text:
    Napier Talton v. Warden, State Prison
    (11055)
    O’Connell, Foti and Schaller, Js.
    Argued October 1
    decision released December 7, 1993

      James Moreno, special public defender, for the appellant (petitioner).

      John A. East III, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher A. Alexy, assistant state’s attorney, for the appellee (respondent).
   Foti, J.

On February 19, 1982, the petitioner was convicted of one count of sexual assault in the first degree and one count of being a persistent dangerous felony offender. He was sentenced to a term of imprisonment of twenty-five years to life. Our Supreme Court affirmed the judgment of conviction. State v. Talton, 197 Conn. 280, 497 A.2d 35 (1985). On October 11, 1991, the petitioner filed a second amended petition for a writ of habeas corpus, in which he alleged that he is innocent, and that he had been denied his state and federal constitutional rights to the effective assistance of trial counsel. The habeas court heard testimony on December 2, 3, 4 and 13,1991, and made extensive factual findings in a memorandum of decision dated January 3, 1992, before dismissing the petition.

I

The petitioner first claims that the habeas court improperly concluded that the petitioner failed to satisfy the test for evaluating recantation testimony, as established by the United States Second Circuit Court of Appeals in United States ex rel. Sostre v. Festa, 513 F.2d 1313, 1317 (2d Cir.), cert. denied, 423 U.S. 841, 96 S. Ct. 72, 46 L. Ed. 2d 60 (1975). He argues that the habeas court improperly (1) found the victim’s recantation testimony not credible and (2) concluded that the petitioner’s due process rights were not violated.

The facts relevant to this issue are as follows. At the habeas hearing, the petitioner presented the testimony of the following witnesses: the victim; Derrick Washington; Willie Bowman; Daniel Presnick, the petitioner’s trial counsel; and two expert witnesses. The state presented testimony from two witnesses: John Durham, the assistant state’s attorney who had prosecuted the petitioner in 1982; and Joseph Zampano, an investigator with the state’s attorneys’ office.

The victim, who, at the time of the rape in 1981, was seventeen years old and the mother of a two year old son, gave testimony before the habeas court recanting her trial testimony. She testified that, contrary to her statements to the police and various other persons, and contrary to her testimony before the grand jury and at trial, the petitioner did not force her to engage in sexual intercourse. She testified that the petitioner, instead, had only touched her breast and kissed her without her permission. The victim testified that she falsely accused the petitioner of forcing her to engage in nonconsensual sexual intercourse because his actions angered her and because at the time of the incident she considered such actions to constitute rape.

She also testified that, sometime prior to the 1982 trial, she went to the state’s attorney’s office to withdraw her complaint against the petitioner, but that someone there told her that she either had to press charges or go to jail for perjury. The victim testified that because she was afraid of going to jail and leaving her baby, she gave the testimony that she now recants. She further stated that she had not had any contact with the petitioner or his family since 1982, and that in the nine years since the trial the only persons to whom she admitted lying at the trial were the petitioner’s habeas counsel and his investigator, who made an unsolicited visit to her on November 21, 1991. At that time, the victim gave them the following signed and sworn statement:

“I, [victim’s name], of Poplar Street, New Haven, Connecticut, made the following statement of my own free will, without promise, threats or force: Napier Taitón did not have sexual intercourse with me on the date in question. On the night of the alleged attack, all Mr. Taitón did was kiss me and touch me.”

The victim also testified that she had refused to sign a prepared statement offered to her by the petitioner’s counsel, that she instead gave her own statement, and that she told the petitioner’s counsel that she would not come to the habeas hearing. Ultimately, she testified that she appeared at the hearing only because her appearance had been compelled by a subpoena issued by the petitioner.

On cross-examination at the habeas hearing, the victim admitted that, at the time of the incident in 1981, she had gone to a neighbor’s apartment and told the neighbor that the petitioner had forced her to engage in sexual intercourse. She also admitted telling the police, the rape crisis center counselor, and a nurse at Yale-New Haven Hospital that the defendant had forced her to engage in intercourse. In addition, the victim testified that, contrary to her trial testimony, the petitioner had not removed her underwear. She denied being told that the gynecological examination conducted after the rape revealed the presence of sperm and said that the entire “rape kit” had gone directly to the police. She also conceded that she might have testified at trial that the petitioner fathered her second child as a result of the rape. At the habeas hearing, however, she denied that he was the child’s father.

Further, on cross-examination the victim acknowledged that one week prior to the habeas hearing and subsequent to giving her statement to the petitioner’s representatives, she spoke with Chris Alexy, the state’s attorney handling this habeas action, and investigator Zampano. She did not tell them at that time that she had lied at trial. She claimed that she did not offer this important information because “[she] didn’t feel like [she] had to.” She also admitted that, at the same time, she told Alexy that there was “no way [she] wanted to see [the petitioner] out of jail, not after what he did to [me].”

The victim also testified on cross-examination, that the “legal aid assistant” and the petitioner’s investigator assured her that she would not “get in trouble” if she recanted. The victim testified further that she did not remember telling Alexy during their meeting the previous week that the petitioner’s trial counsel offered her money during the trial to “change her story.” She also testified that she did not remember telling Alexy that she would not come to the habeas hearing to get the petitioner out of jail, but that she “would come up here to keep him in.”

Upon examination by the habeas court, the victim admitted that, although she was angry with the petitioner for his actions, she did not want him to spend a long time in jail for what he had done. She had wanted “them to take him to jail right then and there and let him stay for a month or two, but [she] didn’t want a life — [she] didn’t even know he had life.” She further testified: “I never heard no more about it. I didn’t know this man had life until you said it this morning. But I never intended to put him in jail that long.”

The petitioner also offered the testimony of Washington, a longtime friend of the victim’s, and Bowman, the victim’s boyfriend some years prior to the incident, to corroborate the defendant’s innocence and the victim’s recantation. Both witnesses possessed criminal records.

The habeas court, in considering Sostre, recognized that it established a three-pronged test to determine if a witness’s recantation necessitates a new trial. The test requires that the habeas court (1) be reasonably well satisfied that the trial testimony is false, (2) find that the jury might have found the petitioner not guilty without the testimony at issue, and (3) conclude that the petitioner was surprised by the false testimony and was not able to meet it or did not know of its falsity until after the trial. United States ex rel. Sostre v. Festa, supra.

The habeas court in this case concluded that the petitioner had not satisfied either the first or third prong of the Sostre test. The court found that the victim’s testimony at the habeas proceeding lacked credibility. Further, the petitioner was not taken by surprise at the trial by the victim’s “false” testimony because “the petitioner’s defense [at trial] was that the victim was lying and his counsel’s strategy was to establish inconsistencies in [the victim’s] statements and testimony together with inconsistencies between her testimony and the evidence . . . .” In addition, the habeas court found that an overwhelming amount of corroborating evidence was produced during the grand jury proceeding and at trial.

The petitioner asks that we adopt the Sostre test and reverse the decision of the habeas court and find its conclusion, that the victim’s recantation was not credible, to be clearly erroneous because it is not supported by the record. The parties agree that we are not bound by Sostre.

Contrary to the parties’ assertions, our Supreme Court has addressed this issue. The court articulated the following conditions under which a petition for a new trial should or may be granted on the grounds of newly discovered evidence, i.e., recantation: “ ‘(a) The court is reasonably well satisfied that the testimony given by a material witness is false, (b) That without it the jury might have reached a different conclusion, (c) That the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial.’ ” Pradlik v. State, 131 Conn. 682, 687, 41 A.2d 906 (1945), quoting Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928). This test is identical to the one articulated in Sostre. We conclude, therefore, that the habeas court applied the correct analysis.

As we have recently stated, “[i]n a habeas appeal, we cannot and will not disturb underlying historical facts found by the habeas court unless they are clearly erroneous. Siano v. Warden, 31 Conn. App. 94, 95, 623 A.2d 1035, cert. denied, 226 Conn. 910, 628 A.2d 984 (1993); Copas v. Warden, 30 Conn. App. 677, 682, 621 A.2d 1378, cert. denied, 226 Conn. 901, 625 A.2d 1374 (1993). We determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. Siano v. Warden, supra; Copas v. Warden, supra. We do not examine the record to see if the trier of fact could have reached a contrary conclusion. Siano v. Warden, supra; Copas v. Warden, supra". Davis v. Warden, 32 Conn. App. 296, 301, 629 A.2d 440, cert. denied, 227 Conn. 924, 632 A.2d 701 (1993).

The habeas court reasonably found that the victim’s testimony at the habeas corpus proceeding lacked credibility. The court concluded that it was unbelievable that the victim, who had been sexually active from the age of eleven or twelve, and who was already the mother of one child at the time of the sexual assault, could claim that when the petitioner touched her breast and kissed her without consent, she believed that he had raped her. Further, the court found that “her motive for attempting to convince the habeas trier that she lied in 1982,” was apparently that she felt sorry “that Taitón is serving so lengthy a sentence as a result of her prosecution.”

