author: LANDAU, J.

text:
    ALISTAIR GEMMELL ET AL. v. DENNIS LEE ET AL.
    (15222)
    Lavery, Landau and SpaUone, Js.
    Argued June 3
    officially released August 20, 1996

      David A. Leff with whom, on the brief, was William F. Dow III, for the appellants (defendants).

      Michele R. Celentano, with whom, on the brief, was Morton J. Dimenstein, for the appellees (plaintiffs).
   LANDAU, J.

The defendants appeal from the judgment, rendered after a trial to the court, quieting and settling title as to the existence of a right-of-way over a parcel of real property. The defendants claim that the trial court improperly (1) concluded that the plaintiffs owned an easement over Glen Road, (2) enjoined the defendants from encroaching on the disputed portions of that road, (3) concluded that the defendants had not acquired title to the disputed portions of the road by adverse possession, (4) concluded that the plaintiffs were not barred by the statute of limitations from asserting their claims, and (5) concluded that the defendants had not acquired an easement by prescription over the disputed portions of the road. The dispositive issue on appeal is whether the trial court had subject matter jurisdiction. Because we conclude that it lacked such jurisdiction, we do not reach the defendants’ claims.

The plaintiffs are owners of real property at 846 Dog-bum Road in Orange. Their deed describes their property as bounding a right-of-way and makes reference to a map filed in the land records of the town of Orange. The map, dated 1929, shows a parcel of land owned by Mary Gracy and indicates a private road or right-of-way. Gracy conveyed to third parties parcels of land that border on the private road. She conveyed ownership of most of the property that borders the private road to the predecessors in interest of the defendants Robert Lehet, Roberta Lehet, Stephen Hulbert and Barbara Hulbert, but retained ownership of the remaining property. Rights of passage over the right-of-way were given to the defendants Thomas O’Donnell, Susan O’Donnell, Dennis Lee, Valerie Lee, Roy Somers and Joan Somers.

In 1992, the plaintiffs brought an action against the defendants to quiet title concerning their easement over a proposed road or private right-of-way known as Glen Road. Their complaint asserts that the defendants were interfering with their right to make use of the road and that the defendants were encroaching on the plaintiffs’ property where the road ended in a parking area. After a trial to the court, the court rendered judgment for the plaintiffs and enjoined the defendants from interfering with the plaintiffs’ use of Glen Road. The court also ordered the defendants to cease any encroachment on the plaintiffs’ property. This appeal followed.

Although Gracy’s absence as a defendant was not raised in the trial court, we are not precluded from addressing the issue of whether her absence may implicate the subject matter jurisdiction of the trial court. See Cardillo v. Cardillo, 27 Conn. App. 208, 213, 605 A.2d 576 (1992) (counts of complaint seeking conveyanee of real estate should have been dismissed by trial court because all parties in interest were not parties to action). Moreover, the question of subject matter jurisdiction may be raised at any time. Cohen v. Cohen, 41 Conn. App. 163, 165, 674 A.2d 869 (1996).

When the plaintiffs filed their complaint seeking judgment settling the title to the land in dispute, they invoked the remedy provided by General Statutes § 47-31. The statute required the plaintiffs to “name the person or persons who may claim such adverse estate or interest.” Count one, paragraphs four and five, of the amended complaint, filed June 6,1994, allege that “Mary E. Gracy was the predecessor in interest to the plaintiffs” and that “Mary E. Gracy conveyed the remainder of the land shown on [the] map reserving a right-of-way to herself, heirs and assigns over Glen Road.”

“It is axiomatic that an action to determine title to real estate must include all parties in interest. See General Statutes 47-31 (b); Swenson v. Dittner, 183 Conn. 289, 292, 439 A.2d 334 (1981).” Cardillo v. Cardillo, supra, 27 Conn. App. 212-13. Here, the plaintiffs’ claim for relief called for a full determination of the rights of the parties in the land and requested the court to enter a decree that the plaintiffs had a right-of-way over the fee owned, in part, by Gracy. Because Gracy was not named as a party to the action, it was not possible for the court fully to determine the plaintiffs’ rights to the disputed right-of-way. As a person whose interests in real estate would be affected by the relief sought, Mary Gracy was an indispensable party. See Goodman v. Bank of Boston Connecticut, 27 Conn. App. 333, 341, 606 A.2d 994 (1992). We conclude, therefore, that the trial court should not have endeavored to determine the rights of the parties and settle the disputes regarding the title to the land in the absence of Gracy.

The effect of declaring the plaintiffs to have a right-of-way over Gracy’s real estate would be to deprive Gracy of her title in an action in which she was not a party. If we were to permit the judgment to stand, we would be creating a situation in which a title search would reveal that the plaintiffs have a right-of-way as to their neighbors, who also have a right-of-way, but not as to Gracy—the owner of the fee simple in the disputed property—because that issue was not decided. We will not condone such a circumstance.

At oral argument, the defendants asserted that the appeal should be dismissed. We disagree. Rather, we vacate the judgment of the trial court and remand this case with direction to include all record owners of the subject property as parties and to conduct further proceedings in accordance with this opinion. See Mannweiler v. LaFlamme, 232 Conn. 27, 31, 653 A.2d 168 (1995).

