author: FOTI, J.

text:
    STATE OF CONNECTICUT v. SHEILA ALDRICH
    (AC 17701)
    Foti, Spear and Dupont, Js.
    Argued February 26
    officially released June 8, 1999

      Robert E. Byron, special public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary Elizabeth Baran, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Sheila Aldrich, appeals from the judgment of conviction, rendered after a jury trial, of promoting prostitution in the first degree in violation of General Statutes § 53a-86 and two counts of risk of injury to a child in violation of General Statutes (Rev. to 1991) § 53-21. On appeal, the defendant claims that she was denied a fair trial because the prosecution continually presented unsubstantiated testimony concerning the defendant’s prior drug use. She also claims that the constitutional guarantee against double jeopardy was violated when she was separately sentenced for the offenses of promoting prostitution of a minor and risk of injury to a child. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Before her twelfth birthday, the defendant’s daughter, M, lived with the defendant and the defendant’s boyfriend in Meriden. In 1992 and 1993, when M was ten and eleven years of age, Richard Tomczuk, a friend of the defendant, would visit almost daily. Sometimes when M was with Tomczuk and the defendant in Tomczuk’s car, she observed the defendant performing fellatio on Tomczuk in exchange for $20. M also saw Tomczuk touch the defendant’s vaginal area and breasts on numerous occasions.

During this same time period, another man, Dominic Tortorella, came to the defendant’s house frequently and had sexual relations with the defendant. When leaving, Tortorella would ask M for a kiss. The defendant would urge M to kiss Tortorella, saying that she needed the money and that she would beat M if she refused. Reluctantly, M would allow Tortorella to kiss her. Tort-orella would put his tongue in M’s mouth, causing M to want to vomit. Tortorella would then pay the defendant. This happened on numerous occasions.

During this same time period, the defendant would send M out to ask people for money to buy cigarettes. She would also tell M to “go out there and sell your body,” saying it was “easy.” Sometimes M would be awakened in the night and sent out. M did not want to go, but complied. While out, M would prostitute herself with men. M gave all the money she received straight to the defendant. If M failed to comply with the defendant’s demands, the defendant would beat M, slapping and kicking her. This happened quite often. The defendant once blackened M’s eye.

At the time of trial, M was fourteen years of age, diagnosed with multiple sclerosis and in a wheelchair. Additional facts are set forth as they become relevant in our analysis of the defendant’s specific claims.

I

The defendant first claims that she was denied her right to a fair trial because the prosecution presented unsubstantiated testimony concerning her prior drug use. We disagree.

During the direct examination of M, when asked about the defendant’s performing oral sex on Tomczuk, M stated that the defendant was paid afterwards. The state then asked M what the money was used for, and M replied, “for drugs.” The defendant objected to the question as leading and asked that the answer be stricken. The trial court overruled the objection. The state then asked if M knew what kinds of drugs, and M replied, “heroin or cocaine.” The trial court disallowed further questions on the subject.

Later, in response to questions about the defendant’s sexual relations with men, M stated that such relations occurred while the defendant’s boyfriend was in the apartment, and that he knew all the men. When the state asked if “they all [did] drugs together, too,” M answered that they did. The defendant objected, and the trial court sustained the objection. The defendant did not move to strike the answer and the state did not pursue the subject.

Thereafter, during M’s cross-examination, when M was asked about going out to perform acts of prostitution for money, defense counsel asked what would she do with the money. The following colloquy took place:

“A. Give it back to, give it to my mom.
“Q. You give it to your mom and she wants to buy some cigarettes?
“A. No, she wanted to buy drugs.
“Q. To buy drugs?
“A. Yes.”

To all other questions asked of M that referenced the defendant’s drug use, objections were sustained and no answers were given. In instances where M mentioned drugs in a nonresponsive manner to a question, the trial court struck the answers and cautioned the jury to “please disregard [them].” Although the state argued that drugs provided a motive for the defendant’s behavior, the trial court sustained the defendant’s objections and ordered stricken any testimony by other state’s witnesses who mentioned the defendant’s drug use, none of which were in direct response to a question by the state.

In response to a reference by another witness to the defendant’s drug use, the trial court advised the jury to “disregard the response” and that it was “not part of this case.” The state did not mention the defendant’s drug use in its closing argument. During its charge to the jury, the trial court reminded the jurors that it had told them several times to disregard answers and that they should not consider stricken testimony. We presume that the trial court’s instructions are followed. State v. Reddick, 224 Conn. 445, 454, 619 A.2d 453 (1993).

The defendant argues, however, that the questions asked by the state, which were not answered, as well as the answers given by the various witnesses that were stricken, show the state’s attempt to inject extraneous and highly prejudicial matters into the case. The defendant claims that such an attempt by the prosecutor to “elicit testimony as to [the] defendant’s drug use in the presence of the jury” implicates her constitutional right to a fair trial before an impartial jury.

The state argues, and the defendant concedes, that the defendant’s claim of prosecutorial misconduct was unpreserved. The defendant seeks review under the plain error doctrine. See Practice Book § 60-5. Plain error review “ ‘is reserved for those truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ ” State v. Austin, 244 Conn. 226, 241, 710 A.2d 732 (1998).

It is axiomatic that questions are not evidence. We are also aware that answers that are stricken are to be disregarded by the jury and are also not considered as evidence. Nevertheless, we note that the record is clear that the jury did have before it testimony concerning the defendant’s drug use given in response to questions by the state as well as by the defendant. Those references to the defendant’s drug use were not so inherently prejudicial, however, that they deprived the defendant of a fair trial. The defendant further failed to show that, if evidence of drug use was improperly admitted, it more likely than not affected the verdict'.

Additionally, we must reject the defendant’s specific claim of prosecutorial misconduct as well. “It is well settled . . . that a defendant may not prevail under . . . the plain error doctrine unless the prosecutorial impropriety was so pervasive or egregious as to constitute an infringement of the defendant’s right to a fair trial . . . .” State v. Satchwell, 244 Conn. 547, 564, 710 A.2d 1348 (1998). The defendant has failed to prove that, in the context of the trial as a whole, the state engaged in a pattern of repeated and blatantly egregious misconduct so pervasive that it denied her a fair trial and due process. See State v. Williams, 231 Conn. 235, 246, 645 A.2d 999 (1994). Accordingly, we reject the defendant’s contention that she was denied a fair trial by the state’s purported presentation of testimony concerning the defendant’s prior drug use. The defendant’s claim is unfounded.

II

The defendant next claims that the constitutional guarantees against double jeopardy preclude separate sentences on the first and third counts of the information, specifically, promoting prostitution of a person less than sixteen years old and risk of injury to a child. We disagree.

Each count charged that the defendant offered M, a child under the age of sixteen, for prostitution on various dates in 1992 and 1993. The defendant received a sentence of eighteen year's, execution suspended after fourteen years, followed by five years of probation on the first count. On the third count, she received seven years, to be served concurrently with the sentence imposed on the first count.

The double jeopardy clause of the fifth amendment to the United States constitution prohibits multiple punishment for the same offense in a single trial, as well as multiple trials for the same offense. State v. Otto, 50 Conn. App. 1, 17-18, 717 A.2d 775, cert. denied, 247 Conn. 927, 719 A.2d 1171 (1998). The double jeopardy clause is applicable to the states through the due process clause of the fourteenth amendment. State v. Lon-ergan, 213 Conn. 74, 78, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990).

“Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” (Internal quotation marks omitted.) State v. Greco, 216 Conn. 282, 290-91, 579 A.2d 84 (1990). In this case, the state concedes, and we agree, that the crimes charged arise out of the same act; the question is whether they are the same offense.

“[T]he test to be applied to determine whether there are two offenses or only one, is whether each provision requires the proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). We look to the language of the statutes, the information and the bill of particulars, but not the evidence presented at trial. State v. Greco, supra, 216 Conn. 291. This test is not a conclusive presumption of law but, rather, is a rule of statutory construction and should not be controlling where there is a clear indication of contrary legislative intent. State v. Braswell, 42 Conn. App. 264, 269, 679 A.2d 407 (1996), appeal dismissed, 243 Conn. 248, 701 A.2d 1057 (1997). “The determinative question is whether the legislature intended the offenses to be separate.” Id. We recognize that a substantial overlap in the proof required does not necessarily make the two offenses the same legislatively.

