author: Dupont, C. J.

text:
    State of Connecticut v. David Plaza
    (8389)
    Dupont, C. J., Norcott and Landau, Js.
    Argued September 14
    decision released December 11, 1990

      Gregory T. DAuria, with whom, on the brief, was James W. Bergenn, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Stephen, Sedensky, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). He claims that the trial court improperly (1) denied his motion to suppress identification evidence, (2) allowed the state to elicit hearsay testimony regarding an out-of-court identification, (3) prohibited the defendant from cross-examining the state’s key witness for bias, (4) allowed the admission into evidence of uncharged misconduct, and (5) allowed the state to make an argument in its summation that was not based on the evidence. The defendant further claims that there was insufficient evidence to prove an element of the crime, the sale of a narcotic substance.

The jury reasonably could have found certain relevant facts from the evidence. On the evening of May 22, 1987, Trooper Ramon Valentin of the Connecticut state police entered a Bridgeport bar to make a controlled purchase of narcotics. He was working undercover with the statewide narcotics task force, on loan from the auto theft unit of the state police. After a short period of observing the activity in the bar, Valentin spoke to a person identified only as David, who subsequently was determined to be the defendant. The two conversed for a few minutes, then Valentin told the defendant that he was “interested in some coke or blow.” The defendant reportedly said, “I can take care of that,” and instructed the trooper to follow him to the men’s room.

Once in the men’s room, the defendant pulled a glassine bag containing a white, rock-like substance from his pocket. He placed approximately one half of a gram of the substance into a $20 bill folded like an envelope supplied by Valentin. Valentin paid $50 in unmarked state funds for the substance.

The defendant also gave Valentin a beeper number, which was later shown to be assigned to the defendant’s brother: Sometime during this transaction, the defendant mentioned that his brother drove a late model Jaguar, a fact substantiated by the testimony of another trooper. The defendant also told Valentin that he could supply more cocaine at $1000 an ounce.

Valentin met Trooper John O’Leary, who was acting as cover and surveillance officer for this operation, at a prearranged location approximately ten minutes after the transaction in the bar. O’Leary testified that Valentin gave him a $20 bill folded like an envelope containing white powder. O’Leary field-tested the white powder for the presence of cocaine. Both troopers initialed the $20 bill, and then the bill and its contents were placed in an evidence bag, which was then sealed.

O’Leary further testified that he originally had placed an orange evidence sticker labeled with an incorrect case number on the evidence bag, but that the correct case number was later written on the bag with a grease pencil. The evidence bag was introduced as an exhibit at trial bearing both the incorrect label and the number written in grease pencil.

One month after this incident, Valentin viewed a photographic array assembled by O’Leary. At a suppression hearing held before trial, Valentin testified that he “zoomed in” on photograph number two, thereby identifying the defendant as the David who had sold him the cocaine. A warrant was issued for the defendant’s arrest on the strength of Valentin’s photographic identification and additional tests from the toxicology lab indicating that the substance wrapped in the $20 bill was cocaine.

The defendant first claims that the trial court should have suppressed Valentin’s identification of him because it was based on an unnecessarily suggestive and unreliable photographic array. Specifically, he points out that all of the other photographs were taken against the same kind of paneled background, whereas his was not, and that the size of the head in his photograph was larger than those in the other photographs. He claims that Valentin, as a trooper familiar with mug shots and photographic arrays, would have been influenced by the differences in the photographs, causing him to pick the defendant’s photograph out of the array. The defendant also claims that the identification was unreliable because the viewing took place a month after the alleged purchase, so that Valentin’s memory would have been clouded by intervening investigations. Finally, the defendant points out that Valentin testified that he had initialed the back of the photograph he had chosen but in fact there were no initials on the defendant’s photograph.

Valentin testified at the suppression hearing that he had observed the defendant for ten or fifteen minutes before approaching him to make the buy. The transaction itself took another few minutes. The lighting throughout his encounter with the defendant was adequate for him to see the defendant. Valentin also testified that shortly after leaving the bar he described the defendant to O’Leary as an “Hispanic male with squinted eyes, black hair and a little bit of a moustache.” He later identified the defendant from the photographic array without hesitation. The fact that this later identification of the defendant was made about a month after “the incident does not ‘under all the circumstances’ of this case create a ‘ “very substantial likelihood of misidentification.” ’ ” State v. Fullwood, 193 Conn. 238, 251 n.8, 476 A.2d 550 (1984), citing Manson v. Brathwaite, 432 U.S. 98, 116, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1972); see also Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968).

“It is well settled that in order to succeed on a motion to suppress identification evidence, the defendant must prove (1) that the identification procedures were unnecessarily suggestive; and (2) that the resulting identification was not reliable in the totality of the circumstances.” State v. Myers, 193 Conn. 457, 464, 479 A.2d 199 (1984); State v. Anderson, 20 Conn. App. 271, 274, 560 A.2d 436 (1989), cert. denied, 213 Conn. 813, 569 A.2d 549 (1990). Here, the identification procedures were not unnecessarily suggestive; State v. Outlaw, 216 Conn. 492, 502, 582 A.2d 751 (1990); State v. Boscarino, 204 Conn. 714, 727, 529 A.2d 1260 (1987); State v. Vaughn, 199 Conn. 557, 564, 508 A.2d 430 (1986); and the resulting identification was reliable in the totality of the circumstances. See Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).

The defendant next challenges the trial court’s admission of O’Leary’s testimony about Valentin’s identification of the defendant from the photographic array. The defendant argues that by eliciting hearsay testimony regarding the identification procedures, rather than putting the photographic array itself before the jury, the state protected the array from challenges to its reliability.

We agree that O’Leary’s testimony was hearsay and that the defendant’s objection to its admission should have been sustained. O’Leary’s testimony, however, was merely cumulative of Valentin’s in-court identification of the defendant. State v. Dolphin, 195 Conn. 444, 454, 488 A.2d 812, cert. denied, 474 U.S. 833,106 S. Ct. 103, 88 L. Ed. 2d 84 (1985). We conclude that the court’s ruling is not ground to reverse the judgment because the evidence admitted had already “properly entered the case.” Id., 455, citing State v. Randolph, 190 Conn. 576, 589-90, 462 A.2d 1011 (1983).

We disagree with the defendant’s claim that the trial court improperly deprived the defendant of the opportunity to cross-examine Valentin for bias. The defendant sought testimony relating to the working relationship between O’Leary and Valentin, and asked whether O’Leary’s opinion of Valentin’s performance affected Valentin’s chances of becoming a permanent member of the statewide narcotics task force. The trial court excluded this evidence as irrelevant.

Impeachment of a witness for bias is a matter of right, but where no foundation has been laid by cross-examination of the witness who is under attack for bias, the decision to admit impeaching evidence is within the discretion of the court. State v. Crowley, 22 Conn. App. 557, 559, 578 A.2d 157 (1990).

The defendant here presented no evidence of Valentin’s desire to become a part of the narcotics task force, or of the objective desirability of such an assignment. At the time of the controlled buy, Valentin was already working undercover with the task force, although not permanently a member of it. Thus, there is no basis in the record for the inference that the trooper would act improperly to obtain a post on the task force. “It is a reasonable exercise of judicial discretion to exclude . . . evidence the relevancy of which appears to be so slight and inconsequential that to admit it would distract attention which should be concentrated on vital issues of the case.” State v. Moynahan, 164 Conn. 560, 589, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973).

The defendant’s fourth claim is that Valentin’s testimony about a statement made by the defendant to a third party in the men’s room after the alleged sale to Valentin was inadmissible evidence of uncharged misconduct. Valentin testified that the defendant told the third person, “Yes, I can take care of you.” This statement to the third party closely resembled the defendant’s answer to Valentin when the trooper asked for drugs. The defendant claims that the statement was both irrelevant and inflammatory. The trial court admitted the statement because “it was probative of the defendant’s inclination to be a seller of cocaine.”