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The defendants are Dennis Lee, Valerie Lee, Thomas O’Donnell, Susan O’Donnell, Roy Somers, Joan Somers, Robert Lehet, Roberta H. Lehet, Stephen Hulbert and Barbara Hulbert.

       The plaintiffs are Alistair Gemmell and Dorothy Gemmell.

       On February 22, 1996, we denied the defendants’ motion to dismiss this appeal. The defendants sought an order setting aside the trial court’s judgment on the basis that the trial court lacked subject matter jurisdiction because Mary Gracy was not named as a defendant. Because this court has jurisdiction to determine whether the trial court had subject matter jurisdiction to hear the case, we denied the defendants’ motion to dismiss. Drake v. Planning & Zoning Commission, 14 Conn. App. 583, 541 A.2d 1251 (1988).

         On May 16, 1996, all parties were notified to be prepared to address the jurisdictional issue at oral argument.

       While the Mannweiler case involves a declaratory judgment pursuant to Practice Book § 390 (d), and this appeal involves the quieting and settling of title in accordance with General Statutes § 47-31 (b), in this instance the distinction is without a difference. Although actions for declaratory judgments most often involve contract disputes, declaratory judgments also involve property rights. See, e.g., Clinton v. Rogers Lake West Shores Assn., Inc., 40 Conn. App. 454, 671 A.2d 855 (1996).


source: Caselaw Access Project

author: FOTI, J. LAVERY, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. SCOTT ELIJAH
    (14733)
    Foti, Lavery and Spear, Js.
    Argued June 11
    officially released August 27, 1996

      John R. Williams, special public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John Waddock, assistant state’s attorney, for the appellee (state).
   FOTI, J.

The defendant appeals from the judgment of conviction rendered, after a jury trial, of possession of cocaine with intent to sell by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b), possession of cocaine in violation of General Statutes § 21a-279 (a), and conspiracy to sell cocaine in violation of General Statutes §§ 53a-48 (a) and 21a-278 (b). The defendant claims that the trial court improperly instructed the jury. lie also claims that the evidence was insufficient to convict him of any of the charges. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On June 29, 1991, Detective Hilden Wright of the New Haven police department began surveillance of a multifamily house located at 22lV2 Winthrop Avenue in New Haven. From his vantage point, he had a clear view of the entrance. At some time in the early afternoon, he observed a blue Mercury Lynx with New York license plates parked in front of the building. Thereafter, Wright saw the defendant and another black male, Jefferson Jackson, enter the automobile and drive away. Approximately thirty minutes later the car- returned and parked in the same spot in front of the building. The defendant and Jackson exited the car and entered the building. Both were dressed in full-length pants and shirts. One of them was carrying a brown paper bag. After additional surveilance of approximately twenty minutes, Wright left to return to police headquarters. Approximately twenty minutes after leaving, Wright returned with other law enforcement officers of the narcotics unit to execute a search and seizure warrant for apartment five of that building.

The officers knocked on the door to apartment five and one of them yelled, “Police with a search warrant.” They could hear the sounds of running footsteps and concluded that evidence was being destroyed. They battered down the door, which had been fortified inside by two-by-fours placed across it. The door opened into the living room, to the left of which was the kitchen, open to view; past the kitchen was a bathroom on the left, a bedroom on the right, and a second bedroom at the end of a short hallway.

As the police entered, they observed both the defendant and Jackson bare-chested and wearing only boxer shorts. The defendant was stopped going out the back door, which had a deadbolt. Jackson, who had a surgical mask around his neck, was seized as he ran from the kitchen to the back of the apartment. The defendant supplied the police with the keys to the blue Mercury parked outside, and said that he lived elsewhere, giving them a false New Haven address.

On a table in the kitchen, the police seized high velocity ammunition and .22 caliber ammunition, a box of glassine packets, a bottle of inositol, adhesive tape, a box of utility blades, cutting blades, a razor blade with cocaine residue, a plastic bag with cocaine residue, a plastic gram scale with cocaine residue, a glass bowl with cocaine residue, a glass plate with cocaine residue, a large plastic bag containing a white, rock-like material that was pure cocaine, forty-five plastic bags containing cocaine, and fifty glassine bags containing cocaine. In a bathroom drawer police discovered a glassine package containing powdery material. On a table in the living room, a black address book was found with names and addresses, including the name “Scott,” and two sheets of paper covered with numbers.

The glassine packets found on the kitchen table are commonly used to package and sell narcotics, the inositol is mixed with raw narcotics to add bulk for purposes of sale, the razor blades are used to handle the inositol and narcotics, the adhesive tape is used to secure the packaging of narcotics and the surgical mask worn by Jackson is used to avoid inhaling the dust or fumes of the narcotics. The numbers on the two sheets of paper are consistent with narcotics transactions, i.e., quantity of narcotics sold and moneys received. Each of the fifty glassine packets had a street value of $20. It was apparent that narcotics were being cut and bagged when the police entered.

I

The defendant claims that the trial court improperly instructed the jury on the element of possession for purposes of proof on the first two counts. He posits that the instruction given could reasonably have led the jury to conclude that mere physical proximity, coupled with knowledge of the presence of the drugs, was sufficient to make the defendant a possessor.