Because the defendant has not shown a clear legislative intent to the contrary, the Blockburger test is controlling. See State v. Nixon, 231 Conn. 545, 563, 651 A.2d 1264 (1995). We conclude that the two crimes charged are not the same offense and that there was no double jeopardy violation when the defendant was sentenced for violations of both §§ 53a-86 and 53-21. Count three of the charging document, i.e, risk of injury to a child, imposes criminal liability for doing any act “likely to impair the health or morals of any . . . child [under the age of sixteen] . . . .” General Statutes (Rev. to 1991) § 53-21. Count one of the charging document, charging promoting prostitution, imposes criminal liability when one “knowingly ... (2) advances or profits from prostitution of a person less than sixteen years old.” General Statutes § 53a~86.

An act of promoting prostitution does not necessarily constitute a violation of the statute that prohibits risk of injuiy to a child, and vice versa. Promoting prostitution requires a specific intent; the actor must “knowingly advance or profit from prostitution of a person less than sixteen years old.” Risk of injury to a child, as charged, i.e., that the defendant “did commit certain acts likely to impair the morals” of M, requires no such mental element. Similarly, while risk of injury requires that the defendant commit an act “likely to impair the morals” of a child, promoting prostitution does not. Because each statute requires proof of a fact or facts that the other does not, they are not the same offense under Blockburger and, therefore, there is no double jeopardy violation.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-86 (a) provides: “A person is guilty of promoting prostitution in the first degree when he knowingly: (1) Advances prostitution by compelling a person by force or intimidation to engage in prostitution, or profits from coercive conduct by another; or (2) advances or profits from prostitution of a person less than sixteen years old.”

       General Statutes (Rev. to 1991) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.” Section 53-21 was not amended during the period relevant to this case.

       Practice Book § 60-5 provides in relevant part: “The court 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. ...”

       During oral argument, the defendant acknowledged that evidence concerning the defendant’s use of drugs might have actually been beneficial to the defendant in that it allowed the jury to assign a reason for the defendant’s actions, i.e., drug dependency.

       This claim was not raised before the trial court. Nevertheless, double jeopardy claims arising in the context of a single trial that are raised for the first time on appeal are reviewable. State v. Chicano, 216 Conn. 699, 705, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991); see also State v. Foster, 45 Conn. App. 369, 384 n.17, 696 A.2d 1003, cert. denied, 243 Conn. 904, 701 A.2d 335 (1997).

       In fact, the origins and purposes of the two offenses are different. The clear purpose of the risk of injury statute is to “protect the well-being of children.” State v. Payne, 40 Conn. App. 1, 7, 669 A.2d 582 (1995), aff'd, 240 Conn. 766, 695 A.2d 525 (1997). The primary purpose of the promotion of prostitution offense is to prevent acts or solicitations of prostitution, with victimization of children as one of the factors affecting the degree of penalty. See General Statutes § 53a-86. It is clear that, the legislature intended and authorized cumulative punishments for violations of these two statutes.

       One advances prostitution when one “knowingly causes or aids a person to commit or engage in prostitution, procures or solicits patrons for prostitution, provides persons or premises for prostitution purposes, operates or assists in the operation of a house of prostitution or a prostitution enterprise, or engages in any other conduct designated to institute, aid or facilitate an act or enterprise of prostitution.” General Statutes § 53a-85 (1).


source: Caselaw Access Project

author: STOUGHTON, J.

license: Public Domain

text:
    JAMES H. RACZKOWSKI v. ZONING COMMISSION OF THE TOWN OF NAUGATUCK ET AL.
    (AC 17729)
    (AC 17737)
    Spear, Hennessy and Stoughton, Js.
    Argued February 18
    officially released June 8, 1999

      Robert A. Fuller, for the appellant (named defendant).

      Franklin G. Pilicy, for the appellant (defendant Nichols Realty, LLC).

      J. Brendan Sharkey, for the appellee (plaintiff).
   Opinion

STOUGHTON, J.

The defendants, Naugatuck Zoning Commission (commission) and Nichols Realty, LLC (Nichols), appeal from the judgment of the trial court sustaining the plaintiff James H. Raczkowski’s appeal from the commission’s decision granting Nichols’ application for a special permit to excavate sand and gravel in connection with approval of a residential subdivision application. We reverse the judgment of the trial court.

The record reveals the following relevant facts. Nichols obtained approval for a thirty-nine lot subdivision on a 50.16 acre tract in an R-15 residential zone in Naugatuck. The subdivision lots are oversized and average about one acre each. To develop the site as proposed, Nichols had to obtain a special permit for the excavation of approximately 300,000 cubic yards of sand and gravel from the northeast portion of the tract. The commission held two public hearings and conducted a site inspection.

The commission approved Nichols’ request for a special permit, subject to certain conditions. The plaintiff thereafter appealed to the trial court from the commission’s decision, claiming that the commission had acted arbitrarily, capriciously and in abuse of its discretion because, inter alia, it failed to consider all of the zoning regulation requirements for issuing such permits. The trial court found that the plaintiff was aggrieved and sustained the appeal, concluding that the record lacked substantial evidence to support the commission’s determination that the defendants had satisfied §§ 31.4.5 and 31.4.7 of the Naugatuck zoning regulations.

The defendants filed separate petitions for certification for review. Following the granting of these petitions on October 8, 1997, the defendants filed separate appeals.

On appeal, the defendants claim that the trial court improperly (1) concluded that the special permit was not supported by substantial evidence in the record, (2) substituted its interpretation of § 31.4.7 of the Nau-gatuck zoning regulations for that of the commission and (3) substituted its judgment for that of the commission regarding whether the special permit complied with the zoning regulations. We agree.

I

“Review of zoning commission decisions by the Superior Court is limited to a determination of whether the commission acted arbitrarily, illegally or unreasonably. ... In appeals from administrative zoning decisions, the commission’s conclusions will be invalidated only if they are not supported by substantial evidence in the record. . . . The substantial evidence rule is similar to the ‘sufficiency of the evidence’ standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.” (Citations omitted.) Cybulski v. Planning & Zoning Commission, 43 Conn. App. 105, 110—11, 682 A.2d 1073, cert. denied, 239 Conn. 949, 686 A.2d 123 (1996).

Before addressing the defendants’ claims, we must first review certain legal principles and several of the town’s zoning regulations relevant to our decision. “A special permit allows a property owner to use his property in a manner expressly permitted by the local zoning regulations. . . . The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience, and property values. . . . Acting in this administrative capacity, the [zoning commission’s] function is to determine whether the applicant’s proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and the statute are satisfied.” (Internal quotation marks omitted.) Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 46 Conn. App. 566, 569, 700 A.2d 67, cert. denied, 243 Conn. 935, 702 A.2d 640 (1997).

Moreover, “ [i]t is well settled that in granting a special permit, an applicant must satisf[y] all conditions imposed by the regulations. . . . The zoning commission has no discretion to deny the special exception if the regulations and statutes are satisfied.” Id.

“Courts are not to substitute their judgment for that of the board . . . and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing. . . . Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons. . . . We, in turn, review the action of the trial court. . . . The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs. . . . Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980).” (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995). Furthermore, in reviewing the conclusions of a zoning authority, “ [c] ourts must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their actions.” (Internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 596, 628 A.2d 1286 (1993).

Section 31.1 of the Naugatuck zoning regulations forbids the alteration of the contours of land by excavation, removal or relocation of earth, gravel, or stone, except by special exception. Under § 31.4, the zoning commission may grant a special permit after a properly noticed public hearing if an applicant satisfies thirteen specific conditions and requirements of the regulations. Section 31.5 provides, in part, that each special permit shall be valid for a period of two years or less, and that after a public hearing on due notice the commission may grant extensions.

With these legal principles and zoning regulations in mind, we now address the merits of the defendants’ claims concerning the special permit and whether the commission’s decision was supported by substantial evidence in the record.

A

The defendants contend that the record contains substantial evidence from which the commission could have determined that a special permit allowing the excavation of sand and gravel would not violate § 31.4.5 by adversely affecting property values in the area. We agree.