Evidence of uncharged misconduct may not be admitted to show a person’s propensity to commit a certain type of crime, but it is admissible to prove issues such as motive, intent, opportunity, or a common scheme or system of criminal activity. State v. Greene, 209 Conn. 458, 464-65, 551 A.2d 1231 (1988): C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 8.3.2. Evidence of misconduct may also be introduced to complete the story of the crime on trial, but in that case such evidence (1) must be relevant and material to at least one of the circumstances encompassed by the exceptions, and (2) its probative value must outweigh its prejudicial effect. State v. Brown, 199 Conn. 47, 56, 505 A.2d 1225 (1986), citing C. McCormick, Evidence (3d Ed.) § 190.

The statement in question, however, does not relate to uncharged misconduct at all, because standing alone, it is not evidence of, or evidence tending to show, the existence of a crime. Compare State v. Sierra, 213 Conn. 422, 568 A.2d 448 (1990); State v. Greene, supra; State v. Brown, supra; State v. Shindell, 195 Conn. 128, 134, 486 A.2d 637 (1985). The statement, however, was admissible because it was relevant and probative of a fact in issue. State v. McClendon, 199 Conn. 5, 8-9, 505 A.2d 685 (1986). The primary question to be resolved beyond a reasonable doubt by the jury was whether the defendant had intentionally sold a narcotic substance. General Statutes § 21a-278 (b). The statement was probative of that issue because it evinced a method of selling characteristic of the defendant. State v. Sierra, supra, 432. The words spoken by the defendant were reminiscent of those spoken to Valentin prior to his controlled buy from the defendant, and they were spoken in the men’s room.

Thus, the statement, coupled with other evidence, tended to indicate the defendant’s intent to sell a narcotic substance and was admissible as an inquiry into the circumstances that followed the crime. State v. Vars, 154 Conn. 255, 267, 224 A.2d 744 (1966). It was evidence tending to establish a fact in issue and its existence rendered the other facts more reasonable and logical. State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). The trial court was, therefore, correct in admitting the statement into evidence.

We will consider the last two claims of the defendant in tandem. First, the defendant claims that because the substance tested by Joel Milzoff, the state toxicologist, was described as a white powder, while the substance bought by Valentin was described as white rock, the state has not proved beyond a reasonable doubt that the substance sold was a “narcotic substance,” an essential element of the crime charged. The defendant buttresses this argument by pointing to the error made in labeling the evidence. He claims this error destroyed the chain of custody thus bringing into question whether the state brought the correct substance before the jury.

When presented with a claim of insufficiency of evidence of an element of a crime, this court first reviews the evidence presented at trial in the light most favorable to sustaining the verdict. State v. Kelly, 208 Conn. 365, 386, 545 A.2d 1048 (1988). “We then determine ‘ “whether the jury could have reasonably concluded, upon the facts established and inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” ’ ” State v. Carpenter, 214 Conn. 77, 78, 570 A.2d 203 (1990); State v. Kelly, 23 Conn. App. 160,173, 580 A.2d 520 (1990). We conclude that the evidence regarding the nature of the substance sold was sufficient to justify the verdict of guilty beyond a reasonable doubt.

Milzoff s testimony was that the substance tested at the state lab was a narcotic. It remained the state’s burden to produce enough evidence so that the jury could reasonably infer that the substance identified at the state laboratory as cocaine was the same substance purchased from the defendant and that the cumulative effect of the evidence was sufficient for the jury to conclude beyond a reasonable doubt that the defendant sold a narcotic substance. See State v. Nieves, 186 Conn. 26, 31, 438 A.2d 1183 (1982); State v. Pina, 185 Conn. 473, 477, 440 A.2d 962 (1981).

Although it was true that the substance purchased was described as “rocklike” and the substance analyzed was described as a powder, the state introduced sufficient evidence to establish an unbroken chain of custody. It was the state that originally introduced and sought to explain the mislabeling of the evidence bag. The state also produced at trial every person who had handled the evidence, except a state chemist whose testimony was included in Milzoff s report, and a courier. “The state is not required to prove every circumstance in the chain of custody by producing all persons who were in a position to come into contact with the evidence.” State v. Bruno, 1 Conn. App. 384, 388, 473 A.2d 311, aff'd, 197 Conn. 326, 497 A.2d 758 (1984), cert. denied, 475 U.S. 1119,106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986). The jury also had before it the initialed $20 bill as an additional identifier of the substance allegedly sold by the defendant. Considering all of this evidence, “the jury could have concluded that the characterization of the substance made by either the doctor or the police officers was inaccurate but that both were referring to the same material.” State v. Nieves, supra, 30. Viewing the evidence as a whole, we conclude that the jury could have reasonably inferred that the substance bought by Valentin was the same substance later tested and found to be cocaine.

Our conclusion that the jury had sufficient evidence before it to draw reasonable inferences about the nature of the substance in question leads to a resolution of the defendant’s claim that the state’s argument during summation was unfairly prejudicial to the defendant. In closing argument, in rebuttal of the defendant’s final argument, the prosecutor hypothesized that the rocky substance purchased by Valentin could have been rendered into powder by its subsequent handling. The defendant claims that this statement allowed the state to resolve an inconsistency in the evidence by presenting, in effect, a scientific theory that had no basis in expert testimony.

To determine whether allegedly improper comments by a prosecutor denied a defendant a fair trial such comments must be considered in the context of the entire trial. State v. Richardson, 214 Conn. 752,760,574 A.2d 182 (1990). The burden is on the defendant to prove that the remarks were so prejudicial that there was a deprivation of a fair trial. In addressing the jury “[cjounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument.” State v. Laudano, 74 Conn. 638, 646, 51 A. 860 (1902).

Here, most of the disputed comments are a recitation of the chain of custody of the purchased substance, and, as such, merely a recapitulation of the testimony of several prosecution witnesses. In addition, the prosecutor did not state that the handling of the substance by the various witnesses had turned the cocaine rock to powder. Instead, he invited the jury to draw the reasonable inference, from substantial evidence, that such handling could have produced this transformation.

This is not a case of “deliberate prosecutorial disregard of express judicial directions or established rules of fair play.” State v. Fullwood, 194 Conn. 573, 584, 484 A.2d 435 (1984). Rather, the question before us is whether the trial court abused its discretion in determining that the prosecutor’s comments did not deprive the defendant of a fair trial. Here, the trial court was in the “better position to determine the propriety of the remarks of counsel and whether or not they are harmful,” and decided that the statement was fair comment, and not harmful to the defendant. State v. Glenn, 194 Conn. 483, 493, 481 A.2d 741 (1984). We agree.

The judgment is affirmed.

In this opinion the other judges concurred.

       Valentin’s exact words were “I believe the picture I identified should have my initials on the back.”

       The prosecutor stated: “When you go into the jury room to go get the cocaine, the cocaine that was put in the $20 bill, stuck into the officer’s pocket, given to another officer who put it into an evidence bag which was then put in the vault, sent up to the lab, opened up, some parts taken and tested, wrapped back up in the $20 bill and sent back down to the court. Look at it. It might very well be in powder form now after all that. That is your decision to make.”


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    Ellis Sheila Franke Berne v. Town of Stratford
    (8425)
    Dupont, C. J., Spallone and Foti, Js.
    Argued September 28
    decision released December 11, 1990

      Laurence V. Parnoff with whom, on the brief, were Debra L. Arganese and David A. Scalzi, for the appellant (plaintiff).

      Robert J. Mead, with whom, on the brief, was Anthony M. Guerrera, for the appellee (defendant).
   Spallone, J.

In this action for a permanent injunction, the plaintiff appeals following the trial court’s granting of the defendant’s motion for summary judgment. We reverse the decision of the trial court.

The record reveals the following facts. The plaintiff, Ellis Berne, owns an undeveloped parcel of land located at 171 Beaver Dam Road in Stratford. In 1970, the defendant town of Stratford acquired a right-of-way over Beaver Dam Road and, in 1984, decided to improve and pave the roadway. On July 14, 1986, the Stratford town council approved a contract for the improvement of Beaver Dam Road and authorized the town administrator to proceed with a taking, by eminent domain, of two permanent drainage easements across the plaintiffs property and two temporary construction easements adjacent to the permanent easements.