Our standard of review concerning claims of instructional error is well settled. “[J]ury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict . . . and not critically dissected in a microscopic search for possible error. ...” (Citations omitted; internal quotation marks omitted.) Hall v. Burns, 213 Conn. 446, 475, 569 A.2d 10 (1990). The instruction must be adapted to the issues and may not mislead the jury but should reasonably guide it in reaching a verdict. Lemonious v. Burns, 27 Conn. App. 734, 740, 609 A.2d 254, cert. denied, 223 Conn. 915, 614 A.2d 823 (1992). We must review the charge as a whole to determine whether it was correct in law and sufficiently guided the jury on the issues presented at trial. State v. Coleman, 35 Conn. App. 279, 292, 646 A.2d 213 (1994).

Our review of the charge in its entirety leads us to conclude that the trial court’s instruction was an adequate statement of the law on the element of possession. The court instructed on the element of possession for purposes of the crimes of possession of cocaine and possession of cocaine with intent to sell as follows: “The first element is that the defendant had possession of a substance. This element of possession means that the defendant knew of its presence and that the defendant actually had the substance on his person, although that is only one form of possession. The word ‘possession’ as used in this statute has no technical meaning. As I have said, it does not mean that one must have the illegal substance upon his person. Rather, a person who, although not in actual possession, knowingly has the power and the intention at a given time to exercise dominion or control over a thing is deemed to be in constructive possession of that item. It means having something under one’s control or dominion. As long as the substance is or was in a place where the defendant could, if he wishes, go and get it, it is in his possession and that possession is illegal if the defendant knew of the unlawful character of the substance and knew of its presence.

“As you ordinarily speak of things, we possess a thing which we have under our immediate control or dominion. You possess the articles on your person because they obviously are within your immediate control or dominion. I possess a book on the desk in front of me even though it actually belongs to the state of Connecticut simply because it’s before me and subject to my control and dominion. I possess a briefcase which happens to be in the chambers because it is under my control. Moreover, possession may be jointly held as where two or more persons have dominion and control over the articles involved and where such persons are acting at the time pursuant to a common purpose. In other words, possession may be personal to more than one individual at any given time.”

The defendant’s counsel, in noting his exception to this portion of the charge, stated: “Your Honor indicated that it was necessary that the defendant exercise dominion and control and that he had both the ability and the intent to exercise control, but then Your Honor gave the jury as a practical illustration, that is, if the substance was in a place where he . . . ‘could go and get it’ . . . and that’s obviously not the definition of possession, or possession and control which is provided by the law .... The mere ability to go and get it is not enough. And that’s an erroneous instruction.”

The trial court properly instructed as to the element of possession that the defendant was required not only to know of the presence of narcotics, but also that he intended to and did exercise dominion and control over the drugs. Identical or very similar language as used initially by the trial court dealing with the element of possession, actual or constructive, of a narcotic substance has been approved by our Supreme Court. See State v. Williams, 169 Conn. 322, 335 n.2, 363 A.2d 72 (1975).

The defendant specifically challenges the court’s instruction that the defendant would be in possession of the narcotic substance if it was located in a place where “the defendant could, if he wishes, go and get it,” being aware of its presence and unlawful character. He argues that this could improperly allow the jury to convict him solely on his knowingly being in the physical proximity of the drugs. We agree that if the narcotics are found in a place where the defendant does not have exclusive possession, the mere presence of the defendant near the contraband, without more, is insufficient to support an inference of possession. State v. Brunori, 22 Conn. App. 431, 436, 578 A.2d 139, cert, denied, 216 Conn. 814,580 A.2d 61 (1990). We also agree that that portion of the instruction dealing with the ability to “go and get” the contraband, if taken alone, would be insufficient to define possession. In viewing the charge in its entirety, however, the concept and the necessity of the ability to control the disposition of the narcotics, by the exercise of dominion and control as connected with constructive possession, was clearly conveyed to the jury. The court specifically equated possession with dominion or control by stating: “We possess a thing which is under our immediate control or dominion,” and “[y]ou possess the articles on your person because they obviously are within your immediate control.” We therefore conclude that it is not reasonably possible that the jury was misled into equating possession with mere physical proximity.

The defendant also argues that the trial court’s instructions did not sufficiently refer to the mental element necessary for constructive possession. While the trial court’s explanation and illustrations of constructive possession did not set forth such a necessary mental element, the instruction sufficiently charged that such involves “knowingly” having the power and intention at a given time to exercise dominion or control. The trial court also told the jury that such a mental element requires that joint possessors must act “pursuant to a common purpose.”

Our review of the charge as a whole convinces us that the jury was given a clear understanding of the elements of the crimes charged and the proper guidance to determine if those elements were present. State v. Avila, 166 Conn. 569, 574, 353 A.2d 776 (1974). The jury was not misled by the charge, which was correct in law and sufficient to guide the jury on the issues presented.

II

The defendant claims that there was insufficient evidence to sustain his convictions. He maintains that the state failed to prove either an agreement or an overt act in respect to the conspiracy charge. He also argues that there was insufficient evidence of constructive possession of cocaine because the state merely proved he was knowingly in a room where cocaine was present.

We utilize a two part analysis when reviewing a challenge to the sufficiency of evidence. “First, we construe the evidence in the light most favorable to sustaining the verdict .... Second, we determine whether from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Rivera, 32 Conn. App. 193, 200-201, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993). “ ‘In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.’ ” State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993). The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Boykin, 27 Conn. App. 558, 563-64, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992).