It is for the habeas court, as the fact finder in this case, to determine the credibility and the effect to be given the testimony. Siano v. Warden, supra, 104; State v. Grant, 177 Conn. 140, 142, 411 A.2d 917 (1979). “[I]t is the court’s right to consider evidence, draw logical deductions and make reasonable inferences from the facts proven.” State v. Rivera, 30 Conn. App. 224, 231, 619 A.2d 1146, cert. denied, 225 Conn. 913, 623 A.2d 1024 (1993). We cannot retry the matter, nor can we pass on the credibility of a witness. State v. Myers, 193 Conn. 457, 473, 479 A.2d 199 (1984). The habeas court was in the best position to observe the witnesses, to determine their motivations for testifying, and to pass on the credibility of each. The facts as set forth in the memorandum of decision are supported by the evidence; we cannot conclude that those findings are clearly erroneous. We conclude, therefore, that the habeas court could have reasonably determined that the victim’s trial testimony was not false.

Since we have determined that the court did not act unreasonably in finding that the victim’s recantation lacked credibility, it follows that the petitioner has failed to meet the first prong of the Pradlik test. We, therefore, find it unnecessary to discuss the court’s ruling on the third prong of the test — whether the petitioner was taken by surprise when the allegedly false testimony was given at trial. Nor do we need to address the petitioner’s claim that the habeas court improperly found that there was an overwhelming amount of evidence corroborating the victim’s original testimony produced during both the grand jury proceeding and the trial.

II

The petitioner also claims that the habeas court improperly concluded that he was not denied his state and federal constitutional rights to the effective assistance of counsel. He argues that his trial counsel (1) failed to conduct an adequate pretrial investigation, (2) did not investigate or produce certain witnesses at trial, and (3) neglected to impeach the victim with her grand jury testimony. The habeas court concluded that the petitioner did not prove that the failure of his trial counsel to interview certain witnesses fatally prejudiced him, or that a different verdict would have resulted had he attempted to impeach the victim at trial with her grand jury testimony.

The petitioner’s trial counsel, Daniel Presnick, testified at the habeas proceeding. Presnick testified that his primary theory at trial was that there were discrepancies in the victim’s testimony that contradicted other evidence. He attempted to highlight these inconsistencies and thereby to raise a reasonable doubt as to the petitioner’s guilt. The thrust of Presnick’s strategy was to attack the victim’s credibility. He testified that the petitioner had wanted him to advance a theory that the victim “was deliberately fabricating as a result of some sort of romantic motive which never really panned out, or as a result of an extortion to collect money.” He pointed out to the petitioner that the latter theory was not credible since the petitioner had very little money. Presnick testified that he did call a witness who testified that he saw the petitioner and the victim “holding hands and looking as if they might have had a romantic relationship.”

Presnick testified that, in preparing to cross-examine the victim, he reviewed the grand jury minutes, his notes, the petitioner’s statements, and information that had been gathered by the public defender’s office. He testified that he believed he had spoken with several members of the petitioner’s family. He also interviewed the victim’s brother, who was incarcerated at the time, because the petitioner claimed that the brother could provide exculpatory information. Presnick testified that the victim’s brother seemed afraid of the petitioner and offered only ambiguous answers during their interview. Presnick decided not to call the brother because he felt that the brother would not be a helpful witness and he was not confident that the brother was a witness he “could put on the stand and not be surprised by.” Sometime during the course of the trial, the petitioner complained to the court that the victim’s brother had provided an exculpatory affidavit, and the petitioner asked the court to compel the brother’s appearance and testimony. The trial court denied the request because it noted that the purported affidavit was in the petitioner’s handwriting and unsigned.

Presnick also testified that the petitioner provided him with a list of several other possible witnesses who the petitioner claimed could provide testimony damaging to the victim’s character and veracity. Among these witnesses were Washington, Bowman, John Manley and England Gambel. Presnick testified that he turned over this information to his investigator, but that he eventually decided not to interview the possible witnesses himself or present their testimony at trial because of their lengthy criminal records. In fact, all of these possible witnesses were incarcerated at the time of trial. Presnick was convinced that because of their extensive criminal records they would have no credibility with the jury. He feared any attempt to impugn the victim’s credibility through the testimony of these men would only increase the jury’s sympathy for the victim. Presnick also was concerned that the testimony of the possible witnesses would disclose the petitioner’s extensive criminal record. He and the petitioner had already decided that the petitioner would not testify for that reason.

The right to counsel, as guaranteed by the United States constitution and the Connecticut constitution, means the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “That right to counsel, however, is the right to effective assistance and not the right to perfect representation.” Siano v. Warden, supra, 97. “Our Supreme Court has adopted the two-pronged analysis of Strickland v. Washington, supra, to determine if counsel’s assistance was ineffective. Bunkley v. Commissioner of Correction, 222 Conn. 444, 455, 610 A.2d 598(1992); Sekou v. Warden, 216 Conn. 678, 690, 583 A.2d 1277 (1990). Under this analysis, to prevail on a constitutional claim of ineffective assistance of counsel, the petitioner must demonstrate both (1) deficient performance and (2) actual prejudice. Bunkley v. Commissioner of Correction, supra; Hull v. Warden, 32 Conn. App. 170, 174, 628 A.2d 32 (1993); Siano v. Warden, supra.

“To satisfy the first prong, that his counsel’s performance was deficient, the petitioner must establish that his counsel made errors so serious that [he] was not functioning as the counsel guaranteed the [petitioner] by the Sixth Amendment. . . . The petitioner must thus show that counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances. . . . We will indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . Siano v. Warden, supra; Hull v. Warden, supra; Copas v. Warden, supra, 683-84.

“To satisfy the second prong, that his counsel’s deficient performance prejudiced his defense, the petitioner must establish that counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable. . . . The petitioner must establish that, as a result of his trial counsel’s deficient performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal. . . . The second prong is thus satisfied if the petitioner can demonstrate that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . Siano v. Warden, supra, 98; Bunkley v. Commissioner of Correction, supra, 454-55.” (Citations omitted; internal quotation marks omitted.) Davis v. Warden, supra, 303.

The habeas court concluded that the petitioner failed to satisfy the second prong of Strickland. Our review of the whole record leads us to conclude that it cannot reasonably be said that the habeas court’s determination was not legally and logically supported. Two of the four possible witnesses testified before the habeas court and were not found to be convincing. We disagree that the record supports the petitioner’s claim that he established that “but for” the failure of his trial attorney to interview or investigate the testimony of the possible witnesses or to present their testimony, the jury probably would have reached a different verdict.

The petitioner also claims that the habeas court improperly concluded that he was not prejudiced by his trial attorney’s failure to utilize the victim’s grand jury testimony to impeach her trial testimony. He further claims that the habeas court improperly concluded that the trial testimony was highly consistent with the grand jury testimony. Our review of the record leads us to conclude that the findings of the habeas court were not clearly erroneous and that any inconsistencies that may have been present between the two testimonies were minor, inconsequential, and nonprobative of the issue of credibility.

We, therefore, conclude that the evidence supports the habeas court’s finding that the petitioner failed to establish prejudice even assuming that he had successfully established a deficient performance by trial counsel.

The judgment is affirmed.

In this opinion the other judges concurred.

       The underlying facts of the petitioner’s convictions are set forth in State v. Talton, 197 Conn. 280, 497 A.2d 35 (1985).

       Counsel for the petitioner noted, prior to the victim’s testifying, that perjury is a class D felony in Connecticut and that the statute of limitations for a class D felony is five years. “The trial took place in 1982. The five years would have expired in 1987.1 do not think that there is any criminal liability to this witness, as a result.” Regardless, the court appointed counsel for the victim to protect her rights and advise her of the possible consequences of her testimony.

       The state has also questioned whether newly discovered evidence in the form of the victim’s recantation testimony is proper grounds for habeas corpus relief. A recantation of material testimony likely to affect the verdict rises to the level of a due process violation. Due to the lapse of time, it may be raised only by a petition for a writ of habeas corpus, which may be the only vehicle available for a petitioner to establish a miscarriage of justice. See Safford v. Warden, 223 Conn. 180, 190-91, 191 n.13, 612 A.2d 1161 (1992).

       We note our Supreme Court’s description of “the overwhelming nature of the evidence which corroborated the complainant’s testimony.” State v. Talton, 197 Conn. 280, 291, 497 A.2d 35 (1985).

       The petitioner has not provided an independent analysis for his state constitutional claim; therefore, we will not review it. State v. Glenn, 30 Conn. App. 783, 785 n.3, 622 A.2d 1024 (1993).


source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    State of Connecticut v. Roberto Morales
    (11565)
    Foti, Lavery and Heiman, Js.

      Argued September 28
    decision released December 7, 1993

      Temmy Ann Pieszak, assistant public defender, for the appellant (defendant).

      Donald A. Browne, state’s attorney, with whom, on the brief, was John Smriga, assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, rendered after a trial to the court, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l), robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), and threatening in violation of General Statutes § 53a-62 (a) (l). On appeal, the defendant asserts that (1) the trial court improperly denied his motion to dismiss for lack of a speedy trial, (2) he was deprived of his right to due process and a fair trial under the state constitution by the unavailability of exculpatory evidence, and (3) he was deprived of his right to due process by the prosecution’s use of evidence from a previous plea bargain that was withdrawn. We affirm the judgment of the trial court.