On August 27,1986, the defendant commenced condemnation proceedings for the taking by filing its statement of compensation. The defendant did not provide the plaintiff with notice and a public hearing before undertaking this action. In response, the plaintiff commenced an action for a permanent injunction seeking to restrain the defendant from taking the easements. The plaintiff claimed that the defendant had violated its charter by not giving formal notice or holding a public hearing prior to the commencement of condemnation proceedings. After a full hearing, the trial court, Meadow, J., found that the defendant’s charter required notice and a hearing prior to the taking, and, thus, granted a temporary injunction restraining the defendant from taking the easements.

During a subsequent hearing held to determine whether to convert the temporary injunction to a permanent injunction, both the plaintiff and the defendant filed motions for summary judgment. The trial court, Zoarski, J., finding that the defendant’s charter did not require notice and a hearing before the taking, denied the plaintiff’s motion and granted the defendant’s motion. The temporary injunction was lifted and judgment was rendered for the defendant.

The fact that no formal notice was given and no public hearing was held prior to the defendant’s taking is not in dispute. Under state eminent domain proceedings, no such notice or hearing is required. General Statutes §§ 48-6, 48-12 and 8-130 through 8-133. Where the taking is for public use, the due process clause of the fourteenth amendment to the United States constitution does not require that the taking be determined upon notice and hearing. Bragg v. Weaver, 251 U.S. 57, 58-59,40 S. Ct. 62, 64 L. Ed. 135 (1919). Section 6.4.2 of the defendant’s charter, however, provides that “[bjefore any public work or improvement shall be undertaken, the council shall give notice to all persons whose property will be affected thereby that such public work or improvement is proposed to be undertaken. . . .” (Emphasis added.)

Section 6.4.1 of the defendant’s charter defines “public work or improvement” as including the “improving or repairing of any street.” That section also defines the terms “property” and “property affected thereby” as including “all land, with or without improvements thereon . . . damaged or benefited as an incident to any public work or improvement, the owners of which may ... be paid damages for the taking or damaging thereof.”

It is clear, therefore, that a “public work or improvement” includes the construction and the improvement of a street and encompasses the drainage system necessary for that improvement. Notice must be given, before that proposal is undertaken, to “all persons whose property will be affected thereby.” The words “will be” connote futurity; notice must be given to those whose property will be, in the future, affected by the public work or improvement. “Property affected” includes that upon which the owners “may be paid damages for the taking,” such as the property in this case. With these definitions in mind we might reasonably restate these charter provisions as follows: Notice must be given to and a public hearing held for those persons whose property will be, at some future time, affected by the taking of that property as the result of the undertaking of a public work or improvement such as the construction of a storm water drainage system.

The construction of the storm drainage system is a public work or improvement. It was being undertaken by means of the taking of the plaintiffs property. Therefore, the Stratford charter required notice and a public hearing before the taking.

We recognize that proposed public works go through various stages of approval and implementation, and understand that it would be impossible for the town to give notice to all those whose property “will be affected” before it can determine who those persons are. A town must engage in some planning and engineering activity before it can determine whether a proposal is feasible, and, if so, which property owners “will be” affected by the proposal. For example, the town must be able to determine whether a roadway requires any storm drainage and, if so, where that drainage might be placed before it can determine which properties will be affected. It is clear in this case, however, that the storm drainage system for Beaver Dam Road was being “undertaken” when the town council voted to take the plaintiff’s property. At that point, the town had clearly determined that the plaintiff’s property was going to be affected.

The trial court, in its memorandum of decision, expressly stated: “The Town had not, at the time of the June 29,1987 hearing, undertaken any public work or improvement on plaintiff’s property.” This narrow reading of § 6.4.2, in isolation of § 6.4.1, ignores the fact that the latter charter provision mandates a public hearing with notice prior to a condemnation proceeding. “ ‘ “Where the meaning of a [charter provision] is plain and unambiguous, the enactment speaks for itself and there is no occasion to construe it.” ’ ” State v. James, 197 Conn. 358, 363, 497 A.2d 402 (1985); Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984); Connecticut State Board of Labor Relations v. Board of Education, 177 Conn. 68, 73,411 A.2d 28 (1979). The requirements of the charter provision are clear. Notice and a hearing regarding a proposed public work or improvement must be given prior to the decision to take property in furtherance of that proposal.

The defendant did .not follow its own charter provisions when it initiated the taking. It is axiomatic that ‘[wjhere the municipal charter prescribes a particular procedure by which a specific act is to be done or a power is to be performed, that procedure must be followed for the act to be lawful.’ Caldrello v. Planning Board, 193 Conn. 387, 391, 476 A.2d 1063 (1984).” Norwalk v. Board of Labor Relations, 206 Conn. 449, 452, 538 A.2d 694 (1988). Accordingly, the defendant’s attempted condemnation of the plaintiff’s property is unlawful and is, therefore, null and void.

Our resolution of the issue of lack of notice is dispositive of this appeal. We hold that because the trial court improperly granted summary judgment for the defendant a remand is necessary for a hearing to be held to determine whether a permanent injunction should be ordered.

The judgment is reversed and the case is remanded with direction to reinstate the temporary injunction and to conduct a hearing to determine whether a permanent injunction is appropriate in this matter.

In this opinion the other judges concurred.

       Section 6.4.2 of the defendant’s charter provides: “Before any public work or improvement shall be undertaken, the council shall give notice to all persons whose property will be affected thereby that such public work or improvement is proposed to be undertaken. Such notice shall be signed by the town clerk, shall describe in general terms the nature of the public work or improvement to be undertaken and shall specify a time and place when all persons whose property is to be affected thereby may appear and be heard in relation thereto. Such notice shall be filed in the office of the town clerk, and he shall cause it to be published twice, the last time at least five days before the date of hearing in some newspaper having a circulation in the town.”

       “Sec. 6.4.1. DEFINITIONS.
      “As used in sections 6.4.2 to 6.4.11, inclusive, the term ‘public work or improvement’ shall include any of the following, or any combination of the following: the laying out, construction, alteration, widening, straightening, grading, improving or repairing of any street, alley or other public way; and the laying out, construction, alteration, improvement or repairing of any curb, gutter, sidewalk, or storm sewer over, upon, adjacent to or under any street, alley or other public way; and the laying out, construction, alteration, extension, enlargement and repairing of the sanitary sewerage system and sewage disposal plant of the town. The term ‘council’ shall include any agency, committee or commission empowered by the town council to act in such matter. The terms ‘property’ and ‘property affected thereby’ shall include all land, with or without improvements thereon, and all other property of any kind'or nature, damaged or benefited as an incident to any public work or improvement, the owners of which may be assessed to pay for such public work or improvement or the owners of which may be paid damages for the taking or damaging thereof.”

       The defendant asserts that, if construction had not started on the drainage system, the public work or improvement had not been undertaken. Such an interpretation would render this charter section meaningless. If the taking of property did not constitute the undertaking of a public work or improvement, the town could take any desired properties without notice or a hearing. After the taking, there would be no persons whose property would be affected by the public work or improvement, other than the town, and, thus, no one entitled to notice or a hearing.


text:
    State of Connecticut v. Chester Eugene Tucker
    (9446)
    Dupont, C. J., Spallone, Daly, O’Connell, Foti and Lavery, Js.

      Considered September 21
    decision released December 11, 1990

      Temmy Anne Pieszak, assistant public defender, in support of the motion.

      Leah Hawley, assistant state’s attorney, in opposition to the motion.
   Dupont, C. J.

The sole issue of this case is whether the state filed a timely appeal. The defendant was charged with the sale of narcotics in violation of General Statutes § 21a-278 (b). On July 13,1990, the court granted the defendant’s motion for accelerated rehabilitation pursuant to General Statutes § 54-56e. On July 18,1990, the court dismissed the charges against the defendant, and, on the same day, the state, pursuant to General Statutes § 54-96, filed a motion for permission to appeal the granting of the accelerated rehabilitation and the subsequent dismissal of the charges. The court granted the state permission to appeal on July 27, 1990, and the state filed its appeal within twenty days from that date. The defendant then filed a timely motion to dismiss on the ground that the state’s appeal was untimely because it was not filed within twenty days of the notice of the decision about which the state complains.