“ ‘To prove the crime of conspiracy, in violation of § 53a-48, the state must establish beyond a reasonable doubt that an agreement existed between two or more persons to engage in conduct constituting a crime and that subsequent to the agreement one of the conspirators performed an overt act in furtherance of the conspiracy. . . . The state is also obligated to prove that the accused intended that conduct constituting a crime be performed.’ ” (Citations omitted.) State v. Jones, 35 Conn. App. 839, 846-47, 647 A.2d 43 (1994).

“The existence of a formal agreement between the parties, however, need not be proved; it is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act. State v. Lewis, 220 Conn. 602, 607, 600 A.2d 1330 (1991); State v. Vessichio, 197 Conn. 644, 656, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986); State v. Lynch, 21 Conn. App. 386, 392, 574 A.2d 230, cert, denied, 216 Conn. 806, 580 A.2d 63 (1990). Because of the secret nature of conspiracies, a conviction is usually based on circumstantial evidence. State v. Vessichio, supra. Consequently, it is not necessary to establish that the defendant and his coconspirators signed papers, shook hands, or uttered the words ‘we have an agreement.’ State v. Stellato, [10 Conn. App. 447, 453, 523 A.2d 1345 (1987)]. Indeed, a conspiracy can be inferred from the conduct of the accused. State v. Lynch, supra, 400.” State v. Boykin, supra, 27 Conn. App. 564-65.

Further, a jury is free to infer from the actions of the defendant and his coconspirator, and from the circumstances presented as evidence in this case, that the activity involving the cocaine was planned in advance. See State v. Hanks, 39 Conn. App. 333, 343, 665 A.2d 102, cert. denied, 235 Conn. 926, 666 A.2d 1187 (1995). The jury could, from the evidence presented, and the reasonable inferences drawn from that evidence, conclude that the defendant wilfully participated in the narcotics activities of the conspiracy with knowledge of its illegal ends. From the evidence presented at trial, taken in the light most favorable to sustaining the verdict, we cannot say as a matter of law that the jury could not reasonably have concluded as it did. The jury was free to infer an agreement from the concerted actions of the defendant and Jackson in coming and going, and from the circumstances in which they were found.

A jury can infer from a defendant’s actions that activities were planned in advance to facilitate the crime. State v. Hanks, 39 Conn. 333, 343, 665 A.2d 102 (1995). Participation in the act itself may be sufficient to allow the jury to infer the conspiracy from that conduct. Id.

Jurors are expected to employ common sense and to draw on everyday experiences during deliberations. From the evidence of the circumstances as they existed and the interaction between Jackson and the defendant, it is not unreasonable for the jury to have found that the two did not decide to cut, package and distribute cocaine on the spur of the moment, that one did not spontaneously say to the other, “While you are here, take off your clothes and help me cut and package this cocaine.” It is more probable that the jury reasonably found that the two had previously agreed or arranged to be there to do the acts. The jury was free to conclude that the two were in their underwear, not because they were warm, but because it is much easier to shower off evidence of drugs from one’s body than to remove that residue from outer clothing. We cannot find that the jury’s conclusion that an agreement existed was based on insufficient evdence or was unreasonable based on the evidence presented. We conclude that the evidence was sufficient to allow the jury to find proven, beyond a reasonable doubt, that an agreement existed between the defendant and Jackson to engage in the crime.

An overt act is an essential ingredient of the crime of conspiracy; it may be committed by either coconspirator. State v. Walton, 227 Conn. 32, 48, 630 A.2d 990 (1993). The offense of possession of narcotics with intent to sell was a principal object of the conspiracy charged, and that crime was the overt act. “Possession of the drugs is sufficient for proof of the overt act in a conspiracy. [Id.]” State v. Goodrum, 39 Conn. App. 526, 540, 665 A.2d 159, cert. denied, 235 Conn. 929, 667 A.2d 554 (1995).

We conclude that there was sufficient evidence for the juiy to have found the necessary agreement and overt act in furtherance of the conspiracy.

The defendant also claims that the evidence was insufficient to convict him because the state did not prove that he “possessed” the cocaine. The state’s burden is to prove beyond a reasonable doubt that the defendant knew the character of the contraband, knew of its presence and exercised dominion and control over it. State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985). Where, as here, the cocaine was not found on the defendant’s person, the state must proceed on the theory of constructive possession, that is, possession without direct physical contact. See, e.g., State v. Brunori, supra, 22 Conn. App. 431; State v. Santiago, 17 Conn. App. 273, 552 A.2d 438 (1989); State v. Melillo, 17 Conn. App. 114, 550 A.2d 319 (1988). As we discussed previously, the state presented evidence sufficient to establish possession. The state did not merely present evidence of proximity and knowledge, but also evidence from which the jury could draw reasonable inferences to find the required dominion or control. We conclude that the state sustained its burden to offer sufficient evidence for a jury reasonably to have found that the defendant possessed the cocaine.

The judgment is affirmed.

In this opinion SPEAR, J., concurred.

LAVERY, J.,

dissenting. I agree with the conclusions reached by the majority concerning the trial court’s instruction to the jury and the defendant’s convictions of violating §§ 21a-278 (b) and 21a-279 (a). I respectfully disagree with the majority opinion as to the conviction for conspiracy to sell cocaine. It is well settled in Connecticut that the crime of conspiracy requires the presence of an agreement and a subsequent overt act in furtherance of the conspiracy. General Statutes § 53a-48 (a). I believe that there is insufficient evidence from which a jury could infer a previous agreement between the defendant and Jackson to support a conviction for conspiracy to sell cocaine.