The trial court could reasonably have found the following facts. On December 30, 1990, the victim was at the Pembroke Grill on Pembroke Street in Bridgeport. She left the grill at approximately 11:45 p.m., walked down Pembroke Street and turned left onto East Main Street. While on East Main Street, she heard someone following her. She stopped at a phone booth and was approached by the defendant. The defendant, who had a Spanish accent, asked if she was calling the police. She said no and pretended to call her boyfriend. A person in a tow truck then pulled up next to the phone booth. The victim asked the driver to give her a ride because she believed the defendant was going to hurt her, but he refused, stating that the defendant was his relative. The driver and the defendant then began to talk to each other. Meanwhile, the victim began to walk down Seymour Street toward Kossuth Street. On Seymour Street, she again saw the defendant following her. She walked down Kossuth Street toward the thruway. When the victim reached an Interstate 95 underpass, the defendant grabbed her and punched her in the mouth. He then pulled out a knife, placed it at her neck and pulled her beneath the underpass and through a gate. The defendant pushed the victim down on her knees, told her not to move or say anything and to keep her head down or he would kill her. The defendant dropped the knife and told the victim to unbutton and unzip her pants. The defendant then pulled off her pants and underwear, got behind her and, while holding her around the neck, bit her “on [the] butt.” The defendant then “put his thing in [her] butt.” He bit her neck and jumped off of her while telling her to keep her head down or he would kill her, and he “wiped his penis off on [the victim’s] jacket.” The defendant then pulled off her necklaces and bracelet and walked away. The victim then walked down Stratford Avenue and stopped a car that she recognized as belonging to a friend. The friend drove the victim to the Bridgeport police station. The police called an ambulance that transported the victim to Park City Hospital for treatment. After treatment, she gave a statement to Detective Annie Osika about the incident and turned over her jacket to the police.

In the spring of 1991, while a passenger on a bus, the victim saw the defendant standing on the corner of Stratford Avenue and East Main Street. She stayed on the bus for a few stops, then disembarked and called the police. The police transported the victim back to where she had seen the defendant. She identified him as her attacker, and he was arrested on March 11, 1991.

I

The defendant first asserts that the trial court improperly denied his motion to dismiss for lack of a speedy trial. We decline to afford review to this claim because it was not properly preserved before the trial court.

The following additional facts are necessary for a proper resolution of this issue. On November 20,1991, the defendant filed a motion for a speedy trial pursuant to General Statutes § 54-82m (thirty day motion). The trial court granted the motion on November 27,1991. On December 17,1991, the defendant entered an Alford, plea of guilty to a charge of robbery in the second degree in violation of General Statutes § 53a-135 (a) (2). The terms of the plea bargain included a provision that the agreement could be withdrawn if the defendant was known by an alias or had a criminal record. On January 17,1992, the guilty plea was vacated because the defendant was found to have an alias, to have prior convictions, and to be an escapee. His real name was Angel Penja. The case was then scheduled for trial no more than sixty days from that date. The defendant, acting pro se, filed a motion for a speedy trial on January 29, 1992, pursuant to General Statutes § 54-82c (120 day motion). On April 20, 1992, the defendant filed a motion to dismiss for lack of a speedy trial. He argued, on the basis of the thirty day motion, that he was entitled to a jury trial within thirty days of the January 17,1992 hearing that vacated the guilty plea. The defendant’s only claim to the trial court was that the thirty day motion was still effective despite the intervening plea bargain and plea withdrawal. The trial court denied the motion.

On appeal, the defendant now asserts that “the crux of [his] claim is the trial court’s order on January 17, 1992, that his trial begin within sixty days. This order was a reasonable attempt by the court to enforce the defendant’s speedy trial rights after the court rejected the defendant’s plea. The court’s order that the defendant be tried within sixty days of the rejection of his plea takes the instant case out of the statutory and Practice Book framework for the speedy trial of criminal cases. Once that order issued the question in this case became not whether the defendant was entitled by statute or court rule to be tried within that period, but instead whether the deadline could be ignored with im[p]unity. The defendant respectfully submits that the order could not simply be ignored and thus when that order was not rescinded or modified prior to its expiration, the defendant was entitled either to the speedy trial ordered or to relief for the violation of that order.” (Emphasis in original.) This is not the claim advanced before the trial court.

“This court will not review issues of law that are raised for the first time on appeal.” State v. Harvey, 27 Conn. App. 171, 186, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992). “We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim.” Keating v. Glass Container Corporation, 197 Conn. 428, 431, 497 A.2d 763 (1985); Biggs v. Warden, 26 Conn. App. 52, 57, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991). A party must “advance his argument of [this issue] at trial in compliance with our rules. . . .” (Citations omitted; internal quotation marks omitted.) State v. Duntz, 223 Conn. 207, 237, 613 A.2d 224 (1992). “Claims that were not distinctly raised at trial are not reviewable on appeal. . . . Accordingly, we decline to review [this claim]. We also note that [it does] not qualify for Evans-Golding review, nor [does it] rise to the level of plain error. Practice Book § 4185. . . .” (Citations omitted.) State v. Pickles, 28 Conn. App. 283, 286-87, 610 A.2d 716 (1992).

II

The defendant next asserts that he was deprived of his right to due process and a fair trial under the state constitution by the unavailability of exculpatory evidence. We are not persuaded.

The following additional facts are necessary for a proper resolution of this issue. The defendant, after assaulting the victim, “wiped his penis off on [her] jacket.” The victim gave the jacket to the police after the incident. Upon the victim’s request, the police returned the jacket to her prior to the defendant’s arrest. On May 22, 1991, the trial court granted the defendant’s motion for discovery and inspection of certain items. The motion requested the disclosure of “exculpatory information and materials.” The jacket was unavailable at trial because the Bridgeport police had returned it to the victim prior to the defendant’s arrest. The defendant claims that the failure by the Bridgeport police department to preserve the jacket violated his due process right, as guaranteed by article first, § 8, of the Connecticut constitution.

The defendant claims that the test for determining whether the state violated his state due process right is to determine the reason for the unavailability of the evidence, the materiality of the evidence, the likelihood of mistaken interpretation [due to the absence of the evidence] by witnesses or the jury, and the prejudice to the defendant caused by the unavailability of the evidence. . . .” (Citations omitted; internal quotation marks omitted.) State v. Gonzalez, 206 Conn. 213, 224-25, 537 A.2d 460 (1988). The United States Supreme Court has stated “that unless a criminal defendant can show bad faith on the part of the

police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). The effect of Youngblood on the state constitutional test to determine whether the defendant’s state due process right has been violated has never been fully explored by the courts of this state. Prior to the Youngblood decision, our courts applied a four-prong test to determine whether a prosecution should be dismissed for failure to preserve potentially exculpatory evidence in violation of the due process clause. See State v. Gonzalez, supra. After the Young-blood decision, neither we nor our Supreme Court has ever confronted the issue of whether the due process clause of our state constitution comports with the Youngblood test. See State v. Brosnan, 24 Conn. App. 473, 589 A.2d 1234 (1991), reversed in part, 221 Conn. 788, 812, 608 A.2d 49 (1992) (the defendant failed to supply an analysis of the state due proces clause for lost evidence); State v. Genotti, 220 Conn. 796, 811, 601 A.2d 1013 (1992) (“the defendant’s brief [was] void of a separate state constitutional analysis alleging a violation of his state due process rights”); State v. Leroux, 18 Conn. App. 223, 230, 557 A.2d 1271, cert. denied, 212 Conn. 809, 564 A.2d 1072 (1989) (court refused to determine if test under state constitution was different from federal test because defendant’s claim failed under four-prong analysis). Further, the Connecticut Supreme Court and this court have applied the four-prong analysis, since the Youngblood decision, only to claims of due process violations arising from a denial of a motion to suppress inculpatory evidence presented by the state about lost or destroyed evidence. See State v. Baldwin, 224 Conn. 347, 363-66, 618 A.2d 513 (1993) (defendant never claimed that evidence was potentially exculpatory); State v. Marra, 222 Conn. 506, 514-17, 610 A.2d 1113 (1992) (defendant claimed a violation of due process arising out of admission of testimony concerning lost evidence, not from destruction of evidence and Youngblood is not addressed); State v. Grillo, 23 Conn. App. 50, 57, 578 A.2d 677 (1990) (court applied four factor test set forth in State v. Leroux, supra, without mentioning Youngblood decision).

“ ‘[T]he requirements of due process are met in the trial of a person accused of crime if he has been given the benefit of a fair and impartial trial in accordance with the settled course of judicial proceedings in this state.’ . . . (Citation omitted.)” State v. Baldwin, supra, 363. “Our Supreme Court has repeatedly held that, as a general rule, ‘the due process clauses of both the United States and Connecticut constitutions have the same meaning and impose similar limitations.’ State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982); Caldor’s Inc. v. Bedding Barn, Inc., 177 Conn. 304, 314, 417 A.2d 343 (1977) .” State v. Leroux, supra, 229-30; State v. Cruz, 212 Conn. 351, 364, 562 A.2d 1071 (1989). Following this principle, the Connecticut Supreme Court adopted the four-prong test, as stated in State v. Gonzalez, supra, from a test enunciated under the federal constitution. State v. Harden, 175 Conn. 315, 326-27, 398 A.2d 1169 (1978) , citing United States v. Herndon, 536 F.2d 1027, 1029 (5th Cir. 1976). Similarly, we adopt the test stated in Arizona v. Youngblood, supra, as the test for determining whether the state violated the defendant’s state due process right by failing to preserve potentially exculpatory evidence. Therefore, “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law” under our state constitution. Id.