Generally, an appeal must be filed within twenty days from issuance of notice of the rendition of the judgment or decision from which the appeal is taken, except where a different period is provided for by statute. Practice Book § 4009. A defendant in a criminal prosecution may appeal “in the same manner and with the same effect as in civil actions.” General Statutes § 54-95 (a). The state, however, cannot appeal in a criminal case unless such an appeal is permitted by the trial court pursuant to General Statutes § 54-96.

Section 54-96 provides: “Appeals from the rulings and decisions of the superior court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the supreme court or to the appellate court, in the same manner and to the same effect as if made by the accused.” This statute does not expressly provide for an appeal period different from that provided by Practice Book § 4009.

The “language [of General Statutes § 54-96] unmistakably confers upon the trial court the choice of granting or withholding the appeal privilege depending upon the circumstances of each case. ... It follows, therefore, that without [the trial court’s] permission there is no viable appeal . . . .” State v. S & R Sanitation Services, Inc., 202 Conn. 300, 308, 521 A.2d 1017 (1987). In general, permission of the trial court is a prerequisite to the existence of the state’s right to appeal in a criminal matter. Id. Once permission to appeal is granted, the rules that set out the procedures of an appeal must be consulted in order to give life to that appeal.

The defendant argues that the appeal period for the state commenced when the decision of which the state complains was rendered, namely when the charges were dismissed on July 18, 1990. The state, however, argues that the appeal period commenced when the court granted permission to appeal on July 27, 1990. If the defendant is correct, the state’s appeal filed on August 8, 1990, is not timely, but, if the state is correct, the appeal is timely.

Although § 54-96 does not provide for an appeal period different from that expressed in Practice Book § 4009, it cannot be construed in a way that leads to a difficult and bizarre result; Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 593, 522 A.2d 771 (1987); but must be interpreted with common sense in order to reach a reasonable result consonant with its purpose. Healy v. Freedom of Information Commission, 18 Conn. App. 212, 217, 557 A.2d 561 (1989). Construing § 54-96 as commencing the appeal period from the date of the action of which the state complains leads to a bizarre result that thwarts the state’s ability to appeal. If the appeal period commences at the time of the “ruling or decision” of the court, then theoretically the period could expire before the state even has the right to appeal. The state’s potential right to appeal, therefore, would be dependent upon the trial court’s promptness in ruling on the motion for permission to appeal.

The defendant argues that the state, in order to secure its right to appeal, could move for an extension of time to appeal pursuant to Practice Book § 4040. This argument must fail. It is illogical for the state to move for an extension of time to appeal before it is known that the state’s right to appeal exists. Requiring the state so to move would result in an inefficient use of judicial resources in the event that permission to appeal is ultimately denied.

The defendant’s argument is antithetical to the purpose of General Statutes § 54-96. The purpose of the statute is to provide for appellate review if the presiding judge permits it. The date of the exercise of the court’s discretion in favor of the state is the condition precedent to the appeal, and is the date from which the appeal period begins to run, rather than the date of the ruling or decision of the trial court.

This conclusion will not encourage the state to delay in seeking permission to appeal. To acquire the right to appeal, the state must move for permission to appeal at the time of the judgment; State v. Avcollie, 174 Conn. 100, 108, 384 A.2d 315 (1977); or with “reasonable promptness” thereafter, provided that it expresses its intent to appeal at the time of the judgment. State v. Ross, 189 Conn. 42, 46-47, 454 A.2d 266 (1983); State v. Middleton, 20 Conn. App. 321, 326, 566 A.2d 1363 (1989). These cases limit the time period during which the state may move for permission to appeal. Allowing the appeal period to commence once the state has permission to appeal would not change this limitation. In this case, the state moved for permission to appeal on the same day that the trial court dismissed the charges against the defendant. We hold that § 54-96 should be interpreted so that the appeal period runs from the date permission to appeal is granted.

The defendant’s motion to dismiss is denied.

In this opinion the other judges concurred.

       An appeal is not precluded by the state if “the ‘denial was so arbitrary as to constitute an extreme abuse of discretion rendering the denial ineffective. . . ” State v. Bergin, 214 Conn. 657, 660, 574 A.2d 164 (1990), quoting State v. Avcollie, 174 Conn. 100, 110, 384 A.2d 315 (1977); State v. Bellamy, 4 Conn. App. 520, 522, 495 A.2d 724 (1985).

       We are aware of the case of LaReau v. Reincke, 158 Conn. 486, 264 A.2d 576 (1969), in which General Statutes § 52-470, which establishes a condition precedent for appellate review, as does § 54-96, was interpreted to mean that the appeal period from a judgment rendered in a habeas corpus proceeding runs from the date of that judgment. General Statutes § 52-470 and 54-96, however, serve different purposes and contain different language. Section 52-470 requires an appellant to petition the trial court, within ten days after the case is decided, to obtain certification that “a question is involved in the decision which ought to be reviewed. . . .” Section 54-96, in contrast, contains no such time limitations and grants to the state, not a defendant, the right to appeal from “questions of law.”


author: Lavery, J.

text:
    State of Connecticut v. Byron Anderson
    (8951)
    Dupont, C. J., Foti and Lavery, Js.
    Argued September 26
    decision released December 11, 1990

      KentDrager, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Herbert Carlson, senior assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant appeals from his conviction and sentencing on a three count substitute information to which he entered a guilty plea to one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), one count of burglary in violation of General Statutes § 53a-102 (a), and one count of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1).

On appeal, the defendant raises two issues, first, that the trial court’s failure to advise him that he was facing a mandatory minimum nonsuspendable sentence rendered his guilty pleas constitutionally invalid because they were not made knowingly and voluntarily and, second, that the trial court deprived him of the statutorily mandated notice of his right to seek review of his sentence. The defendant maintains that because of these alleged errors his case should be remanded and he should be allowed to withdraw his guilty pleas. In the alternative, the defendant seeks a remand of his case with instructions to the trial court to give the defendant the requisite statutory notice and thirty days to file his application for sentence review. We disagree and affirm the trial court’s judgment.

The facts relevant to the disposition of this appeal follow. The victims in this case are a married couple who at the time of the incident were living in the city of Bristol. On January 1,1986, at approximately 1 a.m., the defendant forcibly entered the victims’ apartment. After entering the apartment, the defendant began beating the male victim with a broomstick and told the female victim that he would continue beating her husband, and would also beat her, unless she had sexual intercourse with the defendant. The defendant then sexually assaulted the female victim three times, forced the male victim to perform fellatio, vandalized the victims’ apartment, and finally left the apartment with the victims’ money and VCR.

After being indicted on an eleven count information, the defendant entered into an agreement with the state to plead guilty to a substitute three count information. It was further agreed that there would be a cap of twenty years on the prison term and that the defendant could argue for a reduced sentence. The defendant entered regular guilty pleas on the counts of sexual assault in the first degree and burglary in the second degree and entered an Alford plea to the count of sexual assault in the third degree. Pursuant to Practice Book § 711, the trial court canvassed the defendant personally prior to accepting his guilty pleas.

I

The defendant first claims that his guilty pleas were not made knowingly and voluntarily because the trial court failed to advise him of the minimum mandatory nonsuspendable sentence that he faced on the count of sexual assault in the first degree under General Statutes § 53a-70. The defendant maintains that the failure of the court to meet this requirement of Practice Book § 711 renders his guilty pleas constitutionally invalid.

Under Practice Book §§ 720 and 721, a defendant may withdraw his guilty plea on the ground of a deficient plea canvass only by bringing the deficiency to the court’s attention prior to the conclusion of the sentence proceeding. State v. Morant, 13 Conn. App. 378, 383-84, 536 A.2d 605 (1988). The failure to raise such a claim in a timely manner will ordinarily preclude review of the plea. Id.; State v. Schaeffer, 5 Conn. App. 378, 385, 498 A.2d 134 (1985). Even though the defendant failed to present this claim to the trial court, he argues that the claim is nevertheless reviewable under the exceptional circumstances doctrine articulated in State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

In State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), our Supreme Court reformulated the test of reviewability in Evans. The Golding court held that when a defendant fails to preserve his claim at trial he can prevail on that claim 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.” (Emphasis omitted.) Id., 239-40. When any one of these conditions are not met, the defendant cannot prevail. Id., 240. We may, therefore, focus our attention on whichever element is most relevant to the circumstances before us. Id.