“Substantial . . . evidence is that which carries conviction. It is such evidence as a reasonable mind might accept as adequate to support a conclusion. It means something more than a mere scintilla and must do more than create a suspicion of the existence of the fact to be established.” (Internal quotation marks omitted.) Board of Education v. Commission on Human Rights & Opportunities, 176 Conn. 533, 538, 409 A.2d 1013 (1979). Such evidence exists if “ ‘the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.’ ” Office of Consumer Counsel v. Dept. of Public Utility Control, 246 Conn. 18, 36, 716 A.2d 78 (1998).

Our review of the record reveals substantial evidence to support a finding of conformity with § 31.4.5. Robert J. Nocera, a licensed and certified real estate appraiser and civil engineer, provided testimony and a lengthy report to the commission on behalf of Nichols indicating that (1) under Nichols’ development plan it would take three years to remove the sand and gravel, (2) there would be no negative impact on property values during that time, (3) the additional development of good quality homes would have a positive effect on property values and (4) upon completion of the subdivision, there would be a long-term, positive benefit to the neighborhood, resulting in increased overall property values.

In its memorandum of decision, the trial court opined that “[a]fter the expiration of the two year special permit term, together with the possible one year extension, the excavation process at best [would] only be approximately 60 percent finished.” The court also stated that “[t]he potential adverse impact on neighboring residential properties, in terms of aesthetics, environment and length of the excavation process, is obvious. There is nothing in the record indicating that the commission or appraiser ever considered these extremely material matters.”

“Conclusions reached by [a zoning] commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission], . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached. . . . Calandro v. Zoning Commission, 176 Conn. 439, 440, 408 A.2d 229 (1979).” (Internal quotation marks omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 513, 636 A.2d 1342 (1994). “The settled standard of review of questions of fact determined by a zoning authority is that a court may not substitute its judgment for that of the zoning authority as long as it reflects an honest judgment reasonably exercised. . . . The court’s review is based on the record, which includes the knowledge of the board members gained through personal observation of the site ... or through their personal knowledge of the area involved.” (Citations omitted; internal quotation marks omitted.) Cybulski v. Planning & Zoning Commission, supra, 43 Conn. App. 111.

Because our review of the record reveals a substantial basis of fact from which the zoning commission reasonably could have concluded that the regulation requirements for issuing a special permit were satisfied, we conclude that the trial court improperly substituted its judgment for that of the commission.

B

The defendants next claim that the trial court improperly concluded that there was no evidence in the record to support the commission’s finding that Nichols’ application for a special permit satisfied § 31.4.7 and that the commission could have found that Nichols’ application for a special permit complied with § 31.4.7. We agree.

Section 31.4.7 provides that “there be no excavation to depth of less than six feet above any ledge, rock or the water table.” Our review of the record reveals evidence that approximately 150 test borings were made on the property, to depths of between eight and twelve feet, in connection with the proposed septic systems. No ledge was encountered in any of these borings, nor was any seen during a site visit by members of the commission. Indeed, although there was testimony that ledge existed somewhere on another parcel across the street from the subject property, there was no evidence presented that any ledge existed on the subject property.

The trial court, in its memorandum of decision, concluded that evidence concerning test borings made on the subject property either for the purpose of evaluating the suitability of the soils for septic systems or for determining whether ledge existed did not constitute substantial evidence to support the zoning commission’s determination because of conflicting testimony from a defense witness concerning the number and depth of the test borings. The trial court then concluded that it was clear that the “existence or nonexistence of ledge on the subject property cannot be determined by these pits. In light of the depth and purpose of these pits, their results cannot be considered substantial evidence.”

Finally, the trial court cited the fact that the minutes of the site visit conducted by the commission members did not disclose that the ledge issue was discussed as further support for the court’s conclusion that “the evidence before the commission did not afford a substantial basis of fact from which the lack of ledge could reasonably be inferred.”

As we stated in part IA of this opinion, the trial court’s function is to determine whether there was evidence in the record to support the commission’s decision; West Hartford Interfaith Coalition, Inc. v. Town Council, supra, 228 Conn. 513; and the trial court may not substitute its judgment for that of zoning commission “as long as it reflects an honest judgment reasonably exercised.” Cybulski v. Planning & Zoning Commission, supra, 43 Conn. App. 111.

Because our review of the record reveals a substantial basis of fact from which the finding that there was no ledge could be inferred, we conclude that the trial court improperly determined that the evidence before the commission did not afford a substantial basis from which that determination reasonably could be inferred and substituted its judgment for that of the zoning commission.

II

The defendants next claim that the trial court substituted its interpretation of § 31.4.7 of the Naugatuck zoning regulations for that of the commission in rejecting, as insufficient, the evidence disclosing that no ledge had been discovered. Having concluded in part I B of this opinion that the trial court improperly determined that the evidence before the commission did not afford a substantial basis from which the absence of ledge reasonably could be inferred and substituted its judgment for that of the zoning commission, we need not address this claim.

III

The defendants claim last that the trial court improperly substituted its judgment for the commission’s decision that the special permit complied with the zoning regulations. We agree. As we discussed in parts I and II, the commission’s decision was reasonable and supported by substantial evidence in the record.

The judgment is reversed and the case is remanded with direction to render judgment dismissing the plaintiffs appeal.

In this opinion the other judges concurred.

       An R-15 zone permits 15,000 square foot building lots.

       General Statutes § 8-8 (b) provides in relevant part that “any person aggrieved by any decision of a board may take an appeal to the superior court . . . .”
      General Statutes § 8-8 (a) (1) provides in relevantpart: “ ‘Aggrievedperson’ means a person aggrieved by a decision of a board .... In the case of a decision by a zoning commission . . . ‘aggrieved person’ includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.” The border of the plaintiffs land is within 100 feet of the tract for which Nichols had been granted a permit to excavate sand and gravel.

       Naugatuck Zoning Regs., § 31.4.5, requires that “the proposed excavation . . . not depress land values or adversely affect surrounding property in the neighborhood . . . .”

       Naugatuck Zoning Regs., § 31.4.7, provides that “there be no excavation to depth of less than six feet above any ledge, rock or the water table . . . .”

       Naugatuck Zoning Regs., § 31.1, provides in relevant part: “No contours of any land shall be altered by excavation, removal or relocation of earth, loam, topsoil, and, gravel, clay, stone or minerals . . . contours shall be permitted only as a special exception . . . .”

       Naugatuck Zoning Regs., § 31.4, provides in relevant part: “Within 65 days after receipt of a complete application, the . . . Zoning Commission shall hold a public hearing .... Notice of the time and place of such hearing shall be published in a newspaper having a substantial circulation in the Borough at least twice .... The . . . Zoning Commission shall decide upon such application within 65 days after the hearing. . . .The. . . Zoning Commission may grant a SPECIAL PERMIT, subject to appropriate conditions and safeguards, to permit . . . alteration or contours over a limited period of time, if it shall find that the following conditions are met . . . .”

       Of the thirteen specific conditions and requirements set forth in the Naugatuck zoning regulations, §§ 31.4.1 through 31.4.13, only §§ 31.4.5 and 31.4.7 are at issue in this appeal. The text of these sections is set out in footnotes 3 and 4.

       See footnote 3. Our review of the record reveals that at the commission’s regular meeting on March 20, 1996, the chairman opined that Nichols had met all the requirements of the special permit and another commission member remarked that administratively Nichols had “done everything right.”

       While there were discussions early in the proceedings that the entire excavation process might take five years, subsequent estimates were based on a three year excavation period.


text:
    THELMA PERKINS v. COLONIAL CEMETERIES, INC., ET AL.
    (AC 19181)
    Foti, Hennessy and Sullivan, Js.
    Considered March 10
    officially released June 8, 1999

      Christopher C. Burdett, in favor of the motion.

      Joel M. Fain, in opposition to the motion.
   Opinion

FOTI, J.

The defendants have appealed to this court following the trial court’s orders denying their motion to set aside the plaintiffs verdict and their motion for remittitur. The plaintiff now moves to dismiss the defendants’ appeal for lack of a final judgment because the trial court has not yet decided the plaintiffs claim for punitive damages under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. We agree that the appeal is premature and, therefore, grant the plaintiffs motion to dismiss.

