author: Freedman, J.

text:
    Town of Voluntown v. Julius Rytman et al.
    (10332)
    Dupont, C. J., Heiman and Freedman, Js.

      Argued March 23
    decision released May 12, 1992

      Donald R. Beebe, with whom was Thomas W. Norton, for the appellant (named defendant).

      Richard J. Duda, for the appellee (plaintiff).

      Joseph J. Cassidy, for the appellee (defendant Connecticut National Bank).
   Freedman, J.

The defendant Julius Rytman appeals from a judgment of foreclosure by sale rendered against him with respect to a certain piece of property located in the town of Voluntown. Rytman claims that the trial court improperly (1) refused to order a sale of a portion of the subject property to satisfy his debt to the plaintiff, (2) prohibited him from presenting evidence concerning the standing of one of the other defendants, a subsequent encumbrancer of the property in question, (3) refused to permit him to present evidence concerning certain paragraphs of the plaintiffs complaint, (4) denied his motion to stay this foreclosure action pending the outcome of other litigation, (5) permitted two other defendants to participate in this matter after both had been defaulted for failure to disclose a defense, and (6) entered a default against him for failure to disclose a defense when in fact he had disclosed defenses. We affirm the judgment of the trial court.

The following facts are pertinent to the disposition of this appeal. Rytman owns a certain 9.98 acre parcel of land in Voluntown on which he operated a poultry farm. In 1988, the town of Voluntown instituted this action to foreclose various tax liens it held against this property dating back to 1984. The plaintiffs complaint named as defendants Rytman and various subsequent encumbrancers of the property, including Connecticut National Bank (CNB) and Colchester Foods, Inc. (CFI). CNB’s lien against Rytman’s property stemmed from a five million dollar blanket mortgage that Rytman had given for property he owned, including the parcel in question. CFI’s lien derived from a lis pendens it had placed on the property in 1987, with respect to a financing statement securing equipment and fixtures, as well as a mortgage and a mortgage modification, both in the original amount of $500,000.

Rytman filed an answer and raised four special defenses to the plaintiffs complaint. All of the other defendants, including CNB and CFI, were defaulted, either for a failure to appear or for a failure to disclose defenses. The matter was tried to the court on May 21 and 22, 1991. Evidence was presented that certain of the junior liens had been released, but that at least four of the liens remained on the property. On May 29,1991, the court rendered judgment for the plaintiff, in which it found the debt due the plaintiff to be $20,046.87 and awarded the plaintiff $5500 in attorney’s fees, an appraisal fee of $1000 and a title search fee of $200. The court valued the subject property at $220,000 and rendered a judgment of foreclosure by sale, which was to take place on July 13, 1991. Rytman has timely appealed the judgment of the trial court, thereby effecting an automatic stay of proceedings.

I

Rytman argues that the trial court improperly denied his motion for foreclosure by sale of only a portion of the property. At trial, Rytman presented evidence that the value of a certain two acre parcel, being a portion of the premises, was approximately $40,000. He also presented a witness who testified that he would bid up to $44,000 for that portion. Rytman claims that because the plaintiff’s lien was approximately $20,000, a sale of this portion would cover not only the outstanding amount due, but also all reasonable costs associated therewith.

The trial court has discretion, under General Statutes § 49-25, to order a sale of a portion of the property. Voluntown v. Rytman, 21 Conn. App. 275, 281, 573 A.2d 336, cert. denied, 215 Conn. 818, 576 A.2d 548 (1990). A trial court does not, however, abuse its discretion by refusing to order a sale of a portion of the property when there are other encumbrancers who have liens on the entire premises. Id. In addition to CFI and CNB, the record indicates that the state of Connecticut holds a $15,690 lien on the property and Hanson Industries holds a $175,000 lien on the property. Both of the latter encumbrances cover the entire premises, and the record does not disclose that either lien has been released. “ ‘In a foreclosure proceeding the trial court must exercise its discretion and equitable powers with fairness not only to the foreclosing mortgagee, but also to subsequent encumbrancers and the owner.’ Fidelity Trust Co. v. Irick, 206 Conn. 484, 490, 538 A.2d 1027 (1985).” Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 355, 579 A.2d 1054 (1990). Here, where there are several subsequent encumbrancers in addition to CNB and CFI, who had encumbrances on the entire premises, “it would [be] unfair to permit a sale of a portion of the encumbered premises, free of the succeeding encumbrances, because it would involuntarily reduce the security interest of those encumbrancers and force them to settle for less than what they had bargained for.” Voluntown v. Rytman, supra.

A judgment of strict foreclosure would have given the plaintiff a windfall of approximately $200,000 had none of the other encumbrancers invoked their right of redemption. A judgment of foreclosure by sale of a portion would have involuntarily reduced the security of the subsequent encumbrancers. On the other hand, a judgment of foreclosure by sale of the entire parcel would enable the plaintiff to receive the amount to which it is entitled, and have nearly $200,000 remaining to pay other encumbrancers or Rytman himself. We conclude, therefore, that the trial court did not abuse its discretion when it refused to order a foreclosure by sale of a portion of the property.

II

Rytman’s next two claims are interrelated, and may be addressed together. Rytman claims that the trial court improperly precluded him from presenting evidence regarding the standing of CFI in this matter, and improperly refused to permit him to present evidence concerning certain paragraphs in the plaintiffs complaint, which pleaded the existence of CNB’s and CFI’s recorded liens on this property. In essence, Rytman sought to litigate in the plaintiffs foreclosure action the validity of these two subsequent encumbrances prior to the entry of a judgment of foreclosure. Ryt-man suggests that this cross litigation between defendants was necessary because, if their liens were proven invalid, the trial court could order a foreclosure by sale of only a portion of his property to satisfy the plaintiff’s lien.

Rytman’s claims are misguided for several reasons. First, the sole questions initially before the trial court in this action were whether Rytman owed the town for previously assessed property taxes, the amount outstanding, and whether that amount due was secured by a lien on the subject property. The town, in an action to foreclose municipal tax liens, is required to allege and prove only that the defendant owned the subject property when the property went onto the tax list, or when the assessment in question was made; that the assessment was duly and properly assessed on the property and became due and payable; that thereafter a lien for the amount of taxes due was filed and recorded in the land records; that the amount due remains outstanding; and that there existed other encumbrances of record. Practice Book § 187. The validity of subsequent encumbrances, therefore, is irrelevant to the determination of those issues, and, thus, the trial court properly precluded Rytman from litigating them in this proceeding.

Second, Rytman’s claims are premised on his belief that the invalidity of CNB’s and CFI’s liens is relevant to the trial court’s determination of the type of foreclosure judgment it will render. It has been held, however, that when the value of the property substantially exceeds the value of the lien being foreclosed, the trial court abuses its discretion when it refuses to order a foreclosure by sale. Fidelity Trust Co. v. Irick, supra, 488-89; Connecticut Savings Bank v. Burger, 23 Conn. App. 192, 196, 579 A.2d 1097 (1990). Here, the debt owed to the plaintiff by Rytman was approximately $20,000. The trial court found that the value of the property was $220,000. Because the value of the property far exceeded the plaintiff’s lien, substantial equity existed in the property beyond the debt owed to the plaintiff and the trial court properly ordered a foreclosure by sale. See, e.g. Fidelity Trust Co. v. Irick, supra; Connecticut Savings Bank v. Burger, supra.