In a case like this one, where the minimum mandatory nonsuspendable sentence for the crime to which the defendant pleads guilty is less than the sentence agreed to in the plea agreement, the failure of the trial court to advise the defendant of that mandatory sentence is not, in itself, a violation of the defendant’s due process rights. State v. Collins, 207 Conn. 590, 595-96, 542 A.2d 1131 (1988); State v. Wright, 207 Conn. 276, 284-88, 542 A.2d 299 (1988).

Although the trial court is required under Practice Book § 711 to include the minimum mandatory sentence in its plea canvass, the record in this case reveals that the defendant’s plea was intelligently and voluntarily made and that the maximum sentence that the defendant knew he was facing, pursuant to the plea agreement, was greater than the minimum sentence mandated by statute. Thus, the omission of that portion of the plea canvass, under the limited circumstances of this case, does not raise a claim of constitutional magnitude that would warrant our review of the defendant’s claim under the Evans-Golding bypass doctrine.

II

The defendant’s second claim is that the trial court did not advise him of his statutory right to seek review of his sentence by the Sentence Review Division of the Superior Court. The defendant asserts that under General Statutes § 51-195 and the recent Connecticut Supreme Court case of Staples v. Paiten, 214 Conn. 195, 571 A.2d 97 (1990), he had a right to sentence review.

General Statutes § 51-195 provides, inter alia, that sentence review shall be available to any person sentenced to confinement for three or more years. The statute outlines several exceptional circumstances where such review is not available, including sentences imposed as a result of the court’s acceptance of a plea agreement. The defendant, in his brief, relies on the recent ruling by our Supreme Court in Staples v. Paiten, supra, for support of his asserted entitlement to sentence review.

In Staples, the defendant pleaded guilty to reduced charges of assaulting a police officer and violating parole that were contained in a substitute information. Prior to entering his pleas, the defendant did not enter into a plea agreement with the state as to his sentencing. The defendant in Staples asserted that because there was no specific agreement as to his term of incarceration, he had not entered into a “plea agreement” under § 51-195 and his sentence was therefore subject to review.

Although not defined in the statute, Staples held that the term “plea agreement,” as it was used in § 51-195, “means an agreement entailing a specific term of years.” Id., 199. Staples further held that because the defendant did not agree to a specific term of years, the denial of sentence review in that case was inappropriate.

In the present case, the defendant maintains that his agreement with the state allowed for the imposition of a maximum sentence of twenty years with the right to argue for a lesser sentence, and thus his agreement was not for a specific term and did not constitute a “plea agreement” under § 51-195. Because the case before us is clearly distinguishable from Staples, we cannot agree with the defendant’s assertion. Unlike Staples, the defendant here did agree to a specific term of years. The defendant agreed to a term of twenty years and retained his right to argue for a lesser sentence. He understood, when he entered into the plea agreement, that his maximum sentence exposure of thirty-five years was reduced to twenty years as a part of that agreement. This factual distinction between this case and Staples is dispositive of the defendant’s entitlement to sentence review. Here the plea agreement was not left open as to the maximum sentence term. The defendant knew that his potential sentence would not exceed twenty years.

The defendant’s agreement to plead guilty to the three count substitute information in exchange for a sentence reduction from a potential thirty-five years to twenty years was of sufficient specificity to constitute a “plea agreement” and thus made him ineligible for sentence review.

The judgment is affirmed.

In this opinion the other judges concurred.

       Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), a criminal defendant may submit to being punished as if he were guilty of the crime charged without expressly admitting his guilt. State v. Amarillo, 198 Conn. 285, 314 n.17, 503 A.2d 146 (1986). By doing so, the defendant acknowledges that the state’s case is so strong that he is willing to enter a guilty plea despite his unwillingness to admit his guilt. State v. Palmer, 196 Conn. 157, 169 n.3, 491 A.2d 1075 (1985).

       General Statutes § 53a-70 (b) provides: “Sexual assault in the first degree is a class B felony for which one year of the sentence imposed may not be suspended or reduced by the court.”

       Practice Book § 720 provides: “[withdrawal of plea] — when allowed
      “A defendant may withdraw his plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his plea upon proof of one of the grounds in Sec. 721. A defendant may not withdraw his plea after the conclusion of the proceeding at which the sentence was imposed.”
      Practice Book § 721 provides in relevant part: “[withdrawal op PLEA]-GROUNDS
      “The grounds for allowing the defendant to withdraw his plea of guilty after acceptance are as follows:
      “(1) The plea was accepted without substantial compliance with Sec. 711;
      “(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed;
      “(3) The sentence exceeds that specified in a plea agreement on which the court had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered . . . .”

       Practice Book § 711 provides: “[plea of guilty or nolo contendere— acceptance]--advice to defendant
      “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      ‘ ‘(5) The fact that he has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he has the right to be tried by a jury or a judge and that at that trial he has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.”

       General Statutes § 51-195 provides in relevant part: “application for review of sentence. Any person sentenced on one or more counts of an information to a term of imprisonment for which the total sentence of all such counts amounts to confinement for three years or more, may, within thirty days from the date such sentence was imposed or if the offender received a suspended sentence with a maximum confinement of three years or more, within thirty days of revocation of such suspended sentence, except in any case in which a different sentence could not have been imposed or in any case in which the sentence or commitment imposed resulted from the court’s acceptance of a plea agreement or in any case in which the sentence imposed was for a lesser term than was proposed in a plea agreement . . . .”


author: Daly, J.

text:
    State of Connecticut v. Earl Badgett
    (8989)
    Dupont, C. J., Daly and Foti, Js.
    Argued October 29
    decision released December 11, 1990

      G. Douglas Nash, public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, for. the appellee (state).
   Daly, J.

The defendant appeals from the judgment convicting him of violating General Statutes § 2 la-278 (b), prohibiting the sale of narcotics by a person who is not drug-dependent. The court rendered the judgment based on the defendant’s plea of guilty, pursuant to the Alford doctrine. The defendant claims that the trial court (1) improperly found that the defendant knowingly and voluntarily entered his guilty plea, and (2) should have allowed the defendant to withdraw his plea or, alternatively, should have conducted an evidentiary hearing when the defendant raised the issue before the sentencing. We conclude that the trial court should have considered the defendant’s attempt to withdraw his guilty plea by conducting an evidentiary hearing.

The following facts are germane to this appeal. On July 18,1989, the defendant was arraigned before the court, Damiani, J., on a one count information charging him with the unlawful sale of narcotics by a person who is not drug-dependent. After the defendant waived the reading of the information, he pleaded not guilty. On October 23, 1989, the defendant appeared before the court, Ronan, J., to change his plea and enter a guilty plea under Alford. The court’s canvass indicated that the defendant understood that he was pleading guilty to General Statutes § 2 la-278 (b) because the defendant affirmed that his counsel had explained it to him. No mention was made that this statute applied to persons who are not drug-dependent. The court also told the defendant that he could not withdraw his plea of guilty once it was accepted.

On November 13, 1989, during the sentencing proceeding, the following colloquy occurred:

“The Court: . . . Does your client wish to say anything?
“Mr. McIntosh: [Assistant Public Defender, Counsel for defendant]: If I may simply have a moment to inquire — Mr. Badgett does request to make a statement.
“The Court: What would you like to say Mr. Badgett?
“Mr. Badgett: I don’t understand why I’m not drug-dependent when I am. I have sniffed a lot of cocaine in the last few years.
“The Court: You have already entered your plea. Your plea has been canvassed, Mr. Badgett. The time for that issue has passed.”

Judge Ronan then proceeded to sentence the defendant to fifteen years imprisonment.

The defendant specifically claims that the plea canvass did not comply with Practice Book § 711, and that the postplea sentencing proceeding did not comply with Practice Book § 720 because the defendant was not allowed to present his grounds for withdrawing his guilty plea under Practice Book § 721 (1) and (2). The defendant argues that his statement to the court regarding his drug dependency was a timely request to reconsider whether his plea was knowing or voluntary under Practice Book §§ 720 and 721, and whether the plea canvass substantially complied with Practice Book § 711. We agree.