The plaintiff, Thelma Perkins, brought this action against the defendants, Colonial Cemeteries, Inc., doing business as Fairfield Memorial Park, and its president Phyllis O. Dowd, alleging that they had illegally and improperly moved her daughter’s grave. The plaintiffs complaint alleged, inter alia, breach of contract, negligence, fraudulent misrepresentation and violations of CUTPA. The jury found for the plaintiff on each count of her complaint and awarded her $2525 in economic damages, $500,000 in noneconomic damages and $167,508.17 in common-law punitive damages. The trial court accepted the verdict on December 3, 1998. Punitive damages under CUTPA, however, were not decided by the trial court prior to the entry of judgment.

On December 11, 1998, the defendants filed a motion to set aside the verdict and a motion for remittitur, both of which the trial court denied on December 17, 1998. The disposition record indicates that judgment was entered on the verdict on that date. See Gordon v. Feldman, 164 Conn. 554, 557, 325 A.2d 247 (1973). The defendants appealed following the trial court’s denial of their motions, and the plaintiff moved to dismiss the defendants’ appeal, arguing that there was no final judgment because the trial court had not yet decided whether to award the plaintiff punitive damages under CUTPA. The defendants filed an objection to the plaintiffs motion to dismiss.

This court has previously determined that no final judgment exists until common-law punitive damages have been decided. Lord v. Mansfield, 50 Conn. App. 21, 28, 717 A.2d 267, cert. denied, 247 Conn. 943, 723 A.2d 321 (1998). The issue in the present case, however, is whether there is a final judgment after the jury has found liability under CUTPA, but before the trial court has decided punitive damages on the CUTPA claim.

In Paranteau v. DeVita, 208 Conn. 515, 544 A.2d 634 (1988), our Supreme Court considered whether there was a final judgment in an action involving a CUTPA claim when the trial court had rendered a judgment on the merits of the case, but had not yet determined the issue of attorney’s fees. In Paranteau, the plaintiffs brought a suit against their landlord alleging, inter alia, a CUTPA violation. On May 27, 1987, the trial court rendered judgment on the merits in favor of the plaintiffs on all counts of their complaint. Subsequently, on June 18, 1987, the trial court awarded the plaintiffs attorney’s fees under their CUTPA count. Thereafter, on June 26,1987, the defendant appealed from both the May 27, 1987 judgment on the merits and the June 18, 1987 award of attorney’s fees. The plaintiffs filed a motion to dismiss the appeal as untimely, which this court granted. The defendant then appealed to the Supreme Court, which held “that a judgment on the merits is final for purposes of appeal even though the recoverability or amount of attorney’s fees for the litigation remains to be determined.” Id., 523. Accordingly, the Supreme Court dismissed as untimely that portion of the defendant’s appeal that challenged the trial court’s May 27, 1987 judgment on the merits. Id.

Unlike in Paranteau, no judgment on the merits has been rendered in the present case. Under CUTPA, once there is a finding of liability by the jury, the trial court may then, “in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.” General Statutes § 42-1 lOg (a). While the CUTPA statutes do not provide a method for determining punitive damages, courts generally award punitive damages in amounts equal to actual damages or multiples of the actual damages. Staehle v. Michael’s Garage, Inc., 35 Conn. App. 455, 462-63, 646 A.2d 888 (1994).

In the present case, although the jury has found the defendants to be liable under CUTPA, the trial court has yet to determine the plaintiffs punitive damages under General Statutes § 42-1 lOg (a). Therefore, while the defendants are aggrieved by the judgment of the trial court; General Statutes § 52-263; their appeal does not satisfy the final judgment test established in State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983). That test permits an interlocutory appeal “in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” Id., 31. Because the trial court has yet to exercise its discretion to award the plaintiff punitive damages under the CUTPA count of her complaint, the rights of the parties have not been “so conclud[ed] . . . that further proceedings cannot affect them.” Id; see also Pinnix v. LaMorte, 182 Conn. 342, 343, 438 A.2d 102 (1980). In fact, because the courts generally award punitive damages in amounts equal to actual damages or multiples of the actual damages, the rights of the parties may be substantially affected by the further proceedings that remain in this case. We, therefore, conclude that the second prong of the Curdo test is not satisfied.

The appeal is dismissed for lack of a final judgment.

In this opinion the other judges concurred.

       The plaintiffs prayer for relief included a request for compensatory damages, punitive damages, attorney’s fees and costs.

       The Paranteau court, however, expanded “the scope of [its] inquiry beyond claims brought under CUTPA to include any claim where a judgment on the merits is rendered prior to an award of attorney’s fees.” Paranteau v. DeVita, supra, 208 Conn. 516.

       General Statutes § 42-110g (d) provides in relevant part: “In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys’ fees based on the work reasonably performed by an attorney and not on the amount of recovery. . . .”


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. JOHN BOWMAN, JR.
    (AC 17922)
    O’Connell, C. J., and Sullivan and Spallone, Js.
    Argued March 22
    officially released June 8, 1999

      Theresa M. Dalton, assistant public defender, for the appellant (defendant).

      Robert J. Scheinblum, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David P. Gold, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, John Bowman, Jr., appeals from the judgment of conviction following a jury trial, of the crime of manslaughter in the first degree with a firearm as an accessory in violation of General Statutes §§ 53a-55a, 53a-55 (a) (1) and 53a-8. The defendant claims that the trial court improperly charged the jury on consciousness of guilt, reasonable doubt and the jurors’ duties. We do not agree.

The defendant concedes that he neither submitted a request to charge on these issues nor were they properly preserved by his objecting to the instructions given, and he seeks review pursuant to State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

“It is well settled that a jury instruction is to be examined in its entirety, and that the test to be applied is whether the charge as a whole presents the case to the jury so that no injustice will be done. State v. Derrico, 181 Conn. 151, 170, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980). State v. Lytell, 206 Conn. 657, 664, 539 A.2d 133 (1988); see also State v. Findlay, 198 Conn. 328, 346-47, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986). State v. Hines, [243 Conn. 796, 818-19, 709 A.2d 522 (1998)].” (Internal quotation marks omitted.) State v. Clark, 48 Conn. App. 812, 821, 713 A.2d 834, cert. denied, 245 Conn. 921, 717 A.2d 238 (1998).

After a plenary review of the record, transcripts, briefs and the trial court’s instructions to the jury, we determine that there was nothing improper about the trial court’s charge to the jury; the defendant’s claims here do not meet the third prong of Golding in that no constitutional violation exists.

The judgment is affirmed.

       Under State v. Golding, supra, 213 Conn. 239-40, the defendant can prevail on an unpreserved claim of constitutional error “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.”


author: O’CONNELL, C. J.

text:
    STATE OF CONNECTICUT v. SAMUEL SPIVEY
    (AC 18028)
    O’Connell, C. J., and Schaller and Spear, Js.
    Argued March 2
    officially released June 8, 1999

      Jeremiah Donovan, with whom, on the brief, was Alix Biel, law student intern, for the appellant (defendant).

      Robert M. Spector, deputy assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and Russell C. Zentner, assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, C. J.

The defendant appeals from the judgment of conviction, rendered following a jury trial, of three counts of sale of a narcotic substance by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and three counts of sale of a controlled substance within 1500 feet of a school in violation of General Statutes § 21a-278a (b). The defendant claims that the trial court improperly (1) admitted hearsay evidence, (2) instructed the jury on the state’s burden of proof and (3) admitted evidence of uncharged misconduct. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Officer Richard Batts of the Middletown police department was an undercover officer in a sting operation aimed at apprehending local drug dealers. Batts wore a body wire that allowed his backups, Sergeant Frank Violissi and Officer Jack Harris, to monitor his transactions; the monitoring device, however, did not record any conversations.

Batts purchased drugs from the defendant on four separate occasions, each time approaching the defendant and asking him for a “twenty.” The defendant would leave, return minutes later and hand Batts a package. Immediately after the first narcotics purchase, Batts met Violissi and Harris and identified the defendant from an array of photographs. Soon thereafter, Harris field-tested the substance Batts purchased, which proved to be cocaine. Each subsequent purchase also proved to be cocaine. On one occasion, the defendant told Batts that he “would be selling all night and that if Batts came back later, he would give him a bigger piece.” Both Violissi and Harris identified the defendant’s voice as that of the drug dealer and testified to the nature of the conversations they heard over the wire.

