his escape. General Statutes § 53a-101 (b).

The defendant’s assertion implies that once an individual has broken off his attempt to enter a building and has left the immediate vicinity, he has broken off the crime even though he is still in a position to be seen by his victims. Once this occurs, the defendant argues that § 53a-101 (b) is no longer applicable. He posits that his effort to break off his attempt to enter the building and his subsequent attempted flight remove his conduct from that which is prohibited by the statute. We do not agree.

The issue of whether the bodily injury was inflicted during flight after the attempt or commission of the offense is an issue of fact to be determined by the jury under proper instructions by the court. The jury’s function is to consider evidence, to draw logical deductions and to make reasonable inferences from facts proven. State v. Gabriel, 192 Conn. 405, 421, 473 A.2d 300 (1984); State v. Johnson, 26 Conn. App. 433, 435-36, 602 A.2d 36, cert. denied, 221 Conn. 916, 603 A.2d 747 (1992). The defendant makes no claim that the trial court improperly instructed the jury regarding the application of § 53a-101 (b). We are satisfied that the jury could have reasonably found on the evidence that the bodily injury was inflicted on the victim by the defendant while he was in flight in order to avoid apprehension and detention.

Statutes are to be construed so that they carry out the intent of the legislature. State v. Belton, 190 Conn. 496, 505, 461 A.2d 973 (1983); State v. Campbell, 180 Conn. 557, 561, 429 A.2d 960 (1980). The fact that penal statutes must be strictly construed is well established, but the application of common sense to the language of the statutory enactment is not to be excluded in a manner that would involve an absurdity or frustrate the design of the legislature. State v. Belton, supra, 505-506; State v. Ryerson, 20 Conn. App. 572, 578, 570 A.2d 709, cert. denied, 214 Conn. 806, 573 A.2d 318 (1990). In determining the meaning of a statute, where there is genuine uncertainty as to how it should be applied, we are permitted to examine the societal problem that the statute addresses by examining the legislative history. State v. Belton, supra, 506; State v. Campbell, supra, 562.

It is clear that the purpose of burglary statutes is to prevent the kind of entry into buildings that would terrorize the occupants. State v. Belton, supra. General Statutes § 53a-101 is designed to increase punishment for the situation where the terror or risk to the occupants is increased by the presence of weapons or where bodily injury is inflicted. See id., 506-507. Thus, to conclude that, by the simple expedient of running beyond the property line and abandoning his attempt to enter the building, a defendant was no longer in flight from his attempt, would create the kind of bizarre result that we are mandated to avoid in statutory construction. Id., 507.

The evidence more than adequately established beyond a reasonable doubt that the defendant inflicted bodily injury on the victim in the course of committing the offense. The defendant’s claim to the contrary is without merit.

II

The defendant next asserts that the trial court improperly excluded evidence of the facts underlying the victim’s convictions for crimes of violence. While the defendant was permitted to elicit from the victim the fact that he had been convicted of certain crimes, the defendant was precluded by the trial court from eliciting testimony concerning the factual predicate underlying those convictions. The defendant claims that the factual basis for the convictions was admissible to show the violent character of the victim in order to establish that the victim was the initial aggressor. We disagree that the trial court improperly excluded this evidence.

The defendant bases his claim of the admissibility of the factual basis underlying the convictions on his reading of State v. Miranda, 176 Conn. 107, 405 A.2d 622 (1978). Even if we assume without deciding that State v. Miranda, supra, applies to an assault case as well as a homicide case; State v. Gooch, 186 Conn. 17, 21, 438 A.2d 867 (1982); the defendant’s reliance on Miranda is misplaced. Our Supreme Court set forth the rule that “in a homicide prosecution where the accused has claimed self-defense, the accused may show that the deceased was the aggressor by proving the deceased’s alleged character for violence. The deceased’s character may be proved by reputation testimony, by opinion testimony, or by evidence of the deceased’s convictions of crimes of violence, irrespective of whether the accused knew of the deceased’s violent character or of the particular evidence adduced at the time of the death-dealing encounter.” State v. Miranda, supra, 114. Nothing in that holding of the Supreme Court permits the view that this allows an exploration of the factual predicate for the convictions. While the victim’s violent character may be established by proof of his convictions of crimes of violence; id.; it may not be proven by evidence of other specific acts. State v. Webley, 17 Conn. App. 200, 206, 551 A.2d 428 (1988).