Finally, Rytman suggests that because the plaintiff pleaded in its complaint the existence of these two liens, he should be allowed to prove their invalidity. Again, the plaintiff misses the point. Practice Book §§ 186 and 187 require that a complaint seeking the foreclosure of a mortgage or tax lien on real estate shall set forth, in addition to the other essentials of the complaint, “[a]ll encumbrances of record upon the property both prior and subsequent to the encumbrance sought to be foreclosed, the dates of such encumbrances, the amount of each and the date when such encumbrance was recorded . . . .” Those sections require the plaintiff to allege the mere existence of other encumbrances, but they do not require the plaintiff to prove the validity of each such other encumbrance in order to entitle it to a judgment of foreclosure. Pursuant to General Statutes § 49-27, entitlement to proceeds of the sale, and the amount of such entitlements, is to be determined by the court in a supplemental proceeding after the sale has been ratified by the court. “The decree of foreclosure by sale should not adjudicate the rights of the parties to the funds realized; those rights should be determined by way of a supplemental judgment. City National Bank v. Stoeckel, 103 Conn. 732, 744, 132 A. 20 [1926].” Gault v. Bacon, 142 Conn. 200, 203, 113 A.2d 145 (1955). “[A] foreclosure by sale furnishes conflicting claimants an ideal forum for litigating their differences without prejudicing prior encumbrancers. Clearly, a resolution of such issues provides the very raison d’etre of supplemental judgment proceedings. Payment may thus be made to the extent there is no controversy, and the clerk of the court holds the remaining funds pending a resolution of the contested claims.” D. Caron, Connecticut Foreclosures (2d Ed.) § 8.02B, p. 132.

We conclude that the trial court correctly refused to permit Rytman to litigate the validity of subsequent encumbrances in this proceeding.

Ill

Rytman next claims that the trial court improperly refused to stay this foreclosure action pending the outcome of a separate action brought by Rytman against CNB. That action concerned the $5,000,000 note underlying CNB’s junior encumbrance. “ ‘In the absence of a statutory mandate, the granting of an application or a motion for a stay of an action or proceeding is addressed to the discretion of the trial court, and its action in granting or denying application will not be disturbed by an appellate court unless that discretion has been abused.’ ” Voluntown v. Rytman, supra, 287. Considering the fact that granting a stay would act to the detriment of junior encumbrancers because interest would run in favor of senior encumbrances, and considering as well the fact that the validity of CNB’s encumbrance is not involved with the question of whether the plaintiff in this action is entitled to foreclose its lien, we cannot say that the trial court abused its discretion in refusing to stay this matter.

IV

Rytman also claims that the trial court improperly permitted CNB and CFI to participate in the proceedings after they had been defaulted for failure to disclose a defense. “A default admits the material facts that constitute a cause of action . . . and ‘entry of default, when appropriately made, conclusively determines the liability of a defendant.’ Ratner v. Willametz, 9 Conn. App. 565, 579, 520 A.2d 621 (1987).” (Citations omitted.) Skyler Limited Partnership v. S.P. Douthett & Co., 18 Conn. App. 245, 253, 557 A.2d 927 (1989). Neither CFI nor CNB participated in the portion of the proceedings wherein the plaintiff established Rytman’s liability. Once the plaintiff established Rytman’s liability, the court was required to determine whether the foreclosure was to be strict or by sale, and, just as in civil cases where defaulted parties are entitled to participate in a hearing on the issue of damages, defaulted parties in foreclosure proceedings are permitted to participate in the determination of the type of foreclosure judgment to be rendered. CFI and CNB, therefore, were entitled to participate in any proceedings concerning the type of foreclosure judgment to be entered and the value of the subject property. Their participation in this matter was limited to these issues, and we therefore conclude that the trial court did not improperly permit them to participate in this matter.

V

Rytman’s final claim is that the trial court, in its notice of entry of judgment, improperly indicated that all appearing defendants had been defaulted for failure to disclose a defense. We agree that this indication is inaccurate because in fact Rytman presented four special defenses and a trial was held in which those defenses were considered. The trial court, however, sent to all parties a corrected notice of entry of judgment in which it is clearly stated that Rytman was not defaulted for failure to disclose a defense. Rytman’s claim, therefore, has no merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 187 provides: “In any action to foreclose a municipal tax or assessment lien the plaintiff need only allege and prove: (1) The ownership of the liened premises on the date when the same went into the tax list, or when said assessment was made; (2) that thereafter a tax in the amount specified in the list, or such assessment in the amount made, was duly and properly assessed upon the property and became due and payable; (3) (to be used only in cases where the lien has been continued by certificate) that thereafter a certificate of lien for the amount thereof was duly and properly filed and recorded in the land records of the said town on the date stated; (4) that no part of the same has been paid; and (5) other encumbrances as required by the preceding section. ...”

       General Statutes § 49-27 provides in pertinent part: “The proceeds of each such sale shall be brought into court, there to be applied if the sale is ratified, in accordance with the provisions of a supplemental judgment then to be rendered in the cause, specifying the parties who are entitled to the same and the amount to which each is entitled. ...”


source: Caselaw Access Project

author: Lavery, J.

license: Public Domain

text:
    State of Connecticut v. Thomas Boykin
    (9653)
    Dupont, C. J., Foti and Laveky, Js.

      Argued January 8
    decision released May 19, 1992

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

      Paul J. Ferencek, 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).
   Lavery, J.

The defendant, Thomas Boykin, was charged by information with aiding another person to engage in the sale of narcotics in violation of General Statutes §§ 53U-8 and 21a-278 (b), and conspiracy to sell narcotics in violation of General Statutes §§ 53a-48 (a)* * and 21a-278 (b). A jury convicted the defendant on both counts and he was sentenced to concurrent fourteen year prison terms suspended after ten years with three years probation. In this appeal, the defendant claims that the trial court improperly (1) failed to grant a motion for judgment of acquittal on both the conspiracy and accessory counts, (2) instructed the jury on the overt act element of the conspiracy charge, and (3) instructed the jury that a reasonable doubt was not a doubt raised by ingenuity of counsel. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On June 2,1989, the New Haven police department received a complaint that drug dealing was taking place on Arthur Street, a narrow one-way street. Evelyn Harris complained that drugs were being sold in front of 37 Arthur Street, directly across the street from her house. In response to the complaint, Officers Sam Cotto and Vincent Riccio drove a marked patrol car past 37 Arthur Street at about 9:30 p.m. The officers observed Arnold Green and the defendant at that location. Green was sitting on a milk crate in the driveway near the street, and the defendant was five to fifteen feet away from him pacing back and forth, looking up and down the street. The officers drove by and observed Green and the defendant conversing. Cotto and Riccio decided to conduct a surveillance from inside the Harris house to see if Green and the defendant were, in fact, selling drugs. They told two backup officers, Marvin Marable and Michael Quinn, of their plan and then entered the Harris house through a rear door. They set up surveillance from a front room window facing 37 Arthur Street. Through the window, Cotto and Riccio had an unobstructed view from a distance of fifty feet. The area was lighted by a street light in front of 37 Arthur Street.

The officers observed three transactions within forty-five minutes. The first involved a black man who approached Green and engaged in a brief conversation with him. Green got off the crate, walked to nearby bushes, retrieved a blue packet and handed the item to the man in exchange for money. The unidentified man walked away.

The second transaction occurred when a black or Hispanic man approached Green. Green went to the same bush, retrieved a blue packet and gave it to the man in exchange for money. The defendant was with Green during the transaction and took the money from Green and placed it in his pocket. The unidentified purchaser left.

After they observed the two transactions, the officers decided to arrest Green and the defendant. They radioed officers Michael Quinn and James Carter, provided a description of the two suspects and told the officers to position themselves for an arrest. They then radioed Marable in another vehicle and asked him to drive his marked police vehicle past 37 Arthur Street so they could gauge the suspects’ reactions, and ascertain their escape route. When Marable’s cruiser entered Arthur Street, the defendant immediately shouted to Green. Green got off the crate, grabbed an object from behind the bush and ran to the rear of the house. Once Marable’s vehicle had left Arthur Street, the defendant shouted something to Green, who reappeared and again sat on the crate.