“ ‘[B]ad faith’ connotes a deliberate act done with intent to deprive the defense of information.” State v. Williamson, 212 Conn. 6, 16, 562 A.2d 470 (1989); State v. Baldwin, supra, 364. The defendant concedes that, in this case, the state never intended to deprive the defense of information because the defendant had not yet been arrested. The defendant urges us to find bad faith, however, where the exculpatory value of the evidence should have been known by the police. Under Arizona v. Youngblood, supra, 57 n., “[t]he presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.” The defendant must show, however, that “the police knew the semen samples would have exculpated him when they failed to perform certain tests [on the clothing] . . . .” Therefore, the defendant must show actual knowledge by the police of the definitive exculpatory nature of the evidence. “[T]his evidence was simply an avenue of investigation that might have led in any number of directions.” Id. Therefore, the defendant’s state due process right has not been violated.

III

The defendant next asserts that he was deprived of his right to due process by the prosecution’s use of evidence from a previous plea bargain that was withdrawn. We decline to afford review to this claim because it was not properly preserved before the trial court.

The following facts are necessary for a proper resolution of this issue. On December 17,1991, the defendant entered an Alford plea of guilty to the charge of robbery in the second degree in violation of General Statutes § 53a-135 (a) (2). The terms of the plea bargain included a provision that the agreement could have been withdrawn if the defendant was known by an alias or had a criminal record. On January 17, 1992, the guilty pleas were vacated because the defendant was found to have used an alias, to have prior convictions, and that he was an escapee. On April 27,1992, the trial court found the defendant guilty of sexual assault in the first degree, robbery in the first degree, and threatening. At the sentencing hearing, the prosecutor asked the court to consider the fact that “there was a change in plea in this matter. When he was first arraigned, he gave the name of Roberto Morales and date of birth and when he changed his plea, he also insisted his name was Roberto Morales. He was directly asked by the court, upon the suggestion of the state, to confirm his identity and his date of birth and they both turned out to be fictitious. That was, as I say, in response to direct questions by the court, so obviously Mr. Morales or Pena, is not particularly impressed by the authority of the court or the experience of being incarcerated.” The defendant neither objected to this statement nor argued before the trial court the impropriety of the statement. The defendant, however, requests that this court review the claim under State v. Golding, supra, and as plain error under Practice Book § 4185.

The defendant claims that Practice Book § 718 protects a constitutional right in prohibiting the use of the evidence of the change of plea at the sentencing hearing.

We conclude that the defendant cannot satisfy the second prong of Golding, since he has failed to demonstrate that his claim alleges a violation of a fundamental constitutional right. State v. Golding, supra. In the past, we have stated that “[rjobing garden variety claims of [impropriety] in the majestic garb of constitutional claims does not make such claims constitutional in nature.” State v. Ulen, 31 Conn. App. 20, 37, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993). “A sentencing judge has very broad discretion in imposing any sentence within statutory limits. . . . The court may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information [it] may consider or the source from which it may come. ...” (Citations omitted; internal quotation marks omitted.) State v. Anderson, 212 Conn. 31, 47, 561 A.2d 897 (1989). The right of due process is implicated only when the information to be considered lacks “some minimal indicium of reliability.” Id. The information stated by the prosecutor was reliable. The circumstances surrounding the change of plea was a matter of record stated in a court proceeding.

We also conclude that the use of the statements from the prior plea bargain is not entitled to plain error review. Practice Book § 4185. “Where a trial court’s action does not result in any manifest injustice, a defendant’s claim under the plain error doctrine does not warrant review. . . . Such review is reserved for truly extraordinary situations where the existence of error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Citations omitted; internal quotation marks omitted.) State v. Wright, 207 Conn. 276, 288-89, 542 A.2d 299 (1988); State v. Ulen, supra, 37-38. “Having concluded that the [statement] of which the defendant now belatedly complains did not implicate his constitutional rights so as to warrant review under State v. Golding, supra, we find that the [prosecutor’s statement] as given did not result in manifest injustice, and, therefore, does not permit plain error review.” State v. Ulen, supra, 38.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 provides in pertinent part: “(a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

       General Statutes § 53a-134 provides in pertinent part: “(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument . . . .”

        General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       General Statutes § 53a-62 provides in pertinent part: “(a) A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury . . . .”

       Additional facts will be set forth where they are relevant to the issue raised.

       General Statutes § 54-82m provides in pertinent part: “(1) [I]n any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of a criminal offense shall commence . . . when such defendant is incarcerated in a correctional institution of this state pending such trial and is not subject to the provisions of section 54-82c, the trial of such defendant shall commence within eight months from the filing date of the information or indictment or from the date of arrest, whichever is later; and (2) if a defendant is not brought to trial within the time limit set forth in subdivision (1) and a trial is not commenced within thirty days of a motion for a speedy trial made by the defendant at any time after such time limit has passed, the information or indictment shall be dismissed. . . .”

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       General Statutes § 53a-135 provides in pertinent part: “(a) A person is guilty of robbery in the second degree when he commits robbery as defined in section 53a-133 and ... (2) in the course of the commission of the crime or of immediate flight therefrom he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument.”

       General Statutes § 54-82c provides in pertinent part: “(a) Whenever a person has entered upon a term of imprisonment in a correctional institution of this state and, during the continuance of the term of imprisonment, there is pending in this state any untried indictment or information against such prisoner, he shall be brought to trial within one hundred twenty days

       “Because the defendant did not establish that ‘(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt’; State v. Golding, [213 Conn. 233, 239-40, 567 A.2d 823 (1989)]; Evans-Golding review would be improper.” State v. Pickles, 28 Conn. App. 283, 287 n.4, 610 A.2d 716 (1992).
      Practice Book § 4185 provides in pertinent part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. ...”

       The defendant does not claim a due process violation under the United States constitution.

       We limit this decision to allegations of due process violations arising out of a motion to dismiss the prosecution for failure by the state to preserve potentially exculpatory evidence. The four-prong test still applies to claims of due process violations arising out of a motion to suppress the admission of testimony about destroyed evidence. See State v. Marra, 222 Conn. 506, 516, 610 A.2d 1113 (1992).

       Having relied here on the principle that due process has the same meaning under both constitutions, we note, that we will adopt a federal standard of constitutional law when that standard “provide[s] no less individual protection than is guaranteed by Connecticut law.” State v. Marsala, 216 Conn. 150, 160, 579 A.2d 58 (1990); Horton v. Meskill, 172 Conn. 615, 641-42, 376 A.2d 359 (1977); State v. Miller, 29 Conn. App. 207, 222, 614 A.2d 1229 (1992), aff’d, 227 Conn. 363, 630 A.2d 1315 (1993). Here, the bad faith test may provide more protection to defendants than the four-prong test, even though the defendant urges us to apply the four-prong test. Without analyzing the two tests, it may be easier for the defendant to show bad faith than to show a deprivation of his due process right under the four-prong test.

       See footnote 7.

       Practice Book § 718 provides: “No evidence of the court proceedings at which a plea of guilty or nolo contendere was entered, where such plea is not accepted by the judicial authority or is later withdrawn pursuant to Sec. 719, shall be received at the trial of the case.”

       Since we conclude that the defendant has not presented a constitutional claim, we do not reach the issue of whether Practice Book § 718 applies to sentencing hearings.


author: Dupont, C. J.

text:
    Clean Corporation v. Geoffrey Foston
    (11495)
    Dupont, C. J., O’Connell and Heiman, Js.

      Argued September 21
    decision released December 14, 1993

      Mark T. Kelly, for the appellant (plaintiff).

      Geoffrey Foston, pro se, the appellee (defendant).
   Dupont, C. J.

The plaintiff, a supplier of coin operated washing machines and dryers, entered into contracts with the owners of Highland Terrace and West Orange Manor, apartment complexes in West Haven, to furnish laundry services for the complexes. The defendant subsequently purchased the apartment complexes. The defendant disconnected and removed the machines, whereupon the plaintiff sought damages for breach of “leases,” claiming that the defendant had actual knowledge of the contracts, and was bound by them as the successor in interest to the former owners.

The plaintiff appeals from the judgment of the trial court for the defendant. The plaintiff claims that the trial court improperly (1) found that the two contracts were not leases, and that they were unenforceable against the defendant, (2) refused to open the judgment to allow the introduction of parol evidence to supply proof that would have established that the contracts were leases, and (3) determined that the acceptance of benefits by the defendant under the contracts did not operate as an assumption of the agreements. We affirm the trial court’s judgment.

The Highland Terrace agreement, entitled a “Contract for Services,” granted to the plaintiff the exclusive right to install and maintain laundry machines at the complex. The contract did not contain a grant of possession to the plaintiff of any particular area of the Highland Terrace real estate. The language in the contract did not describe the agreement as a lease or the parties as landlord-tenant or lessor-lessee. The contract provided that any transfer of the apartment complex would be subject to the agreement and would be conditional on any new owner’s assumption of the contractual obligations. Dated in 1984, the contract had a term of five years. The plaintiff did not record the contract on the West Haven land records.