The majority opinion relies on State v. Vessichio, 197 Conn. 644, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986), for the proposition that a conspiracy conviction is usually based on circumstantial evidence because of the secretive nature of the crime. The majority also contends that a conspiracy can be inferred from the conduct of the accused. See State v. Lynch, 21 Conn. App. 386, 392, 574 A.2d 230, cert. denied, 216 Conn. 806, 580 A.2d 63 (1990). In this case, however, there is insufficient circumstantial evidence to infer that there was a prior agreement between the defendant and Jackson.

The only evidence presented to the jury was the police observing the defendant and another male leaving the premises and arriving later carrying a brown paper bag into the building. Subsequent to this observation, the police entered the apartment and found illegal drugs and assorted paraphernalia as well as the defendant and Jackson in their underwear. These facts are not sufficient to uphold a conviction for conspiracy to sell narcotics.

This court has reversed convictions for conspiracy to sell narcotics on facts similar to those in this case. See State v. Goodrum, 39 Conn. App. 526, 540-41, 665 A.2d 159, cert. denied, 235 Conn. 929, 667 A.2d 554 (1995). In Goodrum, the police observed a defendant entering his brother’s premises carrying a brown paper bag. The police also found drugs and paraphernalia in the brother’s apartment. We concluded in Goodrum that “[m]ere presence at the scene of a crime, even with knowledge of the crime, is insufficient to establish guilt of a conspiracy.” Id., 540. In this case the police found the defendant and Jackson in their underwear amidst illegal drugs, yet, as in Goodrum, there is no probative evidence from which a prior agreement between the defendant and another person could be inferred.

I would reverse the judgment of the trial court with direction to vacate the conviction for conspiracy to sell cocaine. I would affirm the judgment of the trial court on all other grounds.

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

       General Statutes § 21a-279 (a) provides: “Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years or be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for any subsequent offense, may be imprisoned not more than twenty-five years or be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       The trial court’s instruction spoke both of “dominion and control,” as well as the standard phrase “dominion or control.” See State v. Williams, supra, 169 Conn. 322; see also State v. Hill, 201 Conn. 505, 518 A.2d 388 (1986).

       Conviction of both conspiracy to sell and possession with intent to sell does not constitute double jeopardy. State v. Walton, supra, 227 Conn. 40-54.


author: FOTI, J.

text:
    WATERBURY TEACHERS ASSOCIATION v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (14936) (14937) (14938)
    Foti, Heiman and Spear, Js.
    Argued May 29
    officially released August 27, 1996

      Pamela D. Siemon, with whom, on the brief, were John J. Cassidy, Jr., and Thomas G. Parisot, for the appellants (defendant Marc S. Ryan et al.).

      Catherine Wassel-Nasto, commission counsel, with whom were Mi tchell W. Pearlman, general counsel, and Justine C. Rakich-Kelly, commission counsel, for the appellant (named defendant).

      William, J. Dolan, for the appellee (plaintiff).
   FOTI, J.

The defendants, Marc S. Ryan, James B. Craig, the Waterbury Republican-American and the Freedom of Information Commission (commission), appeal from the judgment of the trial court sustaining the appeals of the plaintiff Waterbury Teachers Association (union) from decisions of the commission. On appeal, the defendants claim that the trial court (1) failed to accord proper deference to the decisions of the commission by substituting its own judgment in interpreting the Freedom of Information Act (FOIA), and (2) improperly concluded that the grievance hearings fell within the exclusionary provisions of General Statutes § l-18a (b). We affirm the judgments of the trial court.

The record reveals the following relevant facts. The union is designated as the exclusive representative of the teachers of the Waterbury board of education (board) within the meaning of General Statutes § 10-153a.* * Pursuant to the collective bargaining agreement between the board and the union, the union may file grievances on behalf of its teacher members against the board for any alleged violations of the agreement. At the time the hearings at issue were conducted, the defendants Ryan and Craig were members of the staff of the defendant newspaper, the Waterbury Republican-American.

The first appeal to the trial court arose from the following facts. On April 29 and May 6, 1992, the board conducted hearings on grievances brought by the union. On May 26,1992, Ryan, Craig and the Waterbury Republican-American filed a complaint with the commission, alleging that the grievance hearings were held without adequate notice and that members of the newspaper’s staff were wrongfully denied access to the meetings in violation of the FOIA.

On April 28, 1993, the commission ruled that the hearings conducted by the board’s committee on grievances were subject to the open meeting provisions of the FOIA, and that, by not providing notice and not permitting the newspaper’s staff members to attend the hearings, the union and the board had violated the FOIA. The union appealed to the trial court from the commission’s decision pursuant to §§ l-21i (b)* * and 4-183 (a).

The second appeal arose from grievance hearings held on December 15, 1993, while the union’s appeal was pending in the trial court. The board and the union again did not provide notice of the meetings and denied Ryan, Craig and the Waterbury Republican-American the opportunity to attend the meetings. On January 28, 1994, Ryan, Craig and the Waterbury Republican-American filed a second complaint with the commission. The commission, on the basis of its decision on the earlier complaint, ruled that the board and the union had violated the FOIA. The union appealed that decision to the trial court.