When Green returned from the rear of the house, an Hispanic female approached him and spoke with him in the defendant’s presence. Green again went to the rear of the house. While Green was in the rear of the house, the defendant and the unidentified female continued their conversation. Green came back with a blue packet which he gave to the female in exchange for money. Again Green handed the money to the defendant who placed it in his pocket. The female left.

At this point, Cotto and Riccio radioed to the other officers to move in for the arrest. Cotto and Riccio then left the Harris house through the back door and ran to the street, where they arrested Green. The defendant immediately walked up Arthur Street in a northern direction, where he was seized by Quinn and Carter. After Cotto identified the defendant, he was placed under arrest. The officers searched both Green and the defendant. Green had $115, and the defendant had $35.

Marable searched the rear of 37 Arthur Street where Green had gone with the object he had taken from behind the bush. Near some trash, Marable found a clear plastic bag containing fifty blue glassine envelopes filled with a white powdery substance. He subsequently handed the bag to Cotto. A field test and a later laboratory test revealed that each of the packets contained cocaine.

I

Sufficiency of the Evidence

The defendant first claims that the trial court improperly denied his motion for judgment of acquittal on both the conspiracy and the accessory charges. The insufficiency of the evidence claims can be divided into three parts: (1) the state failed to prove an agreement between Green and the defendant; (2) the state failed to prove the commission of an overt act in furtherance of the conspiracy subsequent to the formation of the alleged agreement; and (3) the state failed to prove that the defendant had the requisite specific intent (a) to conspire with Green to sell cocaine, (b) to aid Green in that venture, and (c) to commit the substantive crime of selling cocaine.

We utilize a two-part analysis when reviewing a challenge to the sufficiency of evidence. State v. Henning, 220 Conn. 417, 420, 599 A.2d 1065 (1991); State v. Bewry, 26 Conn. App. 242, 245, 600 A.2d 787 (1991), cert. denied, 221 Conn. 911, 602 A.2d 11 (1992). First, we review the evidence in the light most favorable to sustaining the verdict. State v. Henning, supra. We then determine whether, on the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence establishes guilt beyond a reasonable doubt. Id. In the review process, the probative force of the evidence is not diminished if it consists in whole or part of evidence that is circumstantial rather than direct. Id., 420-21; State v. Montanez, 219 Conn. 16, 19-20, 592 A.2d 149 (1991).

“ ‘[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt “does not require a court to ask ‘itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt.’ ” (Emphasis in original.) (Citation omitted.) Jackson v. Virginia, [443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).] “Instead, 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. See Johnson v. Louisiana, 406 U.S. [356, 362, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972)]. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the fact-finder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon ‘jury’ discretion only to the extent necessary to guarantee the fundamental protection of due process of law.” (Emphasis in original.) (Footnotes omitted.) Jackson v. Virginia, supra, 319.’ State v. Scielzo, 190 Conn. 191,197-98, 460 A.2d 951 (1983).” State v. Stellato, 10 Conn. App. 447, 452, 523 A.2d 1345 (1987).

A

The defendant first asserts that the state failed to prove the existence of an agreement, which is a necessary element in the crime of conspiracy. 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, supra, 453. Indeed, a conspiracy can be inferred from the conduct of the accused. State v. Lynch, supra, 400.

Finally, “[t]he size of a defendant’s role does not determine whether that person may be convicted of conspiracy charges. Rather, what is important is whether the defendant willfully participated in the activities of the conspiracy with knowledge of its illegal ends.” United States v. Vanwort, 887 F.2d 375, 386 (2d Cir. 1989), cert. denied sub nom. Chapoteau v. United States, 495 U.S. 906, 110 S. Ct. 1927, 109 L. Ed. 2d 290 (1990). Participation in a single act in furtherance of the conspiracy is enough to sustain a finding of knowing participation. Id.; United States v. Zabare, 871 F.2d 282, 287 (2d Cir.), cert. denied, 493 U.S. 856, 110 S. Ct. 161, 107 L. Ed. 2d 119 (1989).

Cotto and Riccio observed the defendant and Green for forty-five minutes. They observed the defendant pacing about Arthur Street within five to fifteen feet of where Green was sitting on a milk crate selling cocaine. The defendant appeared to be keeping watch. The defendant often conversed with Green. The officers testified that in their opinions the defendant was acting as a lookout During two of the three cocaine sales, the defendant was with Green, talked with one of the purchasers and accepted the cash handed to him by Green immediately after those two cocaine sales. When Marable drove past the scene, the defendant shouted to Green. Green immediately got off the crate, took something from behind the bush where he had previously obtained the cocaine, and went behind 37 Arthur Street. After Marable was out of sight, the defendant shouted to Green, who reappeared from behind the building, took his position on the crate and continued to sell cocaine. Riccio testified that each packet of cocaine was worth $20 on the street. The defendant took cash from Green after two sales and had $35 in his possession.

From this evidence, the jury could have reasonably and logically inferred that the defendant and Green had agreed to work in concert to commit the crime of selling cocaine. The defendant’s close proximity to Green throughout the surveillance, coupled with his frequent conversations with Green, support the inference that the defendant associated himself with the venture in some fashion, participated in it as though it was something he wanted to bring about or sought by his actions to make succeed. The defendant’s actions of monitoring the scene, conversing with both Green and one of the drug purchasers, taking cash from Green immediately following the second and third transactions, and warning Green of Marable’s cruiser coming and going support the inference that he and Green were partners in the crime. United States v. Martino, 759 F.2d 998, 1002-1003 (2d Cir. 1985); see State v. Cavanaugh, 23 Conn. App. 667, 674, 583 A.2d 1311 (1990), cert. denied, 220 Conn. 930, 598 A.2d 1100 (1991) (coconspirator’s action of immediately going to the defendant and turning over cash from drug deal supports the jury’s conclusion that both persons had agreed to work in concert to sell drugs); see also United States v. Rodriguez, 702 F.2d 38, 41 (2d Cir. 1983) (evidence that the defendant was present at drug scene, spent thirty to forty-five minutes walking up and down the block past vehicles where drug transactions occurred, conversed with some of the persons involved in the transactions and fled immediately after an arrest occurred was sufficient to sustain drug conspiracy conviction). We conclude, considering the evidence in total, that it was more than sufficient to support the jury’s conclusion that the defendant and Green had entered into a mutual plan to sell cocaine.

B

The defendant next claims that there was insufficient evidence to prove any overt act subsequent to the formation of the alleged agreement. A review of the transcripts and exhibits, however, shows that there was sufficient evidence to prove the three sales transactions. This is more fully discussed in part II, infra.

C

The defendant also claims that on both the accessory charge and the conspiracy charge there was insufficient evidence from which the jury could reasonably infer the defendant’s intent. In order to obtain convictions on the conspiracy and the accessory charges, the state had to prove (l)that the defendant intentionally entered into an agreement with Green to sell cocaine, (2) that the defendant intended to help Green sell cocaine, and (3) that the defendant intended to commit the crime of selling cocaine.

“Conspiracy is a specific intent crime, with the intent divided into two elements: (a) the intent to agree or conspire and (b) the intent to commit the offense which is the object of the conspiracy. ... To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also that they intended to commit the elements of the offense.” (Internal quotation marks omitted.) State v. Beccia, 199 Conn. 1, 3-4, 505 A.2d 683 (1986). “The accessory statute, § 53-8, sets forth the element of intent as a twofold requirement: that the accessory have the intent to aid the principal and that in so aiding he intended to commit the offense with which he is charged. . . .” (Citations omitted; internal quotation marks omitted.) State v. Crump, 201 Conn. 489, 495, 518 A.2d 378 (1986).