The West Orange Manor agreement differed from the Highland Terrace agreement. Although the payments to be made by the plaintiff were not termed “rent,” the West Orange Manor contract referred to West Orange Manor as “lessor” and to the plaintiff as “lessee.” A key provision of the agreement stated: “The lessor hereby grants to the lessee, the sole and exclusive right to install and maintain (coin operated) automatic washers and dryers in the leased space in West Orange Manor, a 120 unit building, located at Sawmill Road, West Haven, CT. The lessor shall not install, nor permit any other person or entity to install, maintain or operate any type of laundry equipment whatsoever on these premises.” The contract also provided that it was binding on the successors and assigns of West Orange Manor. Dated in 1988, the contract had a term of seven years. The plaintiff did not record the agreement on the land records.

Both contracts were still in effect when the defendant purchased Highland Terrace and West Orange Manor in 1986 and 1989, respectively. After the defendant’s purchase, the plaintiff continued to supply coin operated washers and dryers to West Orange Manor and Highland Terrace until the defendant disconnected and removed the machines in 1989 and 1990, respectively. The plaintiff then brought “breach of lease” causes of action against the defendant. At trial, the plaintiff claimed that the contracts were binding on the defendant as lease agreements, which the defendant had notice of when he purchased the two apartment complexes. The defendant denied having notice of the contracts prior to his purchase of the apartments.

The trial court stated that the issue to be decided was whether an unrecorded contract to provide coin operated washers and dryers for the benefit of tenants of a building was enforceable against a subsequent owner of the building. In the absence of Connecticut precedent, the trial court relied on New York case law for a resolution of the question. In New York, an agreement between the owner of an apartment building and the supplier of laundry equipment for the purpose of providing and servicing washers and dryers for the tenants of a building usually creates a license. Dime Laundry Service, Inc. v. 230 Apartments Corp., 120 Misc. 2d 399, 401, 466 N.Y.S.2d 117 (1983).

The trial court found that neither agreement was a lease because neither conveyed exclusive possession of a definite space to a lessee. The court did not specifically find that either agreement was a license. It did, however, state that the West Orange Manor agreement “created at best a license in the property,” and that licenses are revocable at any time. (Emphasis added.) The court held that the plaintiff was not entitled to damages for breach of the Highland Terrace agreement because it found that the defendant had produced no evidence that the defendant had assumed the obligations of the Highland Terrace contract, and, therefore, that the defendant was not bound by the contract. Thus, the trial court concluded that neither contract was enforceable against the defendant, one because it was revocable, and the other because of the plaintiffs failure to establish that the defendant assumed it.

I

The plaintiff claims that the trial court improperly found that the contracts for laundry services between the plaintiff and the previous owners of Highland Terrace and West Orange Manor were not leases. According to the plaintiff, the contracts are leases since they contain definitive terms as to rental payments and the premises to be leased. The plaintiff contends that, as leases, the contracts are binding on the defendant as a subsequent purchaser with actual notice. In the alternative, the plaintiff claims that, even if the contracts are not leases but merely licenses, they are nevertheless binding on the defendant. We disagree.

A lease is a contract under which an exclusive possessory interest in property is conveyed. Monarch Accounting Supplies, Inc. v. Prezioso, 170 Conn. 659, 663-64, 368 A.2d 6 (1976); Jo-Mark Sand & Gravel Co. v. Pantanella, 139 Conn. 598, 601, 96 A.2d 217 (1953). A lease that conveys an interest in land for more than one year is not effectual against a bona fide purchaser of the leased land unless the lease is recorded on the land records or the purchaser has actual notice of the lease prior to purchase. General Statutes §§ 47-19 and 47-10; Farmers & Mechanics Savings Bank v. First Federal Savings & Loan Assn. of Meriden, 167 Conn. 294, 301-302, 355 A.2d 260 (1974); Drazen Properties Ltd. Partnership v. E. F. Mahon, Inc., 19 Conn. App. 471, 477, 562 A.2d 1142 (1989). A bona fide purchaser is a buyer who pays a full and fair price for property without notice that a third party has an interest in that property. Drazen Properties Ltd. Partnership v. E. F. Mahon, Inc., supra. A purchaser has actual notice if he knows facts sufficient to put a reasonable person on inquiry “which, if prosecuted with reasonable diligence, would certainly lead to discovery of a conflicting claim. ...” (Citation omitted; internal quotation marks omitted.) Id., quoting Andretta v. Fox New England Theatres, Inc., 113 Conn. 476, 482, 155 A. 848 (1931).

In this case, the contracts have terms of more than one year. If they are assumed to be leases, they cannot bind the defendant. There is no indication that the defendant paid less than a full and fair price for the apartment complexes, and there is no dispute that the defendant lacked record notice because the contracts were not recorded on the land records. Furthermore, the trial court found that the defendant did not have actual notice, and we conclude that there was sufficient evidence to support that finding.

Unlike a lease, a license in real property is a mere privilege to act on the land of another, which does not produce an interest in the property. State v. Allen, 216 Conn. 367, 380, 579 A.2d 1066 (1990); State v. Grant, 6 Conn. App. 24, 29, 502 A.2d 945 (1986). Since a license does not convey a possessory interest in land; State v. Allen, supra; State v. Grant, supra; a license does not run with the land to bind a subsequent purchaser. See Carlson v. Libby, 137 Conn. 362, 367-68, 77 A.2d 332 (1950). If the contracts in this case are assumed to be licenses between the plaintiff and the previous owners of Highland Terrace and West Orange Manor, they are not enforceable against the defendant because the defendant is merely a subsequent purchaser.

As a result, regardless of whether the contracts in issue are characterized as leases or licenses, we conclude that they do not bind the defendant.

II

The plaintiff claims that the trial court improperly refused to open the judgment to allow the introduction of parol evidence to establish the existence of “leased premises.” The plaintiff contends that the introduction of this evidence would prove that the contracts are leases.

It is well established that courts have an inherent capacity to open judgments. See Batory v. Bajor, 22 Conn. App. 4, 8, 575 A.2d 1042, cert. denied, 215 Conn. 812, 576 A.2d 541 (1990); Pump Services Corp. v. Roberts, 19 Conn. App. 213, 215, 561 A.2d 464 (1989). A trial court may open a civil judgment if a motion to open is filed within four months of the issuance of the judgment. General Statutes § 52-212a; Practice Book § 326. It is within a trial court’s discretion to rule on a timely filed motion to open, and we will not disturb such a ruling unless the trial court acted unreasonably or abused its discretion. Batory v. Bajor, supra; Pump Services Corp. v. Roberts, supra. We will draw every reasonable presumption in favor of the trial court’s action. Pump Services Corp. v. Roberts, supra.

Although the plaintiff timely filed a motion to open the judgment, the trial court concluded that the proffered evidence would not alter the outcome of the case. The introduction of parol evidence to prove that the contracts are leases would not change the result because we have concluded that the defendant is not bound by the contracts even if they are leases. Thus, we conclude the trial court did not abuse its discretion in denying the plaintiff’s motion to open the judgment.

Ill

The plaintiff also claims that the defendant is bound by the contracts because he assumed them by accepting the benefits of the contracts after his purchase of the complexes. We conclude that the plaintiff cannot make this claim now because he did not plead or prove this claim in the complaint or at trial.

The plaintiff contends that the defendant became bound by the contracts because the defendant accepted payments from the plaintiff from the time of the defendant’s purchase of the complexes to the time of the defendant’s disconnection of the machines. In essence, the plaintiff is asserting that the defendant’s conduct created an implied contract.

“A plaintiff’s right to recover has traditionally been limited to the allegations of his complaint, and a plaintiff may not allege one cause of action and recover upon another.” Altberg v. Paul Kovacs Tire Shop, Inc., 31 Conn. App. 634, 640, 626 A.2d 804 (1993), citing Tedesco v. Stamford, 215 Conn. 450, 458, 576 A.2d 1273 (1990), and A. V. Giordano Co. v. American Diamond Exchange, Inc., 31 Conn. App. 163, 166, 623 A.2d 1048 (1993). Here, the plaintiff pleaded in the complaint and attempted to prove at trial that certain “leases” were breached. The plaintiff, therefore, alleged damages for breach of express contracts, but did not plead or attempt to prove an implied contract cause of action. Since the plaintiff alleged only one cause of action in the complaint and at trial, he cannot recover under another theory on appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 47-19 provides in pertinent part: “No lease . . . for any term exceeding one year . . . shall be effectual against any persons other than the lessor and lessee and their respective heirs, successors, administrators and executors, unless it is . . . recorded in the same manner as a deed of land . . . .”

       General Statutes § 47-10 provides in pertinent part: “No conveyance shall be effectual to hold any land against any other person but the grantor and his heirs, unless recorded on the records of the town in which the land lies. . . .”

       The defendant testified at trial that, although he knew that the machines were on the properties prior to his purchase of the complexes, he did not know about the existence of the contracts prior to that time. Since the defendant could have reasonably believed that the machines were included in the purchase of the complexes, he did not have to make an inquiry about possible third party claims to the machines. See Drazen Properties Ltd. Partnership v. E. F. Mahon, Inc., 19 Conn. App. 471, 477, 562 A.2d 1142 (1989).