I

The defendant claims that the trial court abused its discretion by allowing Violissi and Harris to testify concerning the conversations they heard on the monitoring device. He contends that these conversations do not fall under the hearsay exception for admissions of a party opponent. We do not agree.

“ ‘The words and acts of a party-opponent are generally admissible against him [or her] under the admission exception.’ ” Willow Funding Co., L.P. v. Grencom Associates, 246 Conn. 615, 620, 717 A.2d 1211 (1998). “Under the admissions of a party opponent exception to the hearsay rule, evidence must be offered against the party that made the admission.” Martins v. Connecticut Light & Power Co., 35 Conn. App. 212, 228, 645 A.2d 557, cert. denied, 231 Conn. 915, 648 A.2d 154 (1994).

Violissi and Harris both heard the defendant offer to sell drugs to Batts. Violissi heard the defendant say that he would be receiving a shipment of crack cocaine between 9 and 10 p.m. that evening. Moreover, Violissi heard the defendant negotiate the sale of an “8-ball” of cocaine for $170 and that the defendant said that he would be selling until 5 a.m. This is clearly an admission, admissible under the hearsay exception. “An admission, as applied to criminal cases, is the avowal or acknowledgment of a fact or of circumstances from which guilt may be inferred, and only tending to prove the offense charged, but not amounting to a confession of guilt.” (Emphasis in original; internal quotation marks omitted.) State v. Stepney, 191 Conn. 233, 250, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).

These statements are relevant and material to the issues because the jury reasonably may have inferred from their content that they manifested the defendant’s conscious and continuing resolve to sell drugs. It is reasonable to conclude that the jury would find these statements highly probative because they tended to show the defendant’s intent and motive at the time of the drug sales. “The trial court’s discretionary determination that the probative value of evidence is not outweighed by its prejudicial effect will not be disturbed on appeal unless a clear abuse of discretion is shown.” State v. Joly, 219 Conn. 234, 253, 593 A.2d 96 (1991).

In light of these facts, we conclude that the trial court did not abuse its discretion in admitting the officers’ testimony under the admission of a party opponent exception to the hearsay rule.

II

The defendant next argues that the trial court’s instructions improperly shifted the burden of proof to the defendant and that the trial court failed to instruct the jury or give a limiting instruction. We do not agree.

“It is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Austin, 244 Conn. 226, 235, 710 A.2d 732 (1998).

The defendant claims that one sentence in the jury instruction shifted the burden of proof to the defendant. When the charge is read in its entirety, the instruction clearly shows that the trial court unequivocally stated that the state has the burden of proof. The defendant is attempting to isolate one sentence in the charge. Our review of the charge as a whole shows that there was no ambiguity in the fact that the jury was instructed that the state had to prove each element beyond a reasonable doubt. The isolated misstatement was not significant enough to mislead the jury.

Ill

The defendant next claims that the trial court improperly admitted evidence of a prior incident of uncharged misconduct. Additional facts are necessary for the resolution of this issue. From December, 1995, through January, 1996, the defendant was involved in four drug transactions with Batts. The defendant, however, is charged only with the last three of these drug transactions. The defendant contends that the trial court improperly admitted evidence of the uncharged transaction.

“ ‘[E]vidence of prior misconduct is not per se inadmissible. The trial court, in analyzing the admissibility of the evidence, must apply a two-prong test. First, the court must conclude that the offered evidence is relevant and material to one of the enumerated exceptions, e.g., motive, intent and identity. Second, the court must conclude that the probative value of the evidence outweighs its inevitable prejudicial effect.’ ” State v. Lopez, 14 Conn. App. 536, 538-39, 541 A.2d 902 (1988).

The trial court found that Violissi and Harris had known the defendant for years, were familiar with his voice and were able to identify the defendant’s voice as that of the drug dealer they heard over the wire. The state contends that this evidence falls under the exception that “ ‘evidence of prior misconduct is admissible for the limited purposes of showing intent, an element in the crime, identity, malice, motive or a system of criminal design.’ ” States. Cepeda, 51 Conn. App. 409, 430, 723 A.2d 331, cert. denied, 248 Conn. 912, 732 A.2d 180 (1999). We agree.

Here, there is no question that Batts purchased drugs from the defendant on one occasion prior to the sales with which he is charged and that the prior transaction was relevant to Batts’ ability positively to identify the defendant as the person who had sold him drugs. The evidence showed that immediately following the purchase of cocaine on the charged occasions, Batts was able to identify the defendant as the man who had sold him drugs. This uncharged incident was probative of the defendant’s identity. State v. Lopez, supra, 14 Conn. App. 539. The trial court properly admitted the evidence of misconduct under this exception.

The defendant argues that even if the evidence falls under this exception, it was highly prejudicial. A trial court’s admission of evidence that a defendant previously engaged in drug related activity is not necessarily unfairly prejudicial. State v. Jenkins, 24 Conn. App. 330, 337, 588 A.2d 648, cert. denied, 219 Conn. 903, 593 A.2d 132 (1991). In addition, the evidence of uncharged misconduct was presented to the jury following a limiting instruction to use this evidence solely on the issue of identity. The trial court emphasized the fact that the evidence could not be used to prove that the three other transactions had occurred, which lessened its potential prejudicial effect. See State v. Cepeda, supra, 51 Conn. App. 431. The trial court reasonably could have concluded that the probative value of such evidence outweighed its prejudicial tendency. Accordingly, we conclude that the trial court did not abuse its discretion in admitting evidence of the defendant’s prior misconduct.

The judgment is affirmed.

In this opinion the other judges concurred.

       The relevant portion of the trial court’s jury instruction was as follows: “The burden to prove the defendant guilty of the crime charged is upon the state. The defendant does not have to prove his innocence. This means that the state must prove beyond a reasonable doubt each and every element necessary to constitute the crimes charged. Whether the burden of proof resting upon the defendant is sustained depends not on the number of witnesses nor on the quantity of the testimony, but rather it depends on the nature, quality and accuracy of the testimony.” (Emphasis added.)

       The charged offenses occurred on December 29, 1995, January 3 and January 11, 1996.


text:
    ROGER J. STROLLO ET AL. v. MARIE T. IANNANTUONI ET AL.
    (AC 18551)
    O’Connell, C. J., and Landau and Sullivan, Js.
    Argued March 18
    officially released June 8, 1999

      Kevin J. Hecht, for the appellants (plaintiffs).

      Walter A. DeAndrade, for the appellees (defendants).
   Opinion

O’CONNELL, C. J.

The plaintiffs appeal from the trial court’s judgment granting them an easement by necessity across the defendants’ property. The plaintiffs claim that the trial court improperly limited the scope of the easement to twenty feet in width, and restricted the use of the easement to benefit only farming and recreational activities. We affirm the judgment of the trial court.

In their complaint, the plaintiffs allege that they “do not have an unobstructed, open or reliable means of ingress or egress to their property except over the defendants’ property which fronts on Marion Road, and without such access their property is effectively landlocked.” On appeal, the parties do not dispute the existence of a legal foundation for the imposition of an easement by necessity over the defendants’ property. The sole issue, is whether the easement should have been fifty feet, not twenty feet, in width and whether the easement should not have been limited to benefit farming and recreational activities on the plaintiffs’ property.

The determination of the scope of an easement is a question of fact. Gioielli v. Mallard Cove Condominium. Assn., Inc., 37 Conn. App. 822, 833, 658 A.2d 134 (1995). “When the factual basis of a trial court decision is challenged, our scope of review is limited to a determination of whether the facts set out in the memorandum of decision are supported by the evidence, or whether, in light of the evidence and pleadings in the whole record, those facts are clearly erroneous.” Id., 823.

The record discloses that the plaintiffs’ land historically had been used solely for agricultural pursuits and that the plaintiffs never alleged any claim to change the use of their property. The trial court found, however, that the plaintiffs were considering a major alteration in their property’s use. In the memorandum of decision, the trial court stated in relevant part: “Roger Strollo testified that he would like to put a subdivision on his property and requires a fifty foot wide easement to do so. The court does not agree, however, that it is reasonably essential to the plaintiffs’ use of their property to impose an easement of necessity that is fifty feet wide on the defendants’ property simply to accommodate the plaintiffs’ desire to profit from a potential subdivision. Moreover, the creation of such a right-of-way would work a serious inequity on the defendants.”