“The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proved by circumstantial evidence . . . and is, except in rare cases, a question of fact. . . . Intention is a mental process which, of necessity, must be proven either by the statements or the actions of the person whose conduct is being examined. . . . Where there is sufficient evidence to support a reasonable inference that the defendant intended to commit the crime charged, whether such an inference should be drawn is properly a question for the jury to decide.” (Citations omitted; internal quotation marks omitted.) State v. Williams, 202 Conn. 349, 356-57, 521 A.2d 150 (1987).

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, as the trier of fact, could not reasonably have concluded as it did. That is, that the defendant intentionally entered into an agreement with Green to sell cocaine, that the defendant intentionally helped Green sell cocaine, and that the defendant had the intention to commit the crime of selling cocaine.

There was evidence that the defendant monitored the crime scene, conversed with Green prior to each of the drug transactions, conversed with the purchaser during the third sale, took money from Green following the two sales, warned Green when Marable drove down the street and shouted to Green when Marable’s car left the street. These facts together with all the facts set forth previously in this opinion were more than sufficient evidence for the jury to infer the requisite intention required by the conspiracy, aiding and abetting and drug selling statutes.

II

The Conspiracy Charge

The defendant claims that the trial court improperly charged the jury on the overt act element of the crime of conspiracy in that it did not charge that the overt act must take place after the agreement had been formed. The defendant also challenges the trial court’s submission to the jury of Green’s possession of the cocaine as an overt act, because there was no evidence to show that Green was not in possession of the cocaine prior to any agreement between Green and the defendant. There was neither a request to charge nor an exception taken to the judge’s charge on these points, and the defendant seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

The challenged portion of the charge is as follows: “The third element of the crime the state must prove beyond a reasonable doubt is that one of the two alleged conspirators, either the defendant or Mr. Green, did an overt act in pursuance of the conspiracy. It does not matter which one of the alleged coconspirators did the overt act. It need not be the defendant. An overt act is an open act which is done in pursuance of a design or which is a manifestation of a design or an intent. It is an act specifically intended to carry out the actor’s unlawful intent to conspire to commit the crime. In this case the state claims that the overt act was the actual sale of cocaine to one or more persons. The state claims that Arnold Green’s possession of cocaine was an overt act.”

Both of the defendant’s claims fail to satisfy the third condition of State v. Golding, supra, because the alleged constitutional violation does not clearly exist and the defendant was not clearly deprived of a fair trial. The court’s instruction was proper and did not result in a deprivation of any constitutional right. Viewing the charge as a whole, it is not reasonably possible that the jury was misled to believe that it could find an overt act based on the determination that Green possessed cocaine prior to forming an agreement with the defendant to sell cocaine. The overt act must be “a subsequent independent act” that follows the formation of a conspiracy. 15A C.J.S. Conspiracy § 43 (2), p. 748. The court described the overt act as one that “is done in pursuance of a design or which is a manifestation of a design or an intent and which specifically intends to carry out the actor’s unlawful intent to conspire to commit the crime.” The court went on to charge the jury that it could convict the defendant if it found beyond a reasonable doubt that (1) the defendant intended to sell cocaine, (2) he agreed with Green to do so, and (3) one of them committed an overt act in pursuance of the conspiracy. “Pursuance” is defined as the act of pursuing, a carrying out or into effect. Webster, Third New International Dictionary. A common sense reading of these instructions plainly indicates that the overt act must occur subsequent to the agreement underlying the conspiracy. It is impossible to pursue something that does not exist.

The defendant also claims that the court improperly instructed the jury that Green’s possession of cocaine was an overt act that followed the making of the agreement. The defendant claims that there was no evidence that showed that Green came into possession of the cocaine subsequent to the making of any agreement and cites as his authority United States v. Easom, 569 F.2d 457, 459 (8th Cir. 1978). We disagree. The court charged that the jury could find as an overt act Green’s sale of cocaine to one or more persons and Green’s possession of cocaine.

The law on overt act charges was set forth in United States v. Sellers, 603 F.2d 53, 56 (8th Cir. 1979), vacated in part on other grounds, 447 U.S. 932, 100 S. Ct. 3033, 65 L. Ed. 2d 1127 (1980), modified, 628 F.2d 1085 (8th Cir. 1980). “In a conspiracy prosecution, the government is not limited to proof of only those overt acts charged in the indictment and in fact need not prove every overt act alleged. United States v. Harris, 542 F.2d 1283, 1300 (7th Cir. 1976), cert. denied, 430 U.S. 934, 97 S. Ct. 1558, 51 L. Ed. 2d 779 (1977); United States v. Adamo, 534 F.2d 31, 38 (3rd Cir.), cert. denied, 429 U.S. 841, 97 S. Ct. 116, 50 L. Ed. 2d 110 (1976). In addition, if an alleged overt act has not been proved, its submission to the jury is harmless error when the jury is presented with other overt acts in furtherance of the conspiracy which were sufficiently supported by the evidence. United States v. Bletterman, 279 F.2d 320, 322 (2d Cir. 1960); Giardano v. United States, 251 F.2d 109, 115 (8th Cir.), cert. denied, 356 U.S. 973, 78 S. Ct. 1136, 2 L. Ed. 2d 1147 (1958).” United States v. Sellers, supra.

In this case, there was sufficient evidence of sales of cocaine to go to the jury as overt acts.

Ill

The Reasonable Doubt Charge

The defendant’s last claim is that the trial court improperly charged the jury on reasonable doubt by defining it as follows. “A reasonable doubt is not a doubt raised by one who questions for the sake of raising a doubt. A reasonable doubt is not a surmise or speculation or conjecture or an imaginary doubt. A reasonable doubt is not a captious or frivolous doubt nor is it a doubt raised by the ingenuity of counsel or by a juror and unwarranted by the evidence; nor is it a doubt prompted by sympathy for the defendant.” (Emphasis added.)

The defendant did not seek a written request to charge on reasonable doubt nor did he take an exception to the court’s charge as given; Practice Book § 852; and again seeks review under State v. Golding, supra.

Similar charges were found not to be of constitutional dimension and were upheld in State v. Jeffrey, 220 Conn. 698, 719, 601 A.2d 993 (1991); State v. Harvey, 27 Conn. App. 171, 193-94, 605 A.2d 563 (1992); State v. Smith, 26 Conn. App. 279, 280-82, 600 A.2d 1036 (1991); State v. Falcon, 26 Conn. App. 259, 269-71, 600 A.2d 1364 (1991), cert. denied, 221 Conn. 911, 602 A.2d 10 (1992); State v. Turner, 24 Conn. App. 264, 273-75, 587 A.2d 1050, cert. denied, 218 Conn. 910, 591 A.2d 812 (1991).

We decline to review this claim further because no clear constitutional violation exists. State v. Thomas, 214 Conn. 118, 120, 570 A.2d 1123 (1990).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-8 provides: “criminal liability for acts of another. A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

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

       General Statutes § 53a-48 provides in pertinent part: “conspiracy, renunciation, (a) 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. ...”

       See footnote 3, supra.

       “[A] reviewing court must view pieces of evidence not in isolation, but in conjunction. United States v. Young, 745 F.2d 733, 762 (2d Cir. 1984), cert. denied, 470 U.S. 1084,105 S. Ct. 1842, 85 L. Ed. 2d 142 (1985). Viewing the evidence in conjunction is especially important in a conspiracy case . . . where so much of the evidence is not incriminating on its face and the jury, to infer the existence of a conspiracy, must piece together circumstantial evidence.” United States v. Casamento, 887 F.2d 1141, 1156 (2d Cir. 1989), cert. denied, 493 U.S. 1081, 110 S. Ct. 1138, 107 L. Ed. 2d 1043 (1990).