On March 24,1995, the trial court ordered the appeals consolidated. On June 8, 1995, the trial court found in favor of the union. The trial court held that the proceedings were not “meetings” as the term is used in the FOIA, but instead, were “negotiations with respect to a collective bargaining agreement,” a recognized exception, pursuant to § l-18a (b), to the mandate of open meetings set forth in § 1-21. On the basis of that finding, the trial court determined that the grievance hearings were exempt from the public access provisions of the FOIA.

The dispositive issues on appeal are whether the trial court exercised proper deference with respect to the commission’s decision, and whether the trial court properly concluded that grievance proceedings between the board and the union were statutorily exempt from the open meeting requirement of the FOIA pursuant to § l-18a (b).

Before addressing the substantive issues involved, we first set forth our standard of review. “Judicial review of [an administrative agency’s] action is governed by the Uniform Administrative Procedure Act [General Statutes §§ 4-166 through 4-189], and the scope of that review is very restricted. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the [administrative agency]. . . . Even as to questions of law, [t]he court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. . . . Although the interpretation of statutes is ultimately a question of law ... it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement. . . .” (Citations omitted; internal quotation marks omitted.) Hartford v. Freedom of Information Commission, 41 Conn. App. 67, 72-73, 674 A.2d 462 (1996).

The defendants first claim that the trial court failed to accord the proper deference to the commission’s interpretation of provisions of the FOIA. The trial court’s standard of review is governed by the same principles set out previously in discussing this court’s standard of review. Pursuant to our standard of review, we examine whether the conclusions of law reached by the trial court resulted from a correct application of the law to the facts of this case.

Section § l-18a (b) was recently interpreted by our Supreme Court in Glastonbury Education Assn. v. Freedom of Information Commission, 234 Conn. 704, 663 A.2d 349 (1995). At the time the trial court ruled on the present case, however, neither the commission nor the trial court had the benefit of that analysis. Nevertheless, earlier judicial decisions have construed § 1-18a (b). See Glastonbury Education Assn. v. Freedom of Information Commission, 35 Conn. App. 111, 119, 643 A.2d 1320 (1994), aff'd, 234 Conn. 704, 663 A.2d 349 (1995) (arbitration hearings provided for in collective bargaining agreement as means to resolve disputes not meetings within § l-18a [b] because they are continued negotiations); Bloomfield Education Assn. v. Frahm, 35 Conn. App. 384, 646 A.2d 247, cert. denied, 231 Conn. 926, 648 A.2d 161 (1994) (mere filing of grievance does not reveal any strategy or negotiations and therefore not exempt from FOIA disclosure requirements); Connecticut Employees Union Independent, Inc. v. Board of Labor Relations, 43 Conn. Sup. 1, 635 A.2d 891 (1993) (grievance settlement agreement constitutes supplemental understanding of collective bargaining agreement); Fairfield v. IAFF, Local 1426, Superior Court, judicial district of Fairfield, Docket No. CV 93-0304287 (July 11,1994) (grievance hearing part of ongoing collective bargaining agreement).

Here, the trial court ruled that the commission interpreted the statute in a manner inconsistent with judicial interpretations. We must determine if, in light of our deference to the commission in interpreting the FOIA, the trial court properly concluded that the grievance hearings are excluded from the open meetings requirement of the FOIA.

Section 1-21 requires that all public agency meetings, with the exception of executive sessions, be open to the public, and that such meetings be properly noticed. Section l-18a (b) excludes strategy and negotiations, with respect to collective bargaining, from the definition of meetings that are subject to these requirements. Resolution of this appeal, therefore, requires a determination of whether a hearing before the grievance committee of the Waterbury board of education fits within the “negotiations” exception to the open meetings policy of the FOIA.

“Inquiry into the scope of the statutory exclusion for collective bargaining contained in § l-18a (b) must commence with the recognition of the legislature’s general commitment to open governmental proceedings. The overarching legislative policy of the FOIA is one that favors the open conduct of government and free public access to government records. . . . The sponsors of the FOIA understood the legislation to express the people’s sovereignty over the agencies which serve them . . . and this court consistently has interpreted that expression to require diligent protection of the public’s right of access to agency proceedings. Our construction of the [FOIA] must be guided by the policy favoring disclosure and exceptions to disclosure must be narrowly construed. . . .” (Citations omitted; internal quotation marks omitted.) Glastonbury Education Assn. v. Freedom of Information Commission, supra, 234 Conn. 711-12. Despite this open meeting policy, however, our Supreme Court recognizes that § l-18a (b) provides an exception for “ ‘strategy or negotiations’ sessions that relate to collective bargaining.” Id., 713.

In Glastonbury Education Assn., our Supreme Court determined that the compulsory arbitration provisions of the Teachers Negotiation Act (TNA), General Statutes § 10-153a et seq., resembled negotiations and were therefore excluded from the meeting requirements of the FOIA. Id., 716-17. The TNA establishes a three step collective bargaining process to ensure the existence of a teacher contract by the beginning of the town’s fiscal year. Id., 714. The court determined that “[throughout the process, the threat of the arbitration panel’s decision-making power provides a strong incentive for the parties to resolve outstanding issues.” Id., 716.