       A license also is unassignable. A license extends only to the person to whom it is given, and cannot be granted to another. Prince v. Case, 10 Conn. 375, 382 (1835).

       A right to install and maintain laundry machines on the premises of another would usually create a license. The issue in this case, however, is not whether the contracts created a license, but whether the contracts are enforceable against an assignee of a licensor.

       The parol evidence rule forbids the use of extrinsic evidence to vary or contradict the terms of an integrated contract. TIE Communications, Inc. v. Kopp, 218 Conn. 281, 288, 589 A.2d 329 (1991). Such evidence may be admissible to explain ambiguities that exist in the contract. Id., 288-89.

       Under the theory of implied contract, the conduct of the parties can manifest an intent to create a contract. Coelho v. Posi-Seal International, Inc., 208 Conn. 106, 111-12, 544 A.2d 170 (1988); D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n.2, 520 A.2d 217 (1987).


author: La very, J.

text:
    State of Connecticut v. Donald L. Chapman
    (11692)
    Lavery, Landau and Schaller, Js.

      Argued September 27
    decision released December 14, 1993

      Ira B. Grudberg, with whom, on the brief, was Thomas W. Ude, Jr., for the appellant (defendant).

      Marcia A. Pillsbury, assistant state’s attorney, with whom were Lawrence J. Tytla, assistant state’s attorney, and, on the brief, C. Robert Satti, Sr., state’s attorney, for the appellee (state).
   La very, J.

The defendant, Donald L. Chapman, appeals from the judgment of conviction of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (l), risk of injury to a child in violation of General Statutes § 53-21, and sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A). The defendant claims that the trial court improperly (1) denied his motion for change of venue, (2) refused to question the jurors about possible exposure to trial publicity, and (3) altered his sentence after execution. We affirm the judgment of the trial court.

The defendant, a resident of Ledyard, was accused of sexually assaulting a twelve year old girl on numerous occasions in 1987. He was tried before a jury in July, 1992. At the time of trial, the defendant was free on bond pending his appeal of an earlier unrelated rape conviction. The defendant requested a transfer of the prosecution claiming that pretrial publicity about his prior rape conviction made a fair trial impossible. The trial court denied the request.

During the trial, two local newspapers published a total of eight articles about the proceedings. The defendant moved for mistrial and repeatedly sought to have the court ask the jurors about possible exposure to the publicity. The court asked the jurors whether they had seen the news coverage. None had. The motion for mistrial and all subsequent requests to poll the jury were denied.

The defendant was convicted on all charges and sentenced to twenty-five years in prison, execution suspended after sixteen years. After a lengthy appeal bond hearing, the court stated that the sentence imposed was to be served consecutive to any prior sentence. This appeal resulted.

I

The defendant claims that the trial court abused its discretion by denying his motion for change of venue. He claims that publicity about the trial and his previous conviction deprived him of his right to a fair trial. We disagree.

In requesting a change of venue, the movant must demonstrate that a fair and impartial trial is not otherwise possible. State v. Townsend, 211 Conn. 215, 224, 558 A.2d 669 (1989). A transfer is necessary if, in the discretion of the trial court, the location of the pending case precludes a fair and impartial trial. Practice Book § 835; State v. Townsend, supra, 224-25. On appeal, the “ ‘grave constitutional implications attending’ ” motions for transfer require that appellate tribunals independently evaluate the circumstances. State v. Pelletier, 209 Conn. 564, 568, 552 A.2d 805 (1989), quoting Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966). Our review of the record convinces us that publicity did not deprive the defendant of a fair and impartial trial.

For a conviction to be reversed on the ground of prejudicial publicity, the defendant must prove actual juror prejudice. State v. Townsend, supra, 225. Actual prejudice, however, need not be shown “in extreme circumstances where there has been inherently prejudicial publicity such as to make the possibility of prejudice highly likely or almost unavoidable. . . .” (Citations omitted; internal quotation marks omitted.) Id.; State v. Piskorski, 177 Conn. 677, 686, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). In the present case, the defendant has failed to show either “inherently prejudicial” publicity or actual prejudice.

No mathematical formula defines “inherently prejudicial” publicity. Courts have presumed prejudice and overturned convictions where the attendant publicity created a “circus atmosphere.” See Sheppard v. Maxwell, supra, 356-57 (live television broadcast of three day, pretrial examination of defendant, unassisted by counsel); Estes v. Texas, 381 U.S. 532, 550-51, 85 S. Ct. 1628, 14 L. Ed. 2d 543 (1966) (intrusive television presence in courtroom); Rideau v. Louisiana, 373 U.S. 723, 724, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963) (repeated television broadcast of defendant’s “confession”). The defendant has failed to persuade us, however, “that the news coverage created a ‘trial atmosphere . . . utterly corrupted by press coverage.’ ” State v. Pelletier, supra, 570, quoting Murphy v. Florida, 421 U.S. 794, 798, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975).

The publicity regarding this case was not extensive. Cf. State v. Pelletier, supra. The defendant focuses on eight articles in two local newspapers that referred to the defendant’s earlier conviction. He maintains that his prior conviction could not have been admitted at trial without severe limitations on its use, and therefore, its publication was inherently prejudicial. The stories, however, were neither inflammatory nor inaccurate. Id. They were “straight news stories rather than invidious articles [that] would tend to arouse ill will and vindictiveness.” State v. Townsend, supra, 227; State v. Pelletier, supra, 570. The reports were free from sensationalism, accurate and largely factual. Therefore, these facts fail to rise to the level of inherent prejudice. See State v. Piskorski, supra, 689.

The defendant has also failed to demonstrate actual jury prejudice. In evaluating this claim, “we examine the record to determine whether the method of jury selection or the characteristics of the jurors selected deprived the defendant of his constitutional right to a fair trial.” Id., 225-26. Our review reveals no such deprivation.

The court excused all venirepersons who remembered any of the pretrial publicity. None of the selected jurors recalled that the defendant or his farm had been in the news. The jury was impanelled in two days and the defendant used only seven of his nine peremptory challenges. The record contains no evidence of juror prejudice. Further, the defendant presents no evidence that the jury even saw, let alone was tainted by, midtrial publicity. We conclude, therefore, that there was no actual juror prejudice.

The defendant has failed to demonstrate inherently prejudicial publicity or actual jury prejudice. Thus, the trial court’s denial of his motion for change of venue was not an abuse of discretion.

II

The defendant next claims that the trial court improperly refused to question the jurors during the course of the trial about possible exposure to trial publicity. Our review of the record convinces us that the trial court did not abuse its discretion.

During the trial, the defendant raised the issue of possible juror prejudice from newspaper articles. The court, on one occasion, polled the jury about exposure to publicity. None of the jurors reported any exposure. The defendant’s subsequent requests to poll the jury, after additional publicity, were denied. The defendant argues that the trial court’s denial was an abuse of discretion. We disagree.

“[A] defendant's right to a jury trial guarantees him that it will be conducted fairly by a panel of impartial jurors; State v. Ziel, 197 Conn. 60, 64, 495 A.2d 1050 (1985); State v. Migliaro, 28 Conn. App. 388, 395, 611 A.2d 422 (1992); and that the jury will decide the case solely on the basis of the evidence and arguments presented before it ... . State v. Rodriguez, 210 Conn. 315, 325, 554 A.2d 1080 (1989). Where it appears during the course of a trial that the jury panel may have been exposed to prejudicial extrinsic evidence, the trial court must conduct . . . an investigation to determine whether jury misconduct occurred. See State v. Migliaro, supra, 396. There is no magic formula that the trial court must follow in conducting this inquiry. Rather, it must use whatever inquisitorial tools are necessary and appropriate to determine whether there was a reasonable possibility of prejudice.” (Emphasis added; internal quotation marks omitted.) State v. Leonard, 31 Conn. App. 178, 194, 623 A.2d 1052, cert. granted on other grounds, 226 Conn. 912, 628 A.2d 985 (1993). The trial judge is best situated and uniquely qualified to appraise possible juror misconduct. Id., 195. Thus, the trial court’s broad discretion will be afforded great weight. Id.

When, after the first day of testimony, the defendant moved for a mistrial due to possible juror exposure, the court polled the jury. No juror reported having been exposed to the publicity. In fact, the judge remarked that the jurors seemed surprised to have been asked. Such an inquiry was an entirely appropriate form of investigation. See id., 194.

After additional newspaper coverage, the defendant requested further inquiry of the jurors. These requests were denied. The judge stated his satisfaction that the jurors were not being exposed. Where it does not appear that the jury is being exposed, the court need not conduct any investigation. See id.

In the present case, the trial court properly exercised its discretion. Before the trial began, the court instructed the jury to avoid the local newspapers. After questioning the jury about possible exposure, and at the end of each day during the trial, the court admonished the jurors to avoid the local newspapers. The defendant has presented no evidence of juror misconduct. Absent evidence to the contrary, jurors are presumed to follow the court’s instructions. Id., 196. We will not, on appeal, speculate on what jurors might have seen and its possible effects. See id.

The trial court did not abuse its discretion by repeatedly refusing to question the jury about possible exposure to publicity.