       A defendant “can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The conditions as set forth in State v. Golding, supra, need not be considered in any particular order. State v. Shaw, 24 Conn. App. 493, 497, 589 A.2d 880 (1991).

       The defendant’s reliance on Easom is misplaced. In that case, the court held that it was error to instruct a jury that they could base a finding of conspiracy in part on an overt act which was committed before the existence of the conspiracy. That is not true of this case.

       “Obviously, where more than one overt act has been committed by any one of the alleged conspirators at any time during the course of the conspiracy, the state can, if it chooses, allege each of such acts and stand on proof of only one. The court would, of course, be obliged to charge a jury that only one of such alleged acts need be proved, together with the agreement to conspire, in order to establish the conspiracy. It is immaterial which coconspirator commits an overt act; each of them is equally bound by the overt act or acts of the others.” State v. Miekolyzck, 35 Conn. Sup. 96, 98, 397 A.2d 538 (1978).


author: Norcott, J. Landau, J.,

text:
    Middlesex Insurance Company v. James J. Quinn III et al.
    (10356)
    Norcott, Landau and Heiman, Js.
    Argued February 18
    decision released May 19, 1992

      John F. Wynne, Jr., for the appellant (named defendant).

      Frederick M. Vollono, for the appellee (plaintiff).

      Stewart M. Casper and Joseph N. Varon filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.
   Norcott, J.

This appeal presents the narrow issue of whether an automobile insurer can exclude from uninsured motorist coverage a family member who lives in the insured’s household and owns a vehicle not covered by the insured’s policy. Under the circumstances of this case, we conclude that it may do so.

The named defendant, James J. Quinn III, appeals from the trial court’s decision vacating an arbitration panel’s award in his favor and denying his application to confirm it. The defendant claims that the court improperly found that he is not entitled to uninsured motorist benefits because he is not a covered person as defined in the policy, and was not operating a vehicle covered by the policy at the time he was involved in a two car collision. We affirm the judgment of the trial court.

The following facts are undisputed. On February 12, 1984, while driving a car he owned, the defendant was injured in a collision in New Haven. The defendant recovered $20,000 from the tortfeasor, the full amount of liability insurance available. The defendant’s car was insured for $100,000 bodily injury liability and $20,000 uninsured motorist coverage.

At the time of the collision, the defendant lived with his father, whom the plaintiff insured under two automobile liability policies covering five vehicles. Each of these vehicles was insured for $20,000 in uninsured motorist coverage. The defendant sought to aggregate these amounts and to collect $100,000 from the plaintiff. When the plaintiff denied coverage and refused to arbitrate the dispute, the defendant sought an order compelling arbitration. The trial court, Purtill, J., issued such an order, which this court subsequently upheld. See Quinn v. Middlesex Ins. Co., 16 Conn. App. 209, 547 A.2d 95, cert. denied, 209 Conn. 817, 550 A.2d 1085 (1988).

On February 1,1991, the arbitration panel, in a two to one decision, awarded the defendant $83,333, with the plaintiff receiving $16,666.67 credit for the amount the tortfeasor had paid. The majority found that the policy’s definition with respect to resident relatives is invalid and that the defendant is therefore a covered person under the plan. The dissent determined that the defendant is not a covered person and that our law does not require that he be covered under the circumstances of this case. On February 19, 1991, the plaintiff moved to vacate the arbitration award. The defendant subsequently moved to confirm it. On June 7, 1991, the trial court vacated the award and denied the motion to confirm. This appeal followed.

We begin first by setting forth our standard of review and the principles we must apply in our analysis of this matter. When an arbitration panel’s interpretation and application of the law is at issue, an appellate court must conduct a de novo review. Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 375, 593 A.2d 498 (1991); Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 655 n.11, 591 A.2d 101 (1991). If the terms of the insurance policy at issue are ambiguous, any “ ‘limitation of liability on uninsured or underinsured motorist coverage must be construed most strongly against the insurer.’ ” Streitweiser v. Middlesex Mutual Assurance Co., supra, quoting American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 196, 530 A.2d 171 (1987). Because the policy language at issue here is plain on its face and not ambiguous, we next consider whether it nevertheless violates Connecticut law and public policy.

The defendant argues, in essence, that the plaintiff’s policy definition constitutes impermissible exclusionary language under our insurance statutes and regulations. He relies heavily on our Supreme Court’s decision in Harvey v. Travelers Indemnity Co., 188 Conn. 245, 449 A.2d 157 (1982), and contends that the language at issue violates the strong public policy favoring compensation for victims of uninsured motorists that has been the hallmark of our legislative and regulatory history for twenty-five years. See Streitweiser v. Middlesex Mutual Assurance Co., supra, 377.

As a backdrop to our resolution of the defendant’s claims, we briefly review the public policy behind uninsured motorist coverage. In Streitweiser v. Middlesex Mutual Assurance Co., supra, our Supreme Court stated that this policy is embodied in General Statutes (Rev. to 1989) § 38-175c, now reorganized and recod-ified as General Statutes § 38a-336 (b) and (d), “which requires every automobile liability insurance policy to include such coverage ‘for the protection of persons insured thereunder who are legally entitled to recover damages . . . .’ ” The accompanying regulation, § 38-175a-6 (a) of the Regulations of Connecticut State Agencies, accordingly provides that the “ ‘insurer shall undertake to pay on behalf of the insured all sums which the insured shall be legally entitled to recover ....’” General Accident Ins. Co. v. Wheeler, 221 Conn. 206, 211, 603 A.2d 385 (1992).

The court in Streitweiser further stated that “[t]his regulatory pattern establishes the public policy that ‘every insured is entitled to recover for the damages he or she would have been able to recover if the uninsured motorist had maintained a policy of liability insurance. . . .’ ” Streitweiser v. Middlesex Mutual Assurance Co., supra, 377, quoting Harvey v. Travelers Indemnity Co., supra, 249. To implement this policy, our Supreme Court has repeatedly held that “ ‘an insurer may not, by contract, reduce its liability for such uninsured or underinsured motorist coverage except as § 38-175a-6 of the Regulations of Connecticut State Agencies expressly authorizes.’ ” (Emphasis added.) Streitweiser v. Middlesex Mutual Assurance Co., supra, quoting Allstate Ins. Co. v. Ferrante, 201 Conn. 478, 483, 518 A.2d 373 (1986). In this case, we note that the regulation does not expressly permit an insurer to exclude from coverage residents of an insured’s household who own cars.

Although this history would seem to support the defendant’s claims, such is not the case. In Smith v. Nationwide Mutual Ins. Co., 214 Conn. 734, 573 A.2d 740 (1990), our Supreme Court upheld the validity of policy language similar to that before us in this case. The plaintiff in Smith, a passenger, was injured in an automobile collision. She argued that she was entitled to underinsurance benefits under the policy of the driver’s father because the driver was a covered person under that policy. The father’s “policy explicitly excluded from coverage ‘any vehicle other than your covered auto which is owned by a family member.’ Thus, it did not provide liability coverage to [the son] while he was driving his own vehicle, a vehicle not covered by the policy.” Id., 737.