We begin our analysis by noting that once a guilty plea has been entered, ordinarily the procedure for challenging the plea is by a motion to withdraw the plea made to the court before the conclusion of the sentencing proceeding. Practice Book § 720; State v. Anderson, 23 Conn. App. 564, 567, 583 A.2d 142 (1990); State v. Morant, 13 Conn. App. 378, 383-84, 536 A.2d 605 (1988). A defendant is not entitled to withdraw his plea, nor is he entitled to an evidentiary hearing to determine the voluntariness of his plea merely because he makes a general allegation to the contrary. In considering whether to hold an evidentiary hearing on a motion to withdraw a guilty plea, the court may disregard any allegations of fact that are either conclusory, vague or oblique, whether contained in the motion or made in an offer of proof. State v. Lasher, 190 Conn. 259, 266, 460 A.2d 970 (1983).

In State v. Morant, supra, this court concluded that a defendant’s statement, questioning the voluntariness of his plea, made after the sentence was imposed but before the termination of the proceedings was sufficient to require the holding of an evidentiary hearing. Id., 385. The court in Morant considered the defendant’s statements made after the imposition of sentence as timely notice to the court that his plea may not have been voluntary, and thus constituted a constructive motion to withdraw the plea. See id., 383-84.

In the present case, the defendant clearly indicated to the court that he used narcotics, and he questioned why he was not being considered drug-dependent when he was drug-dependent. These statements were made before the imposition of sentence. Thus, as in Morant, the court had fair notice that the defendant may not have entered his plea voluntarily as mandated by Practice Book § 721 (2). Here, the court also had notice that the defendant may not have fully understood the nature of the crime with which he was charged as mandated by Practice Book § 711, or the fact that it carried a mandatory minimum sentence or that the defendant may have entered his plea without knowledge of the nature of the charge as prescribed by Practice Book § 721 (2). See generally State v. Hackett, 16 Conn. App. 601, 602-603, 548 A.2d 16 (1988), and cases cited therein. Both in Morant and here, the trial court foreclosed the defendant from making any other statements and abruptly ended further inquiry. We further note that here, as in Morant, the trial court improperly told the defendant that once his plea was accepted, it could not be withdrawn. Id., 385. Like Morant, this admonition could have stifled the defendant’s exercise of his right to challenge or withdraw his plea. Thus, under the circumstances of this case, the defendant should have been given an opportunity to present evidence in accordance with Practice Book §§ 720 and 721.

This case is remanded to the trial court for an evidentiary hearing to determine whether the defendant should be allowed to withdraw his plea of guilty. If the trial court determines that the defendant should be so allowed, the judgment is reversed and the case is subject to further proceedings; if the trial court determines that the defendant should not be allowed to withdraw his plea, the judgment is affirmed.

In this opinion the other judges concurred.

       Under North Carolina v. Alford, 400 U.S. 25, 35, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), a criminal defendant is not required to admit Ms guilt, but does consent to being punished as if he were gmlty. State v. Amarillo, 198 Conn. 285, 314 n.17, 503 A.2d 146 (1986).

       The defendant was initially charged not only under General Statutes § 21a-278 (b), but also as a subsequent narcotics offender under General Statutes § 21a-277. As part of the plea bargain, the state nolled this subsequent narcotics offender charge. The defendant was told by the trial court that he would receive a fifteen year sentence before any canvass took place.

       Section 711 provides: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge . . . and
      “(5) The fact that he has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he has the right to be tried by a jury or a judge and that at that trial he has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.”

       Section 720 provides: “A defendant may withdraw his plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his plea upon proof of one of the grounds in Sec. 721. A defendant may not withdraw his plea after the conclusion of the proceeding at which the sentence was imposed.”

       Section 721 provides: “The grounds for allowing the defendant to withdraw his plea of guilty after acceptance are as follows:
      “(1) The plea was accepted without substantial compliance with Sec. 711;
      “(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed . . . .”

       While it is true that the absence of drug dependency is not an element of the offense charged here under General Statutes § 21a-278 (b); State v. Januszewski, 182 Conn. 142, 165-66, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922,101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981); once the defendant has introduced substantial evidence to show dependency, the state is required to prove its absence beyond a reasonable doubt. Id.; State v. McNeil, 21 Conn. App. 519, 521, 574 A.2d 1314 (1990). A drug-dependent person is exempt from liability under General Statutes § 21a-278 (b); State v. Luca, 19 Conn. App. 668, 671, 563 A.2d 752 (1989); but may be liable under General Statutes § 21a-277 (a), the lesser included offense of § 21a-278 (b). State v. McNeil, supra, 523.


author: Per Curiam.

text:
    Louise Bailey Kronholm v. Conrad John Kronholm
    (8270)
    (8280)
    Spallone, Foti and Landau, Js.
    Argued October 31
    decision released November 21, 1990

      Richard P. Weinstein, for the appellant-appellee (named defendant).

      Joseph G. Lynch, with whom,.on the brief, was JohnB. Farley, for the appellants-cross appellees (intervening defendants).

      Bruce Louden, with whom was Carol Widing, for the appellee-appellant (plaintiff).
   Per Curiam.

These appeals arise from our earlier decision in Kronholm v. Kronholm, 16 Conn. App. 124, 547 A.2d 61 (1988), involving a disputed alimony payment, in which we remanded to the trial court for an evidentiary hearing to determine whether the parties intended to establish a trust for the benefit of their children. On remand, the trial court determined that the parties intended the creation of the trust only in the event that the plaintiff died prior to receipt of the lump sum alimony payment. The court therefore ordered the defendant to pay the plaintiff the alimony payment that was in dispute. The defendant now appeals from the trial court’s decision and the plaintiff cross appeals from the denial of her claim for counsel fees.

The defendant challenges the trial court’s factual findings as they pertained to the intent of the parties. The standard of review in dissolution appeals is well settled. This court “ ‘will not reverse a trial court’s rulings regarding financial orders unless the court incorrectly applied the law or could not reasonably have concluded as it did.’ ” (Emphasis in original.) Febbroriello v. Febbroriello, 21 Conn. App. 200, 202, 572 A.2d 1032 (1990). As we have often stated, we cannot retry the case. Coles v. Coles, 17 Conn. App. 831, 832, 553 A.2d 1169 (1989). Our review of the record fails to disclose that the factual findings of the court as to the financial orders were clearly erroneous in view of the evidence that was before it, or that the decision was otherwise erroneous in law.

On her cross appeal, the plaintiff claims that the trial court improperly declined to award her counsel fees incurred in a contempt proceeding. In a contempt proceeding, even in the absence of a finding of contempt, a trial court has broad discretion to make whole a party who has suffered as a result of another party’s failure to comply with the court order. Nelson v. Nelson, 13 Conn. App. 355, 367, 536 A.2d 985 (1988). In determining whether the trial court’s broad legal discretion is abused, “ ‘ “ ‘great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.’ . . .” ’ ” (Citations omitted.) Timm v. Timm, 195 Conn. 202,206, 487 A.2d 191 (1985). The trial court concluded that an award of counsel fees was not appropriate in this case. Nothing in the record indicates that there was an abuse of the trial court’s discretion.

The judgment is affirmed.

       The parties’ children intervened as defendants on the remand and filed a separate appeal (8280). They filed a joint brief with the defendant and make the same claim on appeal.

       The plaintiff claims for the first time in her cross appeal that the trial court should have conducted an evidentiary hearing before deciding whether to award counsel fees. She failed to assert such a claim in the trial court and did not therefore preserve her claim below. As a threshold matter, on two occasions the court did express its intention to consider whether to allow counsel fees. Only if these fees were allowed would a hearing have been necessary to determine the amount of the fees. On both occasions, the plaintiff affirmatively indicated her consent to that procedure and therefore failed to preserve her claim.


author: O’Connell, J.

text:
    Galt Booth et al. v. Robert C. Flanagan et al.
    (8703)
    Dupont, C. J., Spallone and O’Connell, Js.

      Argued October 1
    decision released December 11, 1990

      Bruce L. Elstein, for the appellants (plaintiffs).

      Roger J. Frechette, with whom was Matthew E. Frechette, for the appellee (named defendant).