Ill

The defendant’s final claim is that the trial court improperly increased his sentence after execution by making it consecutive to the sentence imposed after his first conviction. The jury convicted the defendant on July 17, 1992; he was sentenced on August 14. Immediately after announcing the sentence, the trial court set an appeal bond. A hearing on the defendant’s request to post a real estate bond followed. After denying the defendant’s request to post a real estate bond, the court announced that the defendant’s sentence would run consecutive, not concurrent, to his prior sentence. The defendant claims that the trial court’s conduct violated his state and federal constitutional rights against double jeopardy and to due process.

“Ordinarily a sentence may not be modified if any act is done in execution of it.” State v. Nardini, 187 Conn. 109, 123, 445 A.2d 304 (1982). Once commenced, a trial court cannot modify a valid sentence unless expressly authorized by statute. State v. Luzietti, 32 Conn. App. 1, 4, 628 A.2d 8, cert. granted, 227 Conn. 919, 632 A.2d 697 (1993). A sentence commences when custody is transferred from the court to the custodian of the penal institution. General Statutes § 53a-38 (a) (sentence commences “when the prisoner is received in the custody or institution to which he was sentenced”); State v. Walzer, 208 Conn. 420, 424-25, 545 A.2d 559 (1988). The defendant passes into the jurisdiction of the commissioner of correction when a judgment of mittimus is issued. State v. Walzer, supra, 425-26; see also Moscone v. Manson, 185 Conn. 124, 129, 440 A.2d 848 (1981) (sentence commences only upon incarceration); State v. Adams, 14 Conn. App. 119, 133, 539 A.2d 1022 (1988) (sentence had not commenced because mittimus had not yet been drafted); State v. Elliott, 8 Conn. App. 566, 575, 513 A.2d 1285, cert. denied, 201 Conn. 813, 517 A.2d 630 (1986) (date of issuance of mittimus indicates commencement of sentence). At this point, the court’s jurisdiction over the prisoner terminates. State v. Luzietti, supra.

The record clearly reveals that the defendant’s sentence had not commenced before the trial court’s alteration. Immediately after announcing sentence, the trial court set an appeal bond and held a hearing on the defendant’s request for a real estate bond. At the conclusion of the hearing, the defendant posted bond and left. No act occurred in execution of the sentence. The defendant was not transferred to the custody of the penal institution to which he was sentenced. No mittimus was issued.

Because the defendant never commenced his sentence, the court never lost jurisdiction over him. Thus, the trial court had the authority to clarify the sentence after the bond hearing without violating the defendant’s constitutional rights.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-71 (a) provides in pertinent part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under sixteen years of age . . . .”

       General Statutes § 53-21 provides in pertinent part: “Any person who wilfully or unlawfully . . . does any act likely to impair the health or morals of any such child, shall be fined ... or imprisoned . . . .”

       General Statutes § 53a-73a (a) provides in pertinent part: “A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age . . . .”

       His conviction was reversed on appeal. State v. Chapman, 28 Conn. App. 360, 369, 610 A.2d 1328 (1992), aff'd, 227 Conn. 616, 631, 632 A.2d 674, motion for reconsideration en banc granted, 227 Conn. 616, 617 n., 632 A.2d 674 (1993).

       The defendant couched his request as a motion for change of venue. We presume that he moved for a Transfer of Prosecution pursuant to Practice Book § 835. See footnote 6.

       Practice Book § 835 provides in pertinent part that “the judicial authority may order that any pending criminal matter be transferred to any other court location:
      “(1) If the judicial authority is satisfied that a fair and impartial trial cannot be had where the case is pending . . . .”

       The defendant cited twenty articles in total. Two of the articles were nothing more than news accounts of the defendant’s buying a stable, and a fire at the property. The remaining articles dealt solely with the first trial and conviction, and were published months before the jury was selected for this trial. See State v. Miller, 202 Conn. 463, 477, 522 A.2d 249 (1987) (noting that significant delay between publicity and trial lessens likelihood of prejudice).

       On conviction by a jury of sexual assault in the first degree, the defendant was sentenced to a term of fourteen years, execution suspended after seven years. His conviction was reversed on appeal to this court. State v. Chap

        man, 28 Conn. App. 360, 363, 369, 610 A.2d 1328 (1992), aff’d, 227 Conn. 616, 632 A.2d 674 (1993). Our Supreme Court granted the state’s motion to reconsider its ruling en banc on October 5, 1993. State v. Chapman, supra, 227 Conn. 617 n. If this court’s judgment is upheld, this issue is moot. Since the case is being reconsidered, however, we will address the issue as briefed.


author: Foti, J.

text:
    Carol C. Rummel v. Michael W. Rummel
    (11578)
    Foti, Landau and Cretella, Js.
    Argued September 22
    decision released December 14, 1993

      Diane Polan, with whom, on the brief, was Sue L. Wise, for the appellant (defendant).

      Geraldine Battistoli, for the appellee (plaintiff).
   Foti, J.

This is an appeal from orders issued in connection with the judgment dissolving the parties’ marriage. The defendant contends that the trial court improperly (1) made findings not reasonably supported by the evidence, and (2) abused its discretion in the assignment of property. We affirm the judgment of the trial court.

The facts necessary to a resolution of this matter are as follows. The parties were married in Westbrook on April 16,1977. There are no children of this marriage. The plaintiff was forty-five years of age at the time of the dissolution, and the defendant, forty-one. The defendant was employed for many years by the Fusco Corporation as a construction projects supervisor. He has a high school education. The plaintiff has been employed for many years as a secretary-bookkeeper for Casserino’s Moving and Storage Company. Her education consisted of four years of high school and one year of secretarial school. It was the defendant’s first marriage. The plaintiff had been married previously, was divorced and had custody of a minor daughter at the time of the marriage.

Prior to this second marriage, the plaintiff owned interests in commercial property on Pease Avenue in Middletown and residential property on Seaside Avenue in Westbrook. The Westbrook property was the plaintiff’s home beginning in 1975 and upon the marriage became the marital household. The plaintiff paid expenses on the residential property from income derived from the Pease Avenue commercial property. During the course of the marriage, the plaintiff acquired a partial interest in a condominium in Florida, owned jointly with her brother and mother, and in which her mother resided. The plaintiff mortgaged her interest in the Westbrook property to obtain funds for the Florida purchase.

The defendant’s earnings were markedly greater than the plaintiff’s at the time of their marriage and steadily increased over the years of the marriage. His weekly gross income at the time of the dissolution was $828.40, and the plaintiff’s was $275. The plaintiff’s expenses at the time of the dissolution exceeded her income, and she had been receiving assistance from her brother on a weekly basis.

The defendant used alcohol immoderately on a regular basis eventually resulting in his requiring medical attention and treatment for alcohol abuse. After several weeks of inpatient care in October, 1991, he did not return home, but took up residence with his parents.

The plaintiff commenced this dissolution action pro se on January 6, 1992; followed by an amended complaint filed by counsel dated April 29, 1992. After a limited contested trial, the trial court found “that the fault for the breakdown of the marriage should not be attributed to a greater extent to either” party. The court denied alimony to both, ordered each to be responsible for individual attorney’s fees, permitted the defendant to retain his pension and annuity fund, and allowed each party to retain cash assets, personal property and real property as declared on each individual’s financial affidavit.

I

As a preliminary matter, we must address a question first raised by the court during oral argument: whether the failure to close the pleadings deprived the trial court of jurisdiction. The record is clear, and the parties agree, that no answer was filed either to the complaint or the amended complaint. Pleadings frame the issues; a trial court, in order to have the right to adjudicate, must have “ ‘jurisdiction of the precise question which its judgment assumes to decide, or of the particular remedy or relief which it assumes to grant.’ 1 Black, Judgments (2d Ed. 1902) § 242. ...” (Citations omitted.) Doublewal Corp. v. Toffolon, 195 Conn. 384, 390, 488 A.2d 444 (1985).

There are three separate elements of the jurisdiction of a court: jurisdiction over the person, jurisdiction over the subject matter, and jurisdiction to render the particular judgment. Bridgeport v. Debek, 210 Conn. 175, 179, 554 A.2d 728 (1989). “Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong. . . .” (Citations omitted; internal quotation marks omitted.) Tolly v. Department of Human Resources, 225 Conn. 13, 29, 621 A.2d 719 (1993), quoting Lauer v. Zoning Commission, 220 Conn. 455, 460, 600 A.2d 310 (1991). The Superior Court lacks subject matter jurisdiction only if it has no competence to entertain the action before it. Plasil v. Tableman, 223 Conn. 68, 78, 612 A.2d 763 (1992); Meinket v. Levinson, 193 Conn. 110, 115, 474 A.2d 454 (1984). “Lesser irregularities do not make a final judgment void.” Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979); see also Beizer v. Goepfert, 28 Conn. App. 693, 697, 613 A.2d 1336, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992), U.S. , 113 S. Ct. 1416, 122 L. Ed. 2d 786 (1993). Further, there exists an established principle that every presumption is to be indulged in favor of jurisdiction. Grant v. Bassman, 221 Conn. 465, 470, 604 A.2d 814 (1992).