The defendants attempt to distinguish the present case on the ground that, unlike the situation in Glastonbury Education Assn., in which the disputes arose in entering into a collective bargaining agreement, the collective bargaining agreement between the union and the town was already in effect. Moreover, the defendants maintain that the grievance proceedings at issue in the present case constituted a quasi-judicial process, rather than the mediated arbitration process present in Glastonbury Education Assn. The defendants cite the portion of § 10-153a (c) that distinguishes collective bargaining, contract administration and grievance adjustment, contending that it evidences the legislative recognition of a difference between pure collective bargaining, or contract negotiation, and the grievance process. This distinction is not supported by the judicial interpretations of collective bargaining agreements.

In Board of Education v. State Board of Labor Relations, 217 Conn. 110, 584 A.2d 1172 (1991), our Supreme Court concluded that the duty to negotiate in good faith under the TNA “is an ongoing duty that continues after initial contract negotiations are over . . . [including] the duty to negotiate any question arising under an existing contract.” (Citations omitted; internal quotation marks omitted.) Id., 120-21. “If the contract requires arbitration of unresolved grievances, the duty to bargain in good faith includes the duty to participate in good faith in the grievance arbitration process, for dispute resolution under the grievance-arbitration process is as much a part of collective bargaining as the act of negotiating the contract.” (Internal quotation marks omitted.) Id., 121.

“A grievance procedure involves the interpretation and enforcement of an existing group teacher contract. Insofar as the board has the power to make such a contract it follows that it has the power to agree on a method and forum for the purpose of settling disputes arising under the terms of the contract. It is an amicable and efficient means of resolving any differences within a contract previously acceptable to and executed by the parties.” West Hartford Education Assn., Inc. v. DeCourcy, 162 Coma. 566, 588, 295 A.2d 526 (1972).

In this case, the dispute resolution process mandated by the grievance procedure is as much a part of collective bargaining as the act of negotiating the agreement. It provides a forum where the agreement will be interpreted and enforced. To draw a distinction between entering into the agreement and interpreting its meaning would sever an ongoing, continuous process that our Supreme Court views as a cohesive whole, incapable of such strict division. See Board of Education v. State Board of Labor Relations, supra, 217 Conn. 120-21. We conclude, therefore, that the phrase “with respect to collective bargaining” in § l-18a (b) applies not only to the discussions in entering into an agreement, but also to the discussions in resolving disputes that may arise under the agreement.

Having concluded that the statutory exclusion to the open meeting policy of the FOIA can apply to discussions occurring after the parties have entered into a collective bargaining agreement, we must now determine whether the grievance hearings constituted negotiations. In resolving this issue, we look to the specific provisions of the collective bargaining agreement between the union and the board. A grievance is defined in the collective bargaining agreement as “[a] claim by either an employee or a group of employees, the [union], or the board that there has been an alleged violation, misinterpretation, or misapplication of a specific provision or group of provisions of this Agreement, or alleged discrimination or a condition affecting the employee’s health and safety.” The collective bargaining agreement provides a multistep grievance procedure, including both informal and formal sessions, through which to resolve disputes. The grievance hearings at issue in this case were at stage 2, level 3, which consists of hearings before the board.

The defendants contend that the presentation of testimony and other evidence creates a quasi-judicial setting and cannot be construed as negotiations. They cite our Supreme Court in Glastonbury Education Assn. v. Freedom of Information Commission, supra, 234 Conn. 718, which “postpone[d] to another day questions concerning the validity of a more narrowly tailored [commission] order that requires open hearings only with respect to evidentiary presentations and permits [closed] sessions for discussion and argument about the contents of the parties’ [settlement] offers.”

“[W]e construe a contract as a whole and all relevant provisions are considered when determining the intent of the parties.” White v. Kampner, 229 Conn. 465, 473-74, 641 A.2d 1381 (1994). In construing the collective bargaining agreement at issue in this case, we note that the plain language of the agreement establishes mandatory grievance procedures to resolve any disputes without judicial intervention. Although a grievance hearing may have a greater sense of formality than the informal discussions of earlier steps in the grievance procedure, it does not rise to the level of formality that is present in the later step of binding arbitration. On the basis of our Supreme Court’s determination that binding arbitration falls within the exclusionary provision of § l-18a (b), it is difficult, if not impossible, to conclude that a grievance hearing does not also consist of negotiations and, thus, fit within the exclusion of § l-18a (b).

The purpose of the grievance procedure, to resolve disputes arising out of the collective bargaining agreement, is further proof that the grievance hearings consist of negotiations and exist to promote settlement between the parties. The presentation of witness testimony and the introduction of evidence merely provides a procedure by which the factual background of the dispute between the union and the board may be introduced and cannot be said to constitute a quasi-judicial setting as the defendants contend. The goal throughout each level of the grievance procedure is to reach a settlement between the parties. See Hunt v. Prior, 236 Conn. 421, 431-32, 673 A.2d 514 (1996).

The uncontradicted evidence before the commission demonstrates that the grievance proceedings present a forum in which to resolve disputes through settlement. The union president, Jack Cronan, testified before the commission that discussions would take place and evidence would, be presented at these grievance hearings concerning which articles of the collective bargaining agreement allegedly had been violated. Cronan testified that a grievance hearing includes negotiation in an effort to find a remedy.

We conclude, therefore, that the trial court accorded proper deference to the commission’s interpretation of provisions of the FOIA and that it properly sustained the appeal on the ground that grievance hearings'before the board involved “negotiations with respect to collective bargaining” pursuant to the statutory exception of § l-18a (b).