      Roger Sullivan, for the appellees (defendant Stephen Yardan et al.).
   O’Connell, J.

The plaintiffs appeal from a summary judgment rendered for the defendants in an action arising out of a contract for the sale of real estate. The case was previously before this court in Booth v. Flanagan, 19 Conn. App. 413, 562 A.2d 592 (1989). In that decision, we set aside a summary judgment that the trial court had rendered sua sponte without either a motion or any supporting documents having been filed by the parties. See Practice Book § 384. While on remand to the trial court for further proceedings, the defendants filed a summary judgment motion supported by affidavits and other documentary proof. Summary judgment was again granted in favor of the defendants. We affirm the judgment of the trial court.

The pleadings and affidavits available for the trial court’s consideration disclose the following facts. On April 20, 1984, the decedent, Carol A. Schroff, died owning property in which the plaintiffs were tenants. The East Haven Probate Court, assuming that Schroff died intestate, appointed the defendant Robert Flanagan administrator of her estate on May 21, 1984. On June 7,1984, Flanagan contracted in writing to sell the property to the plaintiffs. The contract was contingent, among other things, on the plaintiffs’ ability to obtain a mortgage commitment on or before August 1,1984.

In July, 1984, the decedent’s will was found and admitted to probate. On September 17,1984, the Probate Court revoked Flanagan’s appointment as administrator by approving the defendant Stephen Yardan, who was named in the will, as executor. On October 4, 1984, Flanagan returned the plaintiffs’ initial deposit and informed them that he had been removed as the fiduciary and no longer had authority to sell the property. Yardan resigned on August 27, 1985, and the defendant Gary Flesche, who was named in the will as both successor executor and residuary legatee, was approved as successor executor. The property in question would pass to Flesche as residuary legatee.

The dispositive issue on appeal is whether there was an enforceable contract for the sale of real estate. We look to the statute of frauds to make this determination. General Statutes § 52-550 (a) (4) provides that no civil action shall be brought on any agreement for the sale of real estate unless that agreement or a memorandum thereof is in writing and signed by the party to be charged. A written agreement or memorandum thereof is an ancient requirement; Tainter v. Brockway, 1 Root 59 (1773); and whether the writing is sufficient to satisfy the statute has been the subject of infinite litigation.

To determine whether the statute of frauds is satisfied in the present case, we focus on the mortgage contigency clause. The degree of detail required when an agreement is conditioned on the purchaser’s obtaining a mortgage was a source of confusion among drafters of real estate sales documents. See Montanaro v. Pandolfini, 148 Conn. 153,157,168 A.2d 550 (1961). This uncertainty was removed in 1976 by the enactment of Public Acts 1976, No. 76-69, now General Statutes § 49-5b, which provides that a mortgage contigency clause is sufficient to satisfy the statute of frauds if it contains at least the following information: (1) the principal amount of the loan required to fulfill the contigency; (2) the time period within which the mortgage commitment must be obtained; and (3) the term of the mortgage expressed in years.

In the present case, the mortgage contingency clause did not state the principal dollar amount of the loan or the term of the mortgage expressed in years that the plaintiffs had to obtain to fulfill the contingency. Accordingly, it is defective because it omits two of the three statutory requirements.

The plaintiffs argue that a mortgage contingency clause is a condition precedent to a contract, not a term thereof, and therefore the statute of frauds is not applicable to it. Whatever merit this argument may have had prior to 1976 was nullified by passage of General Statutes § 49-5b. The legislative history of § 49-5b discloses that it was enacted expressly in response to a decision of the Appellate Division of the Court of Common Pleas holding that the mortgage contigency clause in the case before it was not sufficient to satisfy the statute of frauds. Furthermore, our Supreme Court has interpreted § 49-5b as “set[ting] forth minimum standards for satisfaction of the requirements of the statutes of frauds.” See Dart & Bogue v. Slosberg, 202 Conn. 566, 573, 522 A.2d 763 (1987); Maturo v. Scranton, 177 Conn. 569, 571 n.l, 418 A.2d 928 (1979).

In addition, the plaintiffs erroneously rely on Faloutico v. Maher, 182 Conn. 448, 438 A.2d 710 (1980). That case is inapposite because, as the Supreme Court noted in that decision, it was decided in reference to a contract that was executed prior to the effective date of § 49-5b. Id., 448 n.l.

The plaintiffs also argue that the legislature erroneously thought that the statute of frauds applied to conditions precedent and therefore mistakenly enacted § 49-5b. We may not elect to disregard a statute on the ground that if the legislature had a better understanding of the law, the statute would not have been passed. The legislature is presumed to know the existing state of law when it enacts a statute. Glastonbury Co. v. Gillies, 209 Conn. 175,181-82, 550 A.2d 8 (1988). Therefore, we apply a statute as its language directs. Breen v. Department of Liquor Control, 2 Conn. App. 628, 631, 481 A.2d 755 (1984).

The plaintiffs also contend that § 49-5b was enacted to protect buyers, not sellers, and thus they may waive its protection. The fallacy of this argument is that it does not recognize that the purpose of § 49-5b is to define, in part, the sufficiency of a memorandum that will satisfy the statute of frauds. The statute of frauds bars actions where there is not a sufficient memorandum in writing signed by the party to be charged. “In an action to enforce a contract for the sale of real property, the party to be charged, within the meaning of the statute, is the party against whom the contract is to be enforced.” Kasper v. Anderson, 5 Conn. App. 358, 362, 498 A.2d 132, cert. denied, 197 Conn. 818, 501 A.2d 388 (1985); 72 Am. Jur. 2d, Statute of Frauds § 364; 1 Restatement (Second), Contracts § 135, comment a. The defendants are the parties to be charged, and only they could waive the statute, not the plaintiffs.

The trial court properly granted summary judgment based on its conclusion that the contract for the sale of real property was unenforceable because it failed to meet the minimum requirements of the statute of frauds.

Summary judgment “shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book § 384. “Material fact” has frequently been defined as a fact that will make a difference in the result of the case. Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990); United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). The test for whether there is a material fact is whether a party would be entitled to a directed verdict on the same facts. State v. Goggin, 208 Conn. 606, 616, 546 A.2d 250 (1988). In this case, where the plaintiffs have failed to show that there is a contract for the sale of real estate that satisfies the statute of frauds, the defendants would be entitled to a directed verdict. The plaintiffs’ case is predicated entirely on a contract to sell real estate, which is unenforceable under the statutes of frauds. Whether there exist genuine issues of material fact involving any of the other special defenses is irrelevant because, regardless of their resolution, the contract is unenforceable and the defendants remain entitled to summary judgment in their favor.

Accordingly, we do not reach the plaintiffs other claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the Probate Court did not formally revoke Flanagan’s administration, the probate decree admitting the will to probate implicitly revoked and effectively terminated Flanagan’s intestate administration. Gaucher v. Estate of Camp, 167 Conn. 396, 400, 355 A.2d 303 (1974).

       General Statutes § 49-5b provides: “Any mortgage contingency clause included in a bond for deed or a written agreement for sale of real estate which conditions the purchaser’s performance on his obtaining a mortgage from a third party shall satisfy the provisions of section 52-550 if such mortgage contingency clause contains at least the following: (1) The principal amount in dollars of the loan the purchaser must obtain to fulfill such contingency; (2) the limit of the time period within which a commitment for such loan must be obtained, and (3) the term of the mortgage expressed in years.”

       The case, Schubert v. Gawe, Court of Common Pleas, Appellate Division, Docket No. CV 13-7201-7355 (January 20, 1975), cert. denied, 168 Conn. 652 (1975), is not officially reported.

      The urgency that the legislature attached to Public Acts 1976, No. 76-69, now General Statutes § 49-5b, is demonstrated by the fact that although it passed the House of Representatives on March 23, 1976, it took effect on April 21,1976, rather than the usual date of October 1,1976. See General Statutes § 2-3.

       The other special defenses were (1) that the plaintiffs’ specific performance claim was time barred by General Statutes § 47-33a, (2) that the contract was a nonbinding obligation, the performance of which became impractical in any event upon the admission of the will, and (3) that the plaintiffs themselves breached the agreement by their failure to perform in the manner required by it.


text:
    Americo Arduini, Administrator (Estate of Americo Arduini, Jr.) v. Automobile Insurance Company of Hartford, Connecticut
    (8810)
    Dupont, C. J., Foti and Lavery, Js.