The admissibility of evidence designed to show the violent nature of the victim’s character lies within the broad discretion of the trial court. State v. Mason, 186 Conn. 574, 580-81, 442 A.2d 1335 (1982). The resolution of issues relating to relevancy and remoteness of such evidence is left to the trial court’s sound discretion. State v. Payne, 219 Conn. 93, 112, 591 A.2d 1246 (1991). We will not disturb the trial court’s ruling absent a clear abuse of its discretion. Id.; State v. Pollitt, 205 Conn. 61, 91, 530 A.2d 155 (1987).

Our review of the record convinces us that the trial court properly excluded the alleged facts underlying the victim’s prior criminal convictions. The defendant’s right to prove the victim’s violent character was properly protected by the trial court’s admission of the victim’s prior convictions into evidence. The trial court did not abuse its discretion.

Ill

The defendant next asserts that the trial court improperly admitted as rebuttal evidence testimony that he had terminated employment several weeks prior to the incident that he had no reported wages or applications for unemployment compensation during the remainder of the quarter and that, at that time, he had a wife and eight children as dependents. The defendant claims that this evidence was irrelevant, immaterial and highly prejudicial. We do not agree.

Additional facts are necessary to a proper resolution of this claim. In an apparent attempt to eliminate need as a basis for an inference of an attempted larceny, the defendant, in his case-in-chief, introduced evidence that at the time of his arrest he had in his possession the sum of $40 for which he received a receipt from the correction facility. His claim for its admissibility was that it rebutted the inference of larcenous intent. In an attempt to negate the thrust of the defendant’s evidence, the state introduced in rebuttal, evidence concerning the defendant’s job status, his failure to apply for unemployment compensation and the number of his dependents. The trial court properly admitted this evidence.

“ ‘[Rjebuttal evidence is that which refutes the evidence presented by the defense, rather than that which merely bolsters the state’s case. . . State v. Williamson, 206 Conn. 685, 698, 539 A.2d 561 (1988), quoting State v. Lisella, 187 Conn. 335, 337, 445 A.2d 922 (1982). Here, the defendant offered evidence in his casein-chief concerning the amount of money that he claimed was on his person on the date of the offense. This evidence was offered by the defendant in order to ask the jury to draw the inference that he lacked the requisite larcenous intent. He himself “opened the door” to evidence concerning his financial condition. See State v. Simino, 200 Conn. 113, 123, 509 A.2d 1039 (1986). Thus, evidence concerning the financial demands on the defendant as well as his lack of income was relevant to rebut the claim. See id.

In ruling on the relevancy of any evidence, including evidence offered in rebuttal, the trial court is vested with a wide and liberal discretion. State v. Buster, 27 Conn. App. 263, 275, 606 A.2d 9, cert. granted, 222 Conn. 909, 608 A.2d 692 (1992). The decision to admit rebuttal evidence is left to the exercise of sound discretion on the part of the trial court. State v. Canty, 223 Conn. 703, 715-16, 613 A.2d 1287 (1992); State v. Lisella, supra. We will reverse a trial court’s exercise of its discretion regarding the determination of relevancy only where the abuse of discretion is manifest or where an injustice appears to have been done. State v. Howard, 187 Conn. 681, 685, 447 A.2d 1167 (1982).

Nothing in the record supports the claim that the trial court abused its discretion in admitting the rebuttal evidence and the defendant’s claim to the contrary is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-101 provides in pertinent part: “(a) A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and ... (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.
      “(b) An act shall be deemed ‘in the course of committing’ the offense if it occurs in an attempt to commit the offense or flight after the attempt or commission. ...”


author: Landau, J.

text:
    Town of Southington et al. v. Mary Pierce et al.
    (10620)
    Dupont, C. J., O’Connell and Landau, Js.
    Argued October 26
    decision released December 15, 1992

      Kenneth John Laska, for the appellants (defendants).

      Robert A. Izzo, with whom, on the brief, was Mark Sciota, for the appellees (plaintiffs).
   Landau, J.

The dispositive issue in this case is whether the trial court’s ruling on the plaintiffs’ writ of injunction was a final judgment for purposes of appeal to this court. We hold that there was no final judgment and dismiss the appeal.