Relying on Harvey v. Travelers Indemnity Co., supra, the plaintiff in Smith further argued that the policy language should be eliminated in the context of uninsured and underinsured motorist coverage. Harvey, she claimed, holds that “uninsured motorist coverage attaches to the insured person and therefore ‘an insured party may receive the benefits of a policy even though not occupying a vehicle insured under the policy.’ ” Smith v. Nationwide Mutual Ins. Co., supra. The court rejected these claims, finding that prohibition of such language would not advance the public policy embodied in General Statutes § 38-175c and § 38-175a-6 (a) of the Regulations of Connecticut State Agencies. The court declared that Harvey holds “that the public policy embodied in § 38-175c directs that uninsured motorist coverage is ‘person oriented’ and therefore must be provided to insureds while they are occupants of insured vehicles or uninsured vehicles. . . . ‘The coverage attaches to the insured person, not the insured vehicle.’ ... In Harvey we ruled that the plaintiff, an insured under his mother’s policy, was entitled to coverage under that policy, even though he was injured while occupying a vehicle owned by his father which was not insured.” (Citations omitted; emphasis in original.) Id., 738-39.

The distinguishing factor, therefore, between Harvey, where coverage was allowed, and Smith, where coverage was denied, is that in the former case the plaintiff was insured under the policy at issue, whereas in the latter case the plaintiff was not. Id., 739. Applying the teaching of these cases, we conclude that the defendant is not covered because he is not an insured person under the definitional language at issue, which violates neither law nor public policy. See also Carley v. Lumbermens Mutual Casualty Co., 10 Conn. App. 135, 142-43, 521 A.2d 1053 (1987) (language in father’s policy defining “non-owned” automobile precludes coverage for relatives living in father’s household).

The result we reach in this case is in accordance with the public policy embodied in General Statutes § 38-175c, which directs that uninsured motorist coverage applies “to insureds while they are occupants of insured vehicles or uninsured vehicles. . . . ‘The coverage attaches to the insured person . . . .’’’(Citation omitted; emphasis added.) Smith v. Nationwide Mutual Ins. Co., supra. It also accords with the language of § 38-175a-6 (a) of the Regulations of Connecticut State Agencies, which requires the insurer “ ‘to pay on behalf of the insured all sums which the insured shall be legally entitled to recover . . . .’ ” (Emphasis added.) General Accident Ins. Co. v. Wheeler, supra. The plaintiffs policy provides coverage when the claimant is (1) a family member (2) who is a household resident and (3) who does not own a car. At the time of the collision, the defendant was a family member and a household resident, but, because he owned a car, coverage did not extend to him.

The defendant also claims that the policy’s definitional language is, in reality, an exclusion because it both “provides coverage for Quinn and takes it away in the same sentence.” In his brief, the defendant suggests that such language could have been placed in that portion of the policy called “Those Not Protected,” where it also would be subject to invalidation. We decline to read into the policy any such devious maneuverings on the part of the plaintiff and find that the language at issue is not exclusionary but definitional.

In Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 573 A.2d 699 (1990), our Supreme Court discussed when an “exclusion” arises in an insurance policy. “ ‘In an insurance policy, an exclusion is a provision which eliminates coverage where, were it not for the exclusion, coverage would have existed.’ ” Id., 588. Thus, “ ‘before the need for an exclusion arises, there must first be coverage within the defined scope of the policy.’ ” Id., 589. It is clear, then, that before policy language can be said to be exclusionary, it must first provide coverage. In this case, because the defendant is not a covered person under the policy, the language at issue is not exclusionary.

Finally, the defendant argues that the plaintiff’s policy language represents a subtle attempt to prevent him from stacking insurance coverage. We disagree.

Although the defendant correctly points out that our Supreme Court has rejected attempts to limit stacking in personal automobile liability policies; see, e.g., Allstate Ins. Co. v. Ferrante, supra; Nicolletta v. Nationwide Ins. Co., 211 Conn. 640, 645-46, 560 A.2d 964 (1989); this argument assumes its conclusion because it presupposes that the defendant is entitled to stack coverage. “It is self-evident that, in all cases of ‘stacking,’ the injured person can only have been the occupant of one of the multiply-insured vehicles.” All state Ins. Co. v. Ferrante, supra, 486. Because our insurance statutes are “ ‘person oriented’ rather than ‘vehicle oriented,’ [our Supreme Court has] emphasized that insurance coverage ‘attaches to the insured person, not the insured vehicle.’ . . . From that perspective, the crucial question is whether an injured person has coverage under the terms of the policy . . . .” (Citations omitted; emphasis added.) Id. As stated above, that question, in this case, must be answered in the negative. Because the defendant is not a covered person, he is therefore not entitled to stack coverage under the plaintiff’s policy.

Finally, we note that our Supreme Court has recently barred attempts to aggregate coverage, particularly when, as here, the results would be unexpected and bizarre. See, e.g, Chmielewski v. Aetna Casualty & Surety Co., supra, 671 (premium of $262 would purchase $40,500,000 of coverage); Wilson v. Security Ins. Co., 213 Conn. 532, 536, 569 A.2d 40, cert. denied, U.S. , 111 S. Ct. 52, 112 L. Ed. 2d 28 (1990) (premium of $137 would purchase $38,440,000 of coverage); Cohn v. Aetna Ins. Co., 213 Conn. 525, 531, 569 A.2d 541 (1990) (premium of $73 would purchase $19,360,000 of coverage); see also Broderick v. Ins. Co of North America, 25 Conn. App. 673, 676, 596 A.2d 18 (1991) (premium of $58 would purchase $2,000,000 of coverage). Permitting the defendant to stack coverage on the plaintiffs policy would lead to the absurd result that any number of the insured’s relatives residing in the household could stack coverage on one or all of each other’s policies, regardless of whether they are insured persons under those policies. Such a practice would lead to results far beyond the reasonable expectations of both insurer and insured. Chmielewski v. Aetna Casualty & Surety Co., supra, 670; Cohn v. Aetna Ins. Co., supra, 530. We decline to venture down any such “judicial primrose path”; Carley v. Lumbermens Mutual Casualty Co., supra, 143; that could potentially wreak the financial havoc with our system of insurance that now faces our national banking system in the aftermath of the savings and loan debacle. Because our Supreme Court has repeatedly and unequivocally rejected such unwarranted expansions of stacking, we decline to diverge from its path.

The judgment is affirmed.

In this opinion Heiman, J., concurred.

Landau, J.,

dissenting. My reasons for dissenting are two-fold. First, I believe that § 38-175a-6 of the Regulations of Connecticut State Agencies precludes the plaintiff insurance carrier from excluding from coverage residents of a policyholder’s household who own their own cars, and, second, I respectfully contend that the majority’s reliance on Smith v. Nationwide Mutual Ins. Co., 214 Conn. 734, 573 A.2d 740 (1990), is misplaced. I agree with the majority to the extent that it recognizes that an insurer may not, by contract, reduce its liability for such uninsured or underinsured motorist coverage except as § 38-175a-6 of the Regulations of Connecticut State Agencies expressly authorizes. See Allstate Ins. Co. v. Ferrante, 201 Conn. 478, 483, 518 A.2d 373 (1986). It is at this point, however, that I part company with my brethren.

Section 38-175a-6 expressly authorizes an insurer to limit its liability to the extent that damages have been paid (1) by or on behalf of any person responsible for the injury, (2) have been paid or are payable under any workers’ compensation or disability benefits law, (3) have been paid under the policy in settlement of a liability claim, or (4) have been paid or are payable under any provisions of the policy for direct indemnity for medical expenses or basic reparations benefits. The regulation nowhere authorizes an insurer to exclude from coverage individuals residing in the home of the policy holder who own their own automobiles.