There is no doubt that the Superior Court is authorized to hear actions involving the dissolution of marriage. Subject matter jurisdiction as well as jurisdiction to render a judgment to dissolve this particular marriage exists because the trial court has the power to hear the general class of cases to which this proceeding belongs. Lampasona v. Jacobs, 209 Conn. 724, 728, 553 A.2d 175, cert. denied, 492 U.S. 919, 109 S. Ct. 3244, 106 L. Ed. 2d 590 (1989).

“Unlike subject matter jurisdiction, however, personal jurisdiction may be created through consent or waiver.” United States Trust Co. v. Bohart, 197 Conn. 34, 39, 495 A.2d 1034 (1985). The parties herein agree that by going forward on this trial without an answer having been filed, the defendant waived any defect regarding jurisdiction over the person that may have existed. “In the absence of timely objection by the parties served to [any] alleged procedural defects, the ordinary rule is that the defects have been waived.” Morgan v. Brown, 219 Conn. 204, 208, 592 A.2d 925 (1991); Practice Book § 144.

A failure to close the pleadings, where all the parties were present and represented, will not fatally affect the jurisdiction of a case. “Justice more than judicial economy requires an attempt to decide the case rather than reversing and remanding with instructions to put the pleadings in proper form before rendition of appropriate judgment.” Berlingo v. Sterling Ocean House, Inc., 203 Conn. 103, 106, 523 A.2d 888 (1987).

II

The defendant first claims that the trial court’s findings are not reasonably supported by the evidence. He alleges that the trial court improperly (1) failed to consider all the assets of the marital estate in that the plaintiff acquired an additional one-third ownership of the Westbrook property during the marriage, (2) found that the main support of the Westbrook property came from the plaintiff, (3) found that he had never asserted or claimed any interest in the Westbrook property until after the separation, and (4) found that the support of the minor child was borne solely by the plaintiff.

“The standard of review in family matters is that this court will not disturb the trial court’s orders unless it has abused its legal discretion or its findings have no reasonable basis in fact.” Graham v. Graham, 25 Conn. App. 41, 47, 592 A.2d 424, cert. denied, 220 Conn. 903, 593 A.2d 969 (1991). It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. Solomon v. Aberman, 196 Conn. 359, 378, 493 A.2d 193 (1985). “ ‘The trial court is accorded wide discretion in determining the proper allocation of the assets of the parties.’ ” Siracusa v. Siracusa, 30 Conn. App. 560, 570, 621 A.2d 309 (1993).

“ ‘[G]reat weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence. Gallo v. Gallo, 184 Conn. 36, 50, 440 A.2d 782 (1981). . . .’ ” Vandal v. Vandal, 31 Conn. App. 561, 566, 626 A.2d 784 (1993). “ ‘[Wjhere the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, these facts are clearly erroneous.’ ” Cookson v. Cookson, 201 Conn. 229, 243, 514 A.2d 323 (1986), quoting Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

Our review of the record leads us to conclude that the facts as found in the memorandum of decision are reasonably supported by the evidence. The memorandum is clear, unambiguous and complete. The trial court heard evidence and had before it the financial affidavits of the parties as to income earned and assets acquired. The court considered all of the marital assets, when and how acquired, the payment for the maintenance of the marital home and the minor child. The trial court understood the extent of the plaintiff’s business and real estate interests, and the contribution that each party made for the acquisition, preservation or appreciation in value of their respective estates. The trial court adequately stated the basis for its decision and considered all of the marital assets in light of the statutory criteria. We cannot conclude, on the basis of our review of the record, that the court could not have reasonably found as it did.

Ill

The defendant next claims that the trial court abused its discretion in the distribution of the assets of the parties, in particular, the Westbrook property and the Florida property. He alleges that the trial court gave no weight to the nonmonetary contribution that he made to the marital estate, specifically the improvements he made that served to increase the value of the property or properties. He also alleges that the trial court failed to consider any support which he furnished to his stepdaughter throughout the marriage.

The trial court has broad powers and wide discretion in the assignment of property in a dissolution action. Rostain v. Rostain, 213 Conn. 686, 689, 569 A.2d 1126 (1990). The trial court must, however, consider a number of statutory factors in fixing the nature and value of the property to be distributed among the parties. See General Statutes § 46b-81. The court need not give each factor equal weight or recount every factor in its decision as long as the decision reflects a proper consideration and a weighing of the statutory factors. Puris v. Puris, 30 Conn. App. 443, 450, 620 A.2d 829 (1993). “On appeal, the defendant bears the burden of proving to this court that the trial court did not consider the proper criteria . . . .” (Internal quotation marks omitted.) Siracusa v. Siracusa, supra, 568-69.

The purpose of a property assignment is to divide the ownership of the parties’ property equitably. McPhee v. McPhee, 186 Conn. 167, 170, 440 A.2d 274 (1982). “[E]quitable remedies are not bound by'formula but are molded to the needs of justice.” Lawler v. Lawler, 16 Conn. App. 193, 204, 547 A.2d 89, appeal dismissed, 212 Conn. 117, 561 A.2d 128 (1988). Further, we presume that the trial court properly considered all of the evidence submitted by the parties. Solomon v. Aberman, supra, 376. We will not retry facts or pass upon the credibility of witnesses and the weight to be given the evidence. Chomko v. Patmon, 19 Conn. App. 483, 488-89, 563 A.2d 311, cert. denied, 212 Conn. 819, 565 A.2d 539 (1989).

The trial court noted the disparity in the income of the parties, their respective ages and the monetary assets of both. The court left intact the defendant’s $37,000 as held by him in the Farmers and Mechanics Bank, along with his IRA accounts and his pension and annuity fund. The court considered the defendant’s opportunity for further acquisition of capital assets and income. The court also evaluated evidence relative to the acquisition, preservation or appreciation of the value of property including the contribution the defendant claimed to have made to the maintenance and upkeep of the Westbrook property. Construing every reasonable presumption in favor of the correctness of the court’s distribution of assets; Puris v. Puris, supra, 449-50; we conclude that the defendant has failed to demonstrate that the trial court abused its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the court did not mention any additional property in its memorandum of decision, it would appear that the Florida condominium located in Pompano Beach was sold in 1988 and a house purchased in Fort Lauderdale.

       “Once the question of lack of jurisdiction of a court is raised, ‘[it] must be disposed of no matter in what form it is presented.’ Carten v. Carten, 153 Conn. 603, 610, 219 A.2d 711 (1966).” Cross v. Hudon, 27 Conn. App. 729, 732, 609 A.2d 1021 (1992).

       General Statutes § 46b-44 (c) provides in pertinent part: “A decree dissolving a marriage or granting a legal separation may be entered if: (1) One of the parties to the marriage has been a resident of this state for at least the twelve months next preceding the date of the filing of the complaint or next preceding the date of the decree . . . .”
      “When either of the parties to a dissolution action meets the domicile requirements of § 46b-44 (c), the court has both personal and subject matter jurisdiction . . . .” Sachs v. Sachs, 22 Conn. App. 410, 415, 578 A.2d 649, cert. denied, 216 Conn. 815, 580 A.2d 60 (1990).
      The trial court in this case found that both the plaintiff and the defendant had “resided continuously within the state of Connecticut for at least one year next preceding the date of the filing of the complaint.”

       See Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979) (holding, in a marital dissolution case, that trial referee did not lack subject, matter jurisdiction because there was no valid order of reference from Superior Court, where parties were present, represented by counsel, and agreed to referral; lack of signed order was merely oversight not jurisdictional defect).

       Practice Book § 144 provides: “Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service or process is waived if not raised by a motion to dismiss filed in the sequence provided in Secs. 112 and 113 and within the time provided by Sec. 142.”

       “The pleadings were not closed .... Without condoning any such violation, we point out that . . . the court already had jurisdiction not only of the subject matter and the process but also of all the parties to this [action]. See Telesco v. Telesco, 187 Conn. 715, 719-20, 447 A.2d 752 (1982); LaBow v. LaBow, 171 Conn. 433, 440, 370 A.2d 990 (1976). [Any] procedural failure by the plaintiff did not, in any fashion, have the effect of terminating or ousting the jurisdiction of the trial court. At most, it made the trial court’s action . . . technically erroneous, but that error was rendered harmless by later circumstances, including . . . the lack of actual prejudice to the defendant, and the presumed consideration by the trial court, required under the circumstances, of the closed pleadings in deciding the plaintiffs [action].” Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 4, 513 A.2d 1218 (1986).

       An additional argument was raised that Practice Book § 456 may be interpreted to excuse the defendant in a domestic relations case from the obligation of filing a responsive pleading. Practice- Book § 456 provides: “The defendant in a dissolution of marriage, legal separation or annulment matter may file one of the following pleadings: (1) An answer may be filed which denies or admits the allegations of the complaint and which may set forth the defendant’s claims for relief. (2) An answer and a cross complaint may be filed which denies or admits the allegations of the complaint and which alleges the grounds upon which a dissolution, legal separation or annulment is sought by the defendant and specifies therein the claims for relief.” (Emphasis added.)
      Section 456 does not give the defendant permission not to file an answer. The purpose of § 456 is to permit a defendant to raise claims for relief not raised by the plaintiff. Tsopanides v. Tsopanides, 181 Conn. 248, 435 A.2d 34 (1980). We do not condone the practice of the trial court of ruling on the plaintiffs claims when the pleadings have not been closed.