The underlying litigation arose out of efforts by the named plaintiff, the town of Southington (town), to enforce cease and desist orders directed at the defendants, Mary Pierce and Susan Segal, prohibiting them from using their property for commercial parking purposes. The town, in its complaint, alleged (1) that the subject property is located in a residential zone and thus the defendants’ commercial use violates the zoning regulations of the town, and (2) that the defendants have not complied with the cease and desist orders. The town sought, inter alia, a “permanent injunction barring the defendants from a commercial operation.”

In their answer, the defendants admitted that they are the owners of the property and they essentially denied all other allegations. They alleged seven special defenses asserting that their use of the property is a valid nonconforming use, that the town is equitably estopped from bringing the action for injunctive relief, that the defendants are unable to comply with the cease and desist orders, and that the regulations are unconstitutional. The defendants also filed a counterclaim sounding in inverse condemnation, claiming that the town is attempting to deprive the defendants of their interests in the land without just compensation in violation of their constitutional rights. The defendants claimed money damages, costs and attorney’s fees.

On August 27, 1991, the trial court granted an injunction but gave the defendants time to comply with the trial court’s order. The defendants filed a motion for articulation raising eleven issues for consideration. The motion for articulation requested, inter alia, that the trial court “[sjtate what is meant by ‘appropriate curative action is put into effect by the appropriate zoning authority in Southington’ ” and “whether or not the Court considered the claims of the Defendants in their counterclaim and if so what did the Court find with respect to this claim.” In its response to the motion for articulation, the trial court found that, except for paragraph six of the motion, further articulation was unnecessary because the court’s decision was based on the threshold question of exhaustion of administrative remedies. As to paragraph six, the court found that “ ‘appropriate curative action’ would include a zoning variance, an appropriate zone change or an agreement with the town zoning authorities modifying the existing cease and desist orders or the temporary injunction granted.” (Emphasis added.) Notice of this decision was issued November 25, 1991. The defendants then filed a motion for review of their motion for articulation. That motion was dismissed by this court as untimely on January 9, 1992. This appeal followed.

On appeal, the defendants claim that the trial court improperly issued the injunction (1) without regard to due process because notice was not served on the defendants when the cease and desist order was issued, and (2) where there was no way for the court to enforce the injunction.

Because we conclude that the injunction issued by the trial court was a temporary injunction, there is no final judgment and the appeal is dismissed.

At oral argument, both parties, although recognizing jurisdictional considerations, sought to argue their claims. Appellate jurisdiction cannot, however, be conferred on this court by agreement. State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983). The right to appeal is ordinarily limited to parties aggrieved by final judgments. General Statutes §§ 51-197a and 52-263; Practice Book § 4000; State v. Audet, 170 Conn. 337, 342, 365 A.2d 1062 (1976). Absent a statutory exception not relevant here, “an order granting or denying a temporary injunction is considered interlocutory and therefore is not an appealable final judgment.” Ebenstein & Ebenstein, P.C. v. Smith Thibault Corporation, 20 Conn. App. 23, 25, 563 A.2d 1044 (1989); see Doublewal Corporations. Toffolon, 195 Conn. 384, 392, 488 A.2d 444 (1985). Therefore, before considering the merits, we must determine whether the appeal has been taken from a final judgment. Stamford s. Kovacs, 29 Conn. App. 105, 109, 612 A.2d 1229 (1992).

“An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, supra, 31; see also Daginella v. Foremost Ins. Co., 197 Conn. 26, 30, 495 A.2d 709 (1985).

The first alternative, termination of a separate and distinct proceeding, requires that the order appealed be severable from the central cause to which it is related so that the main action can “proceed independent of the ancillary proceeding.” State v. Parker, 194 Conn. 650, 654, 485 A.2d 139 (1984). A decision affecting the merits of a controversy could not be separate and distinct. Id., 653. It is clear that neither the town’s claim for a permanent injunction in the complaint nor the defendants’ claim for money damages in their counterclaim could go forward if we were to hold that the temporary injunction could be appealed. This injunction was merely a “step along the road to a final judgment” and was not “independent of the main action.” Id., 653-54; Dewart v. Northeastern Gas Transmission Co., 139 Conn. 512, 514, 95 A.2d 381 (1953); Enfield v. Hamilton, 110 Conn. 319, 322, 148 A.2d 353 (1930). The first Curcio alternative is, therefore, not satisfied.