      Argued October 2
    decision released December 11, 1990

      David M. Reilly, with whom was Robert W. Carangelo, for the appellant (plaintiff).

      Joseph A. La Bella, with whom, on the brief, was Eugene A. Cooney, for the appellee (defendant).
   Dupont, C. J.

The plaintiff appeals from the trial court’s denial of class certification pursuant to General Statutes §§ 42-110g and 42-llOh. The plaintiff claims that the trial court abused its discretion in denying class certification under General Statutes § 42-110g when it found that the prerequisites to class certification, as required by Practice Book §§87 and 88, were not met. The plaintiff also contends that the trial court abused its discretion in denying his motion to reconsider. We affirm the decision of the trial court.

These facts are relevant to the plaintiffs appeal. On December 23,1988, the plaintiffs decedent was involved in an accident that led to his death. His estate recovered the available liability coverage from the party at fault and then notified the defendant that the estate intended to claim uninsured motorist benefits under two policies of insurance issued by the defendant to Americo Arduini, Sr., administrator of the decedent’s estate.

The defendant, however, refused to pay the claim on the ground that an exclusion provision of the policy, which mirrors the wording of General Statutes § 38-175c (a) (1), applied because at the time of the accident the plaintiff’s decedent was in a car owned by the decedent but which, according to the defendant, was underinsured. The exclusion and statute provide in pertinent part that “[n]o insurer shall be required to provide uninsured motorist coverage to . . . any insured occupying an uninsured or underinsured motor vehicle . . . that is owned by such insured.” The plaintiff disputed the defendant’s assertion that this exclusion was applicable where the underinsured vehicle was not driven by the party at fault and brought suit.

The plaintiff brought his action in four counts. The first two counts essentially claimed breach of contract. The third count alleged a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b, and Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes § 38-61 (6) (a). The fourth count alleged a bad faith denial of coverage.

Pursuant to General Statutes §§ 42-1 lOg and 42-110h, the plaintiff moved to certify the third and fourth counts of his complaint as a class action. The plaintiff defined the potential class members as persons who have sustained injury or injuries resulting in death and who have submitted claims as “named insureds,” “family members” or “any covered person” under policies containing the exclusion. The plaintiff also sought certification for (1) a class of persons who have sustained injury or injuries resulting in death who do not yet know if the tortfeasor has sufficient insurance, but who would be covered persons under the defendant’s policies containing the disputed limitation, and (2) those persons who have not yet been injured but who would be covered persons under a policy issued by the defendant and containing the disputed limitation.

The trial court denied class certification and the plaintiff appealed from that ruling pursuant to General Statutes § 42-110h. The plaintiff thereafter moved for the trial court to reconsider its ruling on the denial of class certification. The court also denied this motion. The plaintiff then filed an amended appeal adding a claim that the trial court abused its discretion in denying his motion for reconsideration.

Before a class can be certified all the prerequisites to a class action set out in Practice Book § 87 must be met. This section provides that “[o]ne or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” If these threshold requirements are met, the trial court must then consider the case under Practice Book § 88, which provides that “[a]n action may be maintained as a class action if the prerequisites of Sec. 87 are satisfied and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Because these requirements are substantially similar to the requirements for class certification under Rule 23 of the Federal Rules of Civil Procedure, we look to federal case law as an aid to our construction of these requirements. See Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 553, 436 A.2d 266 (1980); Success Village Apartments, Inc. v. Local 376, 175 Conn. 165, 168, 397 A.2d 85 (1978).

The plaintiff bears the heavy burden of establishing that each requirement of the rule is met. McKeman v. United Technologies Corporation, 120 F.R.D. 452, 453 (D. Conn. 1988). Although a trial court must undertake a rigorous analysis to determine whether the plaintiff has borne this burden successfully; General Telephone Co. of Southwest v. Falcon, 457 U.S. 147,161, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982); it has broad discretion in determining whether a suit should proceed as a class action. Califano v. Yamasaki, 442 U.S. 682, 703, 99 S. Ct. 2545, 61 L. Ed. 2d 176 (1979); Andrews v. Bechtel Power Corporation, 780 F.2d 124, 130 (1st Cir. 1985); Fink v. National Savings & Trust Co., 772 F.2d 951, 960 (D.C. Cir. 1985). Our review is confined to determining whether the trial court abused its discretion. Fink v. National Savings & Trust Co., supra.

There is no “magic number” that automatically fulfills the numerosity requirement of the rule; Flowers v. Webb, 575 F. Sup. 1450, 1458 (E.D. N.Y. 1983); because numerosity is tied to the impracticality of joinder under the particular circumstances of the case. 3B J. Moore, Federal Practice (2d Ed.) ¶ 23.05. A conclusory allegation that joinder is impractical, or speculation about the size of the class, will not suffice to meet the requirement. Marcial v. Coronet Ins. Co., 122 F.R.D. 529, 531 (N.D. Ill. 1988). Failure to satisfy the numerosity requirement is sufficient ground for denying class certification. Id.

Here, the trial court found that the potential class of present claimants was limited to ten or ppssibly eleven similarly situated persons. It noted that such numbers are usually amenable to joinder and, therefore, too small for certification as a class. See, e.g., Richardson v. Coopers & Lybrand, 82 F.R.D. 335, 338 (D. D.C. 1978); Muntz v. Ohio Screw Products, 61 F.R.D. 396, 399 (N.D. Ohio 1973); Turna v. American Can Co., 367 F. Sup. 1178, 1189 (D. N.J. 1973). The plaintiff argues that a class of this size is nevertheless appropriate for class certification because the court denied, without decision, a motion to consolidate a case involving the same claims with the present case. The plaintiff, thus, argues that the denial of the motion was equivalent to a finding by the court that joinder was impractical, and that, therefore, certification is proper. The court’s denial, however, may have been rendered on many other grounds unrelated to impracticability of joinder and that denial in one instance would not necessarily prevent joinder of other cases with this case.

The plaintiffs failure to meet the numerosity requirement of Practice Book § 87 is dispositive of the appeal because the failure to meet any one of the prerequisites of the rules of practice requires a denial of class certification.

. The plaintiff based his motion for reconsideration of the trial court’s denial of class certification on the discovery of one additional potential class member. The plaintiff claimed that the belated revelation of the potential class member’s claim indicated that the defendant’s disclosure was suspect, and that the class should be certified to protect the rights of class members as yet unknown. The plaintiff, however, gives no firm indication that unknown class members exist in such numbers that joinder of their claims would be impracticable nor did the trial court find the defendant’s compliance with discovery inadequate. Allegations of numerosity based on speculation do not meet the requirements of § 87. Marcial v. Coronet Ins. Co., supra; Richardson v. Coopers & Lybrand, supra.

The trial court, therefore, did not abuse its discretion in denying the plaintiff’s motion for reconsideration or in denying the plaintiff’s original motion for class certification.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 42-110g is a section of chapter 735a entitled Unfair Trade Practices.
      Section 42-110g (b) provides: “Persons entitled to bring an action under subsection (a) of this section may, pursuant to rules established by the judges of the superior court, bring a class action on behalf of themselves and other persons similarly situated who are residents of this state or injured in this state to recover damages.”
      General Statutes § 42-110h provides: “class actions. As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subsection may be conditional, and it may be amended before decision on the merits. An order issued under this section shall be immediately appealable by either party.”

       After the filing of the plaintiff’s action, the defendant brought a separate declaratory judgment action in order to determine its rights and obligations under policies containing this exclusion. That action was dismissed based on the prior pending action doctrine, and the defendant appealed the dismissal. The defendant subsequently withdrew that appeal.

       Rule 23 of the Federal Rules of Civil Procedure provides in pertinent part: “(a) prerequisites to a class action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.”

       The trial court had two additional grounds for denying class certification. First, the court held that a class action would not be the most efficient method of adjudicating this controversy because a number of class members were already engaged in litigation. Second, the court found that the plaintiff, as administrator of an estate, would not be an appropriate class representative.