The trial court continued that “[i]n considering of the surrounding circumstances, the nature of the land and the conduct of the parties, and in balancing the equities present in this case, the court concludes there is a reasonable necessity for a right-of-way over the defendants’ land to accommodate the farming and recreational activities for which this land seems eminently suited. The court will order an easement by necessity in accordance with this conclusion.”

The “use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit.” (Internal quotation marks omitted.) Kuras v. Kope, 205 Conn. 332, 341, 533 A.2d 1202 (1987). “The decision as to what would constitute a reasonable use of a right-of-way is for the trier of fact whose decision may not be overturned unless it is clearly erroneous.” (Internal quotation marks omitted.) Gioielli v. Mallard Cove Condominium, Assn., Inc., supra, 37 Conn. App. 833. The trial court found that a twenty foot wide right-of-way was sufficient to allow a reasonable and beneficial use of land and that the property has always been used in accordance with the zoning regulations that permit farming and recreational use. We hold that the trial court’s conclusion was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court’s order stated: “There shall be an easement by necessity located on the northerly border of defendants’ property, which is shown as parcel 1 in exhibits I and S, and directly adjacent to the southerly border of Bird Lane, 20’ in width and extending westerly 400’ feet from Marion Road to the easterly border of the plaintiffs’ property, which is shown as Parcel 10 in exhibits I and S. The plaintiffs shall bear the burden of creating and maintaining this right-of-way. The purpose of this easement is to provide beneficial use of the land for farming and recreational activities, as permitted by the zoning laws of the Town of Cheshire. It is subject to the common law regarding continuing necessity.”


text:
    STATE OF CONNECTICUT v. JOHN VASQUEZ
    (AC 17951)
    Foti, Hennessy and Stoughton, Js.

      Argued March 23
    officially released June 8, 1999

      Frank P. Cannatelli, for the appellant (defendant).

      Michele C. Lukban, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Victor Carlucci, Jr., assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, John Vasquez, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics in violation of General Statutes § 2 la-279 (a), sale of narcotics in violation of General Statutes § 21a-277 (a), and sale of narcotics within 1500 feet of a school in violation of General Statutes § 21a-278a (b).

The defendant claims that (1) there was insufficient evidence to support his conviction, (2) his conviction of possession of narcotics and sale of narcotics were unconstitutional both in placing a burden on him to prove an affirmative defense of drug dependency and in violation of his constitutional right against double jeopardy and (3) the trial court abused its discretion in failing to consider whether the defendant was drug-dependent when it sentenced him. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On January 11,1995, at approximately 3 p.m., law enforcement officers were conducting an undercover narcotics investigation in the Newhallville section of New Haven. Detective Michael Henry drove down Starr Street toward Winchester Avenue seeking to purchase narcotics. He observed two black men, stopped his vehicle and indicated that he wanted to purchase “two pieces” of cocaine. One of the two approached Henry and handed him one piece of cocaine in a plastic bag. Henry gave the man $20. This man wore a black coat, light colored jeans, an unusually wide belt and a dark colored hat. Henry told the man that he wanted two pieces. The seller stated that he did not have any more and gave Henry $10 in change. Henry then left the area and broadcast a description of the seller. Henry drove to a prearranged location where he met with other police officers. The contents of the bag field-tested positive for cocaine in salt form, totaling 0.22 grams.

Within minutes of Henry’s radio transmission of the seller’s description, Karen Hale, a New Haven police officer, and her partner proceeded to the area where she observed the defendant, who fit the description given by Henry, standing in front of the same building where the sale had taken place. She knew the man from prior incidents and identified him as the defendant. Hale thereafter prepared a photographic array consisting of pictures of eight men with similar features, one of whom was the defendant. Henry immediately identified the defendant’s photograph as being that of the person who had sold him the narcotics. A videotape, approximately thirty minutes in length, of the transaction between Henry and the defendant, which showed the activity in the area before and after the narcotics transaction, and focused on the defendant, was also admitted as evidence.

I

The defendant claims that there was insufficient evidence of the identity of the seller from which the jury could convict him. He claims that Hale’s testimony is not credible because she testified that the defendant was standing alone when she saw him, yet the videotape shows another man wearing a bright red jacket.

“In reviewing a sufficiency [of the evidence] claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993). “[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 132, 646 A.2d 169 (1994). “On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” Id., 134.

The issue of identification is a question of fact to be resolved by the jury. State v. Rivera, 32 Conn. App. 193, 202, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993). Identification may be shown by circumstantial as well as by direct evidence. State v. Sparks, 39 Conn. App. 502, 515, 664 A.2d 1185 (1995). Moreover, “[i]n considering the evidence introduced in a case, [jJuries are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) Id., 517; see also State v. Riccio, 41 Conn. App. 847, 852, 678 A.2d 981, cert. denied, 239 Conn. 908, 682 A.2d 1011 (1996).

The evidence presented to the jury, which it obviously accepted as credible, was that Hemy positively identified the photograph of the defendant as that of the man who had sold him the narcotics, made an in-court identification of the defendant and testified that he was absolutely positive that the defendant was the man who had sold him the narcotics. The jury has the sole and absolute responsibility to determine the credibility of the witnesses. State v. Pinnock, 220 Conn. 765, 778-79, 601 A.2d 521 (1992). Even if the jury had not considered Hale’s testimony to be credible, the evidence was still clearly sufficient as to identification, based solely on Henry’s testimony. We conclude that the jury had sufficient evidence to identify the defendant as the seller of the narcotics.

II

The defendant next claims that his constitutional rights were violated in that the state’s burden of proof was diluted by the fact that he bore the burden of showing that he was drug-dependent and that his conviction for both possession and sale of narcotics violated the prohibition against double jeopardy. We are not persuaded.

A

The defendant argues that he had to testify to persuade the jury of his drug dependency. The defendant claims that by so doing he had to admit impliedly to the illegal possession of narcotics, thereby effectively diluting the state’s burden of proof on the possession charge.

“The design and effect of § 21a-278 (b) is to punish persons who are not drug-dependent and sell narcotics more severely than drug-dependent persons who sell narcotics. The legislature accomplishes that goal by providing for a five year mandatory minimum sentence for those convicted under § 21a-278 (b). A drug-dependent person can escape liability under § 21a-278 (b), and thus the five year mandatory minimum sentence, by proving that he was drug-dependent at the time of the offense. State v. Januszewski, 182 Conn. 142, 167, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981) (clear meaning of clause relating to absence of drug dependency to exempt particular class of persons from operation of statute). A drug-dependent person could, however, be convicted under § 21a-277 (a), which does not consider drug dependency, but which also does not carry a mandatory minimum sentence. State v. Paredes, 35 Conn. App. 360, 372, 646 A.2d 234, cert. denied, 231 Conn. 925, 648 A.2d 166 (1994).” State v. Jenkins, 41 Conn. App. 604, 607, 679 A.2d 3 (1996).

By proving that he was drug-dependent at the time of the incident, the defendant assumes a posture akin to an affirmative defense, which does not relieve the state of its burden of proving beyond a reasonable doubt all of the essential elements of the possession of narcotics charge pursuant to § 21a-279 (a), or the sale of narcotics charge pursuant to § 21a-277 (a), as a lesser included offense of the original charge.

We also do not accept the defendant’s argument that by putting forth evidence of his drug dependency, he is in effect admitting possession of a narcotic substance; evidence of drug dependency is not the same as admitting possession at the time of the incident in question. See footnote 9. We, therefore, conclude that the state’s burden of proof was not unconstitutionally diluted.

B

The defendant next argues that his conviction on the first two counts of the information violates the prohibition against double jeopardy because it constitutes multiple punishments for the same offense.

“This argument has two prongs, each a necessary condition to its success: (1) the charges must arise out of the same transaction and (2) the charged crimes must be the same offense. Double jeopardy prohibits, inter aha, not only multiple trials, but also multiple punishments for the same offense in a single trial. . . .