The judgments are affirmed.

In this opinion the other judges concurred.

       The Waterbury board of education was also named as a defendant in the action, but it joined in the brief of the plaintiff union.

       General Statutes § l-18a (b) provides in relevant part: “ ‘Meeting’ means any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. ‘Meeting’ shall not include . . . strategy or negotiations with respect to collective bargaining . . . .”

       General Statutes § 10-153a provides in relevant part: “Members of the teaching profession shall have and shall be protected in the exercise of the right to form . . . any organization for professional or economic improvement and to negotiate in good faith through representatives of their own choosing with respect to salaries, hours and other conditions of employment . . . .”

       Ryan was employed by the newspaper as an editorial writer and Craig was a reporter with the newspaper.

       General Statutes § 1-21 provides in relevant part: “Meetings of government agencies to be public. ... (a) The meetings of all public agencies . . . shall be open to the public. . . .” The parties do not dispute that the board of education’s committee on grievances is a public agency pursuant to § l-18a (a).

       General Statutes § l-21i provides in relevant part: “(b) (1) Any person denied the right to inspect or copy records under section 1-19 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by sections 1-15, l-18a, 1-19 to l-19b, inclusive, 1-20a and 1-21 to l-21k, inclusive, may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission. . . .
      “(d) Any party aggrieved by the decision of said commission may appeal therefrom, in accordance with the provisions of section 4-183. . . . The commission shall have standing to defend, prosecute or otherwise participate in any appeal of any of its decisions and to take an appeal from any judicial decision overturning or modifying a decision of the commission.

       General Statutes § 4-183 (a) provides in relevant part: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section. . .

       At a January 26, 1994 hearing, the board heard a grievance brought by the school administrators of Waterbury. This grievance hearing was also subject to the commission’s decision. The school administrators of Waterbury, however, did not join the union in any subsequent actions.

       Article 23, § 2, of the collective bargaining agreement sets out the grievance procedure to be followed. “Stage 1. (Informal)—the employee and a WTA representative (if the employee desires) shall discuss the grievance informally with the school official serving as the employee’s immediate administrative superior. While the aforementioned is mandatory, it shall have effect on the running of the time limit of thirty (30) school days set forth in Stage 2, Level 1, below, within which a written grievance must be submitted to the employee’s immediate administrative superior. Therefore, in the event it becomes apparent to the employee that the aforementioned discussion will not be held or completed within said thirty (30) day period, it is incumbent upon the employee to submit the written grievance to his immediate administrative superior in accordance with the provisions of Stage 2, Level 1, below. Stage 2. (Formal) LEVEL 1.—In the event a grievance is not satisfactorily resolved as a result of the informal discussion held pursuant to Stage 1 above, the employee shall reduce the grievance to writing, setting forth a statement, as to the grounds for the grievance and the Article and Section of this Agreement alleged to have been violated, and shall, within thirty (30) school days after the occurrence giving rise to the grievance, submit the written grievance to his immediate administrative superior. The immediate administrative superior may request, another meeting to discuss the grievance with the employee and a WTA representative, which they must attend, but in any event must answer the grievance in writing with copies to the employee and the WTA within five (5) school days following receipt of the written grievance. LEVEL 2.—In the event the grievance is not satisfactorily resolved as a result of the submission required by Level 1 above, the employee, by himself or through the association, may appeal the decision rendered on the grievance by his immediate administrative superior to the Superintendent provided said appeal is received by the Superintendent within five (5) school days following the date upon which the employee’s immediate administrative superior answered the grievance. Within five (5) school days following timely receipt of an appeal filed pursuant to this Level 2, the Superintendent and/or his representative shall meet with the Employee, a WTA representative, and witnesses, if any, for the employee and/or the Board, for the purpose of hearing the appeal and shall within seven (7) school days following the date upon which said meeting is held, render his decision in writing, sending copies to the employee and the WTA. LEVEL 3.—In the event the grievance is not satisfactorily resolved as a result of the decision rendered by the Superintendent in Level 2 above, the employee, by himself or through the Association, may appeal said decision to the Board, provided said appeal shall be filed with the Clerk of the Board in writing, setting forth the basis for the appeal, within five (5) school days following the receipt of the Superintendent’s decision. Within twenty four (24) school days after receipt of a timely appeal made pursuant to this Level 3, the Board shall cause a hearing to be held with the employee, the union, and witnesses, if any, for the employee and/or the Board, with respect to said appeal and shall, within five (5) school days following hearing, render a decision in writing with copies to the employee and the WTA. LEVEL 4.—In the event the grievance is not resolved as a result of the procedures of Level 3 above, the WTA may submit the grievance to binding arbitration in accordance with the Voluntary Rules of Labor Arbitration of the American Arbitration Association and subject to the limitations of Statute, including the Connecticut Arbitration Statutes; provided that the grievance is submitted to the AAA in writing by registered mail, return receipt requested and postage prepaid, no later than ten (10) school days following the receipt of the Board’s decision pursuant to Level 3 above or the expiration of the time limits for making such decision, whichever shall occur first. Copies of the Demand for Arbitration sent to the AAA must also be sent to the Superintendent and to the Board. Fees and expenses of the Arbitrator shall be born equally by both parties.