The majority inappropriately relies on Smith v. Nationwide Mutual Ins. Co., supra, in upholding the policy language and thereby reaching the conclusion that the defendant is not an insured under the policy. The policy in Smith provided that “[w]e will pay damages for bodily injury or property damage for which any covered person becomes legally responsible because of an auto accident.” Id., 736. “Covered person” was defined as “you or any family member for the ownership, maintenance, or use of any auto or trailer.” Id. The policy, however, explicitly excluded from coverage “any vehicle other than your covered auto which is owned by any family member.” (Emphasis added.) Id., 737. Because the exclusion in Smith addressed a class of automobiles rather than a class of individuals, the exclusion did not violate the public policy underlying the “person oriented” nature of uninsured motorist insurance.

In the policy at issue here, a covered person is defined as, inter alia, “a member of the family who is a resident of the household and who doesn’t own a car or whose spouse doesn’t own a car.” The definition excludes the defendant, who is a family member and resident of the policyholder’s household, on the sole basis of his status as a vehicle owner. Unlike the exclusion in Smith, the limitation here addresses a class of individuals and therefore undermines the public policy considerations in General Statutes (Rev. to 1989) § 38-175c and § 38-175a-6 of the Regulations of Connecticut State Agencies. Thus, because of the “person oriented” nature of uninsured motorist insurance, which the majority acknowledges, an exclusion premised on whether an individual, who otherwise would be covered, owned a vehicle, cannot stand.

A similar issue was addressed by our Supreme Court in Streitweiser v. Middlesex Mutual Assurance Co, 219 Conn. 371, 593 A.2d 498 (1991). In Streitweiser, the issue was whether our state legislative policy mandating insurance protection for someone injured by an identified uninsured motorist extends to someone injured as a result of an unidentified motorist who has no physical contact with the injured claimant. The policy limited coverage to “ ‘a hit and run vehicle whose operator or owner cannot be identified and which hits’ a covered person or auto.” Id., 376. The plaintiff argued that because public policy favors uninsured motorist coverage, and because § 38-175a-6 of the Regulations of Connecticut State Agencies did not expressly authorize an insurer to reduce its liability in such a manner, the defendant was precluded from contractually excluding from uninsured motorist coverage the plaintiff’s right to recover for injuries sustained where there was no physical contact. The court acknowledged that because the regulations contained no express authorization to reduce the uninsured motorist coverage, the question should be resolved in favor of insurance coverage, but felt constrained by two earlier cases where coverage had been denied. See Weingarten v. Allstate Ins. Co., 169 Conn. 502, 507, 363 A.2d 1055 (1975), and Rosnick v. Aetna Casualty & Surety Co., 172 Conn. 416, 423, 374 A.2d 1076 (1977). In light of this dilemma, the court chose to reconsider Weingarten and Rosnick, and, in so doing, overruled both cases. Accordingly, I would hold that the defendant is an individual covered under the policy, despite the definitional language to the contrary.

I would therefore reverse the decision of the trial court.

       The plaintiff’s application named both James J. Quinn III and his father as defendants. Only the named defendant has appealed. We will refer to him as the defendant.

       The Middlesex policy issued to the defendant’s father provides in pertinent part: “You, your and yourself means the person named on the declarations page and the person’s husband or wife if a resident of the same household.
      “You, your and yourself also means a member of the family who is a resident of the household and who doesn’t own a car or whose spouse doesn’t own a car.”

       General Statutes (Rev. to 1989) § 38-175c provides: “uninsured motorist COVERAGE, (a) (1) Every such policy shall provide insurance, herein called uninsured motorist coverage, in accordance with such regulations, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom, provided each insurer licensed to write automobile liability insurance in this state shall provide such uninsured motorists coverage with limits requested by the named insured upon payment of the appropriate premium, but such insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily injury coverage of such policy issued to such named insured. No insurer shall be required to provide uninsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underin-sured motor vehicle or a motorcycle that is owned by the named insured, or (B) to any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured. Every such policy issued on or after October 1, 1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. With respect to any claim submitted to arbitration on or after October 1,1983, the arbitration proceeding shall be conducted by a single arbitrator if the amount in demand is forty thousand dollars or less or by a panel of three arbitrators if the amount in demand is more than forty thousand dollars.
      “(2) Notwithstanding any provision of this section to the contrary, every such policy issued or renewed on and after July 1,1984, shall provide uninsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless the insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by the insured.
      “(b) (1) An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage, exceed the limits of the insured’s uninsured motorist coverage.
      “(2) For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subdivision (1) of this subsection.”

       Public Acts 1990, No. 90-243, § 127.

       Section 38-175a-6 of the Regulations of Connecticut State Agencies provides: “minimum provision for protection against uninsured MOTORISTS
      “(a) Coverage. The insurer shall undertake to pay on behalf of the insured all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured caused by an accident involving the uninsured motor vehicle. This coverage shall insure the occupants of every motor vehicle to which the bodily injury liability coverage applies. ‘Uninsured motor vehicle’ includes a motor vehicle insured against liability by an insurer that is or becomes insolvent. . . .”

       Regs., Conn. State Agencies § 38-175a-6.


author: Heiman, J.

text:
    Cecil Young v. Margaret L. Salomone et al.
    (9302)
    Daly, O’Connell and Heiman, Js.
    Argued April 3
    decision released May 19, 1992

      Cecil Young, pro se, the appellant (plaintiff).

      Andrea B. Gaines, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch, attorney general, for the appellee (defendant Catherine King).
   Heiman, J.

The plaintiff in this personal injury action appealed from the trial court’s judgment, rendered after a jury verdict, in favor of the defendants. He claims that the trial court (1) improperly restricted his questioning of veniremen, (2) improperly denied his motion for a directed verdict on the issue of governmental immunity, (3) incorrectly charged the jury regarding governmental immunity, and (4) improperly excluded evidence regarding the gender of a person who allegedly named him as a possible carrier of venereal disease. We affirm the trial court’s judgment.

The plaintiff instituted the underlying action seeking damages for assault and conspiracy to commit assault, arising out of treatment he allegedly received at the Communicable Disease Clinic in Bridgeport (clinic). The jury reasonably could have found the following facts. The clinic was involved in testing and treating people with communicable diseases at the time of the alleged events that form the basis of this lawsuit. Clinic personnel, in an attempt to locate individuals who were at risk of contracting such diseases, questioned patients regarding the identities of their sexual partners and attempted to contact such partners in order to diagnose and, if necessary, treat them.

On or about March 27, 1984, Catherine King, an epidemiologist employed by the clinic, was told that a clinic patient had named the plaintiff as a sexual partner. As a result, King called the plaintiff and asked him to come to the clinic to be tested for an undisclosed disease. The plaintiff visited the clinic on April 13, 1984, and was interviewed, tested and treated for venereal disease.

In his complaint, the plaintiff alleged that the defendants, King and other employees of the clinic, had caused him to suffer “physical and mental anguish by subjecting him to unnecessary medical testing and treatment . . . and by falsely informing [him] that he had contracted, suffered from, and was a carrier of incurable venereal disease.” On June 17, 1990, after a seven week trial, the jury returned a verdict in favor of the defendants. The trial court rendered judgment on the verdict on June 28, 1990.

The plaintiff raises a number of claims, each of which suffers from a technical defect that precludes appellate review. He first claims that the trial court improperly prohibited him from questioning veniremen regarding whether his race would affect their judgment. The plaintiff has provided no transcript of the jury voir dire. As such, he has failed to sustain his burden of providing us with an adequate record on which to review this claim. See Housing Authority v. Pine Associates, Inc., 13 Conn. App. 489, 491-92, 537 A.2d 526 (1988).