“[T]he test for determining whether there are two offenses or only one [is articulated] in State v. Devino, 195 Conn. 70, 74, 485 A.2d 1302 (1985). . . . [T]he classic test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). . . . [T]his test . . . [refers] to the charging documents.” (Citations omitted; internal quotation marks omitted). State v. Sharpe, 195 Conn. 651, 654, 491 A.2d 345 (1985).

As to the first prong, the information provides, and the state admits, that the charges against the defendant arose from a single act or transaction. We, therefore, must engage in the second step of the analysis. Our Supreme Court has stated: “Because one may possess narcotics without selling them, a conviction for illegal sale of narcotics requires proof of a fact that a conviction for illegal possession does not. Because one may either possess narcotics legally yet sell them illegally or sell narcotics without possessing them ... a conviction for illegal possession . . . requires proof of a fact that a conviction for illegal sale does not. The crimes of which the defendant was convicted [are] different offenses . . . .” (Citation omitted.) State v. Devino, supra, 195 Conn. 75-76; see also State v. Hart, 23 Conn. App. 746, 758, 585 A.2d 103 (1991), rev’d on other grounds, 221 Conn. 595, 605 A.2d 1366 (1992).

In this case, the state was required to prove possession as an element of possession of narcotics and sale as an element of sale of narcotics. Neither of those elements is required to support a conviction of the other offense. Therefore, the defendant’s conviction for both possession and sale of narcotics did not place the defendant in jeopardy twice.

Ill

The defendant claims last that the trial court, when sentencing him, abused its discretion in failing to consider that he was drug-dependent. He asserts that the trial court should have stated why it did not consider various sentencing alternatives. We are not persuaded.

A sentencing judge has very broad discretion in imposing any sentence within the statutory limits, and may consider a wide variety of information upon which it has a reasonable and persuasive basis for relying. See State v. Barnes, 33 Conn. App. 603, 609, 637 A.2d 398 (1994), aff'd, 232 Conn. 740, 657 A.2d 611 (1995). This court should not interfere with that discretion. See State v. Huey, 199 Conn. 121, 126, 505 A.2d 1242 (1986).

The sentences imposed were within the statutory limits. In fact, the defendant was sentenced to less than the statutory maximum. The trial court properly set forth its underlying rationale. We conclude that the sentencing court need not state its reasons for not considering sentencing alternatives. This claim is therefore without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was convicted of sale of narcotics as a lesser included offense of the crime of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b).

       The defendant was sentenced to a period of incarceration of two and one-half years on the first count, a concurrent sentence of seven years on the second count, and a consecutive sentence of three years on the third count. The defendant’s total effective sentence is ten years.

         The fifth amendment to the United States constitution provides in relevant part: “No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb . . . .” The defendant does not argue a violation of his state constitutional rights; therefore, we will consider only his claim under the federal constitution. See State v. Joyce, 229 Conn. 10, 16 n.7, 639 A.2d 1007 (1994).

       At oral argument before this court, the defendant withdrew a fourth claim: “The court erred in denying the defendant’s motion for judgment of acquittal in light of the evidence presented at trial by the defendant who took the stand and maintained his innocence.”

       General Statutes § 21a-279 (a) provides in relevant part: “Any person who possesses or has under his control any quantity of any narcotic substance . . . for a first offense, may be imprisoned not more than seven years . . . .”

       General Statutes § 21a-277 (a) provides in relevant part: “Any person who manufactures, distributes, sells ... to another person ... a narcotic substance . . . for a first offense, shall be imprisoned not more than fifteen years . . . .”

       We note that the defendant was acquitted of violating General Statutes § 21a-278 (b), illegal sale of narcotics by a person who is not drag-dependant.

       Although this claim is unpreserved, the defendant’s double jeopardy claim is reviewable because it involves a fundamental constitutional right. State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985); State v. Cooke, 42 Conn. App. 790, 800, 682 A.2d 513 (1996).

       “The realities of the illegal drug trade help emphasize the difference between possession and sale of narcotics. ‘Distribution and possession are distinct criminal offenses, not only in terms of the length of time each lasts, but also in terms of what particular stage of drug trafficking each [represents State v. Davis, 68 N.J. 69, 82, 342 A.2d 841 (1975). See Albrecht, v. United States, 273 U.S. 1, 11, 47 S. Ct. 250, 71 L. Ed. 505 (1927). Nor does the fact that these two offenses are often committed in tandem prevent their being separately proscribed and punished. As the United States Supreme Court recognized in the context of federal narcotics laws, ‘[t]kte fact that an offender violates by a single transaction several regulatory controls devised by Congress as means for dealing with a social evil as deleterious as it is difficult to combat does not make the several different regulatory controls single and identic [for double jeopardy purposes].’ Gore v. United States, 357 U.S. 386, 389, 78 S. Ct. 1280, 2 L. Ed. 2d 1405 (1958).” State v. Devino, supra, 195 Conn. 75 n.5.


text:
    DONALD UTZ v. COMMISSIONER OF CORRECTION
    (AC 16889)
    O’Connell, C. J., and Foti and Landau, Js.
    Argued March 15
    officially released June 8, 1999

      David B. Rozwaski, special public defender, for the appellant (petitioner).

      James A. Ralls, assistant state’s attorney, with whom, on the brief, were Walter Flanagan, state’s attorney, and Catherine Brannelly, assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The plaintiff appeals from the habeas court’s judgment denying him relief on his application for a writ of habeas corpus. The habeas court denied the plaintiffs petition for certification to appeal to this court.

The petitioner claims that the habeas court improperly (1) denied his petition for certification to appeal, (2) failed to find that his trial counsel was ineffective and (3) failed to grant the petitioner the right to self-representation.

The habeas court noted the absence of expert testimony on the question of ineffectiveness of counsel at trial. Additionally, the habeas court found that there was no further probative evidence presented and that the balance of the evidence presented at the October 6, 1996 habeas hearing was, in fact, a rehashing of evidence already presented and considered by another court in a prior habeas proceeding.

The habeas court, after reviewing the transcripts and the testimony at the October 6,1996 hearing, found that the petitioner failed to establish that either his prior habeas counsel or his trial court counsel performed inadequately. The habeas court also found that there was no reasonable probability that, had the trial counsel presented any additional expert testimony, the outcome would have been different.

We conclude that the petitioner has failed to make a substantial showing that he was denied a state or federal constitutional right and has failed to sustain his burden of persuasion that the denial of certification to appeal is a clear abuse of discretion or that an injustice was done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994).

The appeal is dismissed.


text:
    MICHAEL BUCCIERI v. PACIFIC PLUMBING SUPPLY COMPANY ET AL.
    (AC 17990)
    Spear, Sullivan and Stoughton, Js.

      Argued February 18
    officially released June 8, 1999

      Christopher T. Goulden, for the appellant (plaintiff).

      Diane Duhamel, with whom, on the brief, was David W. Schoolcraft, for the appellees (named defendant et al.).
   Opinion

STOUGHTON, J.

The plaintiff, Michael Buccieri, appeals from a decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner (commissioner) granting the motion filed by the named defendant and the defendant Insurance Company of North America (CIGNA) to correct. On appeal, Buccieri claims that the board improperly affirmed the commissioner’s decision granting the motion to correct. We affirm the decision of the board.

Our review of the commissioner’s original finding and award of March 1, 1996, reveals that Buccieri sustained a compensable injury to his back on April 29, 1985. As a result of his back injury, Buccieri subsequently underwent two disc surgeries, which were paid for by the defendants. On March 24, 1991, Buccieri, who was then living in Maine, fell in the driveway of his home, injuring his head and left shoulder. He subsequently filed a workers’ compensation claim alleging that he had suffered leg and back spasms, pain and weakness since April 29, 1985, causing him to fall “maybe a half a dozen times.” He maintained that instead of seeking medical care locally, he preferred to consult with Daniel Nijensohn, the surgeon who had first operated on him in Bridgeport. After his March 24, 1991 fall, Buccieri did not seek medical attention until April 15,1991. On that date, he called Nijensohn’s office and was advised to obtain medical care locally. Buccieri then went to Frisbie Memorial Hospital in Rochester, New Hampshire, complaining of pain in his left arm and shoulder.