Nor does this interlocutory order satisfy the second Curcio alternative, that the rights of the parties be so concluded “that further proceedings cannot affect them.” The rights of the parties in this case have not been concluded because further proceedings on the claim for an injunction and the defendants’ claim for damages are bound to affect those rights. In re Juvenile Appeal (82-AB), 188 Conn. 557, 559, 452 A.2d 113 (1982); New Haven Redevelopment Agency v. Research Associates, Inc., 153 Conn. 118, 120, 214 A.2d 375 (1965).

The nature of the injunction granted by the trial court on August 27, 1991, is unclear as to its permanency. While the town, in its complaint, requested a permanent injunction and the trial court granted an injunction, the court also gave the defendants time to comply with its order and ordered the injunction to remain in effect “until such time as appropriate curative action is put into effect by the appropriate zoning authority . . . .” What the trial court sought to accomplish in its August 27 order was made very clear in its response to the defendants’ motion for articulation in which it stated, “ ‘appropriate curative action’ would include . . . modifying the existing cease and desist orders or the temporary injunction granted.” (Emphasis added.) Injunctions are extraordinary and harsh remedies employed by courts of equity; see Jones v. Foote, 165 Conn. 516, 521, 338 A.2d 467 (1973); Leo Foundation v. Cabelus, 151 Conn. 655, 657, 201 A.2d 654 (1964); and the trial court, in light of the uncertainty of its original order, clarified the nature of its ruling so that the parties would have no doubt as to its intent. Such a judgment, being interlocutory in character, does not fall within one of the narrowly defined exceptions to the general prohibition.

Even if the temporary injunction were deemed to be permanent in nature, the record indicates no reason for the failure to complete the proceedings in the trial court by resolving the claim for damages on the counterclaim. The defendants did not withdraw or abandon their claim for relief. The “trial court’s memorandum of decision, filed after the hearing, considered only the question of a temporary injunction.” Ebenstein & Ebenstein, P.C. v. Smith Thibault Corporation, supra, 26. Therefore, failure of the trial court to resolve the defendants’ claim for damages prevents the rights of the parties from being concluded since the resolution of the counterclaim is bound to affect those rights. “Because the lack of a final judgment is a jurisdictional defect, we must dismiss the appeal” for lack of jurisdiction. Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 86, 495 A.2d 1063 (1985).

The appeal is dismissed.

In this opinion the other judges concurred.

       General Statutes § 52-471 provides: “granting op injunction, (a) Any judge of any court of equitable jurisdiction may, on motion, grant and enforce a writ of injunction, according to the course of proceedings in equity, in any action for equitable relief when the relief is properly demandable, returnable to any court, when the court is not in session. Upon granting of the writ, the writ shall be of force until the sitting of the court and its further order thereon unless sooner lawfully dissolved.
      “(b) No injunction may be issued unless the facts stated in the application therefor are verified by the oath of the plaintiff or some competent witness.”
      There is uncertainty as to the proper terminology regarding an injunction. This statute uses the terms “writ,” “application” and “motion.” See Practice Book §§ 196 and 197 regarding motions. The trial court describes this action as a “motion for injunction.” See footnote 2, infra. Corpus Juris Secundum defines an injunction as “a writ framed according to the circumstances of the case commanding an act which the court regards as essential to justice, or restraining an act which it esteems contrary to equity and good conscience.”

       The trial court stated: “Since commercial parking is a use not permitted in an R-40 residential zone in which the premises are located, the motion for injunction must be granted. However, injunction is an equitable remedy. The issues involved in this case have been pending for some time. Defendants claim, in equity, that it would be difficult to prevent unauthorized parking on the subject premises and that there have been no prior efforts by either the city of Bristol or the town of Southington to enforce such prevention of parking. Some time may be necessary to enable defendants to effectively comply.
      “Accordingly, the motion for injunction is granted to become effective September 30,1991, such injunction to remain in effect until such time as appropriate curative action is put into effect by the appropriate zoning authority in Southington.”

       A motion for review must be filed within ten days from the issuance of the order sought to be reviewed. Practice Book § 4053. Notice was issued on November 25, 1991. The defendants had to file their motion for review on or before December 5, 1991. This motion for review was untimely filed on December 11, 1991.

       Immediate review of temporary injunctions is authorized for appeals arising out of labor disputes; General Statutes § 31-118; or for appeals involving matters of “substantial public interest and in which delay may work a substantial injustice.” General Statutes § 52-265a.

       See footnote 2, supra.