The plaintiff next claims that the trial court improperly denied his motion for a directed verdict on the issue of governmental immunity. The file in this case contains no motion for a directed verdict filed by the plaintiff. Likewise, the transcripts filed by the plaintiff do not reflect an oral motion for a directed verdict. Again, appellate review of this claim is foreclosed by the plaintiffs failure to provide us with an adequate record. Id.

The plaintiff next claims that the trial court incorrectly charged the jury regarding governmental immunity. This claim was not preserved for appellate review. The transcripts filed by the plaintiff indicate that on June 7, 1990, he excepted to the trial court’s initial jury instructions regarding governmental immunity. The following day, however, the trial court reinstructed the jury on governmental immunity and told them that the reinstruction was in substitution of its initial instruction on the subject. The transcript filed by the plaintiff contains neither an objection nor an exception to the substituted instruction. Thus, any claim relating to the substituted instruction was not preserved for appellate review. See Friedlander v. Friedlander, 191 Conn. 81, 90 n.12, 463 A.2d 587 (1983); Lombardi v. Groton, 26 Conn. App. 157, 161, 599 A.2d 388 (1991).

The plaintiff concludes by claiming that the trial court improperly excluded evidence regarding the gender of the person who allegedly had named him as a possible carrier of venereal disease. King claims that we should not consider this claim because the plaintiff has failed to provide us with an adequate record.

The transcript filed by the plaintiff discloses the following exchange during direct examination of King:

“[Plaintiff’s Attorney]: Male person said he was a contact person?
“(Whereupon an objection was made, argument was heard, and the objection was sustained.)”
The transcript further reveals the following:
“[Plaintiff’s Attorney]: Is the contact person a male?
“(Whereupon an objection was made and sustained.)
“(Whereupon a lunch recess was taken.)”

The foregoing gaps in the transcript prevent us from ascertaining the grounds on which the objections were made, the nature of any argument presented to the trial court or the grounds on which the trial court’s rulings were based. Further, the plaintiff failed to cure these deficiencies by filing a motion for rectification with the trial court. See Practice Book § 4051. Once again, the plaintiff’s failure to provide us with an adequate record precludes review of his claim. See Petrillo v. Maiuri, 138 Conn. 557, 562, 86 A.2d 869 (1952).

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants at trial were Margaret Salomone, Michelle Lombardi, Victoria White, Florence Kiely, Catherine King, and the coexecutors of the estate of Richard Kasper, Gregory and Nettie Kasper. Although the plaintiff appealed from the trial court’s judgment in favor of all of the defendants, he subsequently withdrew the appeal as to Salomone, Lombardi, White, Kiely and the Kaspers. Thus, Catherine King is the sole appellee.


text:
    Ronald Miller et al. v. Conservation Commission of the Town of Salem et al.
    (10533)
    Norcott, Foti and Lavery, Js.
    Argued April 7
    decision released May 19, 1992

      Thomas A. Manning, for the appellants (plaintiffs).

      John W. Butts, for the appellee (named defendant).
   Lavery, J.

This is an appeal from the granting of a motion to dismiss. The motion was granted on the basis of the plaintiffs’ failure to return their appeal from the decision of the defendant Salem conservation commission to the Superior Court within the forty-five day period set forth in General Statutes § 4-183. The plaintiffs claim that an appeal taken under General Statutes § 22a-43, a portion of the Inland Wetlands and Watercourses Act, is not bound by the forty-five day filing period of § 4-183. We disagree and affirm the judgment of the trial court.

The pertinent facts are as follows. In August, 1990, the commission ordered the plaintiffs to cease and desist from conducting certain regulated activities in a designated wetlands area. The hearing on the order was continued until December, 1990, at which time the plaintiffs applied to the commission for a regulated activity permit. On February 11, 1991, the commissioner terminated the hearing, leaving the order in place, and denied the permit for failure to comply with the order. Notice of the decision was mailed to the plaintiffs on February 14, 1991. On March 29, 1991, the plaintiffs brought an appeal by certified mail, serving the commission and the commissioner of environmental protection. The appeal and affidavit of services were returned to the clerk of the judicial district of New London at New London on April 15, 1991, with a return day of April 23, 1991. The commission filed a motion to dismiss for failure to file timely. The trial court granted the motion to dismiss and the plaintiffs have appealed to this court. All parties agree that the plaintiffs did not file their appeal with the clerk of the Superior Court within forty-five days after the mailing of the commission’s final decision.

Appeals from the decisions of an inland wetlands agency are brought pursuant to General Statutes § 22a-43, which provides in pertinent part: “The commissioner or any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, district or municipality or any person owning or occupying land which abuts any portion of land or is within a radius of ninety feet of the wetland of watercourse involved in any regulation, order, decision or action made pursuant to said sections may appeal to the superior court in accordance with the provisions of section 4-183, except venue shall be in the judicial district where the land affected is located, and if located in more than one judicial district to the court in any such judicial district. Such appeal shall be made returnable to said court in the same manner as that prescribed for civil actions brought to said court. ...” (Emphasis added.)

General Statutes § 4-183 (c) provides: “Within forty-five days after mailing of the final decision . . . a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office or at the office of the attorney general in Hartford and file the appeal with the clerk of the superior court for the judicial district .... Within that time, the person appealing shall also serve a copy of the appeal on each party listed in the final decision at the address shown in the decision, provided failure to make such service within forty-five days on parties other than the agency that rendered the final decision shall not deprive the court of jurisdiction over the appeal. Service of the appeal shall be made by (1) United States mail, certified or registered, postage prepaid, return receipt requested, without the use of a sheriff or other officer, or (2) personal service by a proper officer or indifferent person making service in the same manner as complaints are served in ordinary civil actions.” (Emphasis added.)

Section 4-183 provides two requirements, one regarding service and one regarding filing. Service must be made on the commission and the appeal must be filed with the Superior Court within forty-five days of the mailing of the notice of the commission’s decision. Raines v. Freedom of Information Commission, 221 Conn. 482, 487, 604 A.2d 819 (1992). In the present case, the first requirement, service of the appeal, was met by the plaintiffs utilizing certified mail within the forty-five day period. It is clear, however, that the second requirement was not met because the appeal was not filed with the clerk of the court until April 15, 1991, well in excess of the forty-five days.

The plaintiffs argue that the language of § 22a-43 that provides that “[sjuch appeal shall be made returnable to said court in the same manner as that prescribed for civil actions brought to said court” is an exception to the requirement of § 4-183, peculiar only to appeals from an inland wetlands decision. The plaintiffs claim that this appeal may be returned to court in accordance with § 52-46a, not later than six days before the return day and that the appeal may have a return day on any Tuesday not later than two months after the date of the process. The plaintiffs further argue that service must be commenced within forty-five days after notice of the commission’s decision and that the action is to be returned to the judicial district in which the affected land is located. The commission agrees that the return day of April 23 is within sixty days after March, 28, 1991, and the return to the court in New London satisfied the venue provision of the statute.

The issue is whether the sentence “[sjuch appeal shall be made returnable to said court in the same manner as that prescribed for civil actions brought to said court” deals with the day that is to be designated as the return day or with the day the appeal is to be filed with the clerk of the court. “ ‘The meaning to be given a statute is determined by legislative intent and that legislative intent must be determined by language actually used in the legislation.’ . . .” (Citations omitted.) Demar v. Open Space & Conservation Commission, 211 Conn. 416, 425, 559 A.2d 1103 (1989). “To determine the collectively expressed legislative intent, we look first to the language of the statute itself. If that language is plain and unambiguous, we go no further. University of Connecticut v. Freedom of Information Commission, 217 Conn. 322,328, 585 A.2d 690 (1991).” Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991). It is clear from the plain language of § 22a-43 that the words “[sjuch appeal shall be