From April 16 through May 3,1991, Buccieri received physical therapy, primarily to his left shoulder. In a deposition on October 20,1995, Buccieri’s physical therapist, Caroline King, testified that Buccieri told her that he had fallen on ice. Magnetic resonance imaging (MRI) was performed on Buccieri on July 8, 1991, at St. Vincent’s Hospital in Bridgeport. The MRI revealed herniated cervical discs for which Buccieri underwent a subsequent operation. Buccieri then sought compensation benefits to cover the medical expenses that he incurred from his March 24, 1991 fall.

After a hearing, the commissioner determined that Buccieri’s March 24,1991 fall and resulting injuries were causally and medically related to his April 29, 1985 injury. The commissioner rejected the defendants’ contention that Buccieri’s injuries resulted from his fall on March 24, 1991. Accordingly, the commissioner awarded Buccieri benefits pursuant to the Workers’ Compensation Act.

Subsequently, on May 30,1996, the defendants Pacific Plumbing Supply Company and CIGNA filed a motion to correct pursuant to § 31-301-4 of the Regulations of Connecticut State Agencies, seeking to add certain facts as uncontroverted and to delete certain findings, conclusions and the award. Following a hearing on August 23, 1996, the commissioner granted the motion to correct in its entirety. By granting the motion to correct, the commissioner effectively reversed his original findings and award of March 1, 1996.

In his amended findings, the commissioner found that until July, 1991, Buccieri did not produce any medical documentation dated prior to the March 24, 1991 incident to support his contention that he had informed Nijensohn that leg pain and weakness had caused him to fall on approximately six occasions. The commissioner also found that Buccieri failed to keep an appointment with Nijensohn on May 28, 1991, and that Nijensohn released him to work on March 28, 1991. The commissioner further found that Buccieri was evaluated by his physical therapist, King, on April 10, 1991, and that Buccieri told King that he had fallen on ice, denied that the fall was caused by his legs giving out or by dizziness, and that the fall was not caused by his back problem. The commissioner also found that Buccieri claimed that he could not have fallen on snow or ice because it had not snowed or rained where he lived on the day of his fall, March 24, 1991, or in the preceding two weeks. The commissioner, however, found that at the time of Buccieri’s March 24, 1991 fall, the area was engulfed in a snowstorm, which had begun the previous day. The commissioner found that Buccieri’s injuries were not the result of his prior work-related injury in 1985, but rather resulted from the March 24, 1991 fall on ice in his driveway. The commissioner’s amended findings were that Buccieri’s injuries were, therefore, the result of an intervening accident, unrelated to his workers’ compensation claim. Buccieri then appealed to the board, which affirmed the commissioner’s decision. This appeal followed.

Buccieri now claims that the board improperly affirmed the commissioner’s decision granting the motion to correct. Specifically, he claims that the commissioner lacked the authority to grant the motion to correct, which effectively reversed the outcome of the commissioner’s prior decision. We disagree.

I

Buccieri advances two similar arguments in support of his claim. First, he claims that although the commissioner may correct his findings, his authority to do so is limited and may be exercised only if the record discloses that his finding includes facts found without evidence or if the record fails to include material facts that are admitted or undisputed. In making this claim, however, Buccieri incorrectly equates the power of the commissioner to correct his own findings to the power of a reviewing board or court to correct those same findings. While a reviewing authority may not substitute its findings for those of the trier of fact; State v. Kung, 52 Conn. App. 121, 123, 726 A.2d 130 (1999); the commissioner, as the trier of fact, has the inherent authority to reconsider a prior ruling if, after reviewing the evidence, he concludes that such findings are incorrect. See Steele v. Stonington, 225 Conn. 217, 219 n.4, 622 A.2d 551 (1993); Regs., Conn. State Agencies § 31-301-4 et seq. We conclude, therefore, that the commissioner properly exercised his authority to reconsider his prior findings and award.

II

Buccieri also claims that the commissioner’s original award was final and subject to appeal. Specifically, he claims that a motion to correct may be used only to correct the findings, not to change the award. If we uphold this argument, the result would be that the commissioner could correct his findings so as to remove any basis for the award, but could not change the award. Such a result would be absurd.

Indeed, our Supreme Court has stated that if a motion to correct “would have no impact on the final disposition,” it may properly be denied. Kluttz v. Howard, 228 Conn. 401, 405 n.5, 636 A.2d 816 (1994). In Simmons v. Bonhotel, 40 Conn. App. 278, 287, 670 A.2d 874 (1996), we determined that a review board “properly concluded that the finding [in that case] did not require correction because, even if it were corrected as the plaintiff requested, the commissioner’s ultimate conclusion would not have changed.”

“The appropriate standard applicable to the board when reviewing a decision of a commissioner is well established. [T]he review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is obligated] to hear the appeal on the record and not retry the facts. . . . [T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . [T]he conclusions drawn by [her] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . The commissioner’s conclusions are accorded the same deference as that given to similar conclusions of a trial judge or jury on the issue of proximate cause. . . . Kish v. Nursing & Home Care, Inc., 47 Conn. App. 620, 623, 706 A.2d 1372 [(1998), aff'd, 248 Conn. 379, 727 A.2d 1253 (1999)].” (Internal quotation marks omitted.) Kolomiets v. Syncor International Corp., 51 Conn. App. 523, 526-27, 723 A.2d 1161 (1999).

It is the role of this court “to determine whether the review [board’s] decision results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Aurora v. Miami Plumbing & Heating, Inc., 6 Conn. App. 45, 47, 502 A.2d 952 (1986).” (Internal quotation marks omitted.) Mulroy v. Becton Dickinson Co., 48 Conn. App. 774, 777, 712 A.2d 436 (1998).

Here, the board reviewed the commissioner’s original and amended findings and concluded that the record “amply” supported the commissioner’s conclusion that Buccieri’s March 24, 1991 fall was not caused by the April 29, 1985 compensable injury. Specifically, the board pointed to the findings that Buccieri (1) failed, until July, 1991, to produce any medical documentation dated prior to the March 24, 1991 incident to support his contention that he had informed Nijensohn that leg pain and weakness had caused him to fall on approximately six occasions, (2) did not keep an appointment with Nijensohn on May 28, 1991, that had been scheduled prior to the fall of March 24, 1991, (3) contended that he contacted Nijensohn on March 28, 1991, to report a deterioration in his condition while, the same day, Nijensohn determined that Buccieri had achieved maximum medical improvement and released him to work, (4) was evaluated by his physical therapist on April 10,1991 and that he had told her that he had fallen on ice, that the fall was not caused by his back problem and specifically denied that the fall was caused by his legs giving out or by dizziness and (5) claimed that he could not have fallen on snow or ice because it had not snowed or rained where he lived on the day of his March 24,1991 fall or for the previous two weeks while testimony of a meteorologist indicated that at the time of his fall on March 24, 1991, the area in question was engulfed in a snowstorm, which had begun the previous day.

Our review of the record reveals that these findings were reasonably drawn from the facts found by the commissioner. The board properly concluded, therefore, that the commissioner had the authority to correct his findings and that the record supported the commissioner’s conclusion that Buccieri’s March 24, 1991 fall was not caused by the 1985 compensable injury.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       The defendants are Buccieri’s employer, Pacific Plumbing Supply Company, and its insurers, CIGNA, Travelers Insurance Company and Chubb & Son, Inc. We note that both Chubb & Son, Inc., and Travelers Insurance Company adopted the brief filed on behalf of Pacific Plumbing Company and CIGNA and did not appear at oral argument.

       General Statutes § 31-275 et seq.

       Section 31-301-4 of the Regulations of Connecticut State Agencies provides: “If the appellant desires to have the finding of the commissioner corrected he must, within two weeks after such finding has been filed, unless the time is extended for cause by the commissioner, file with the commissioner his motion for the correction of the finding and with it such portions of the evidence as he deems relevant and material to the corrections asked for, certified by the stenographer who took it, but if the appellant claims that substantially all the evidence is relevant and material to the corrections sought, he may file all of it so certified, indicating in his motion so far as possible the portion applicable to each correction sought. The commissioner shall forthwith, upon the filing of the motion and of the transcript of the evidence, give notice to the adverse party or parties.”

       Buccieri has made no claim here, however, that the commissioner’s amended findings were disputed, immaterial or unsupported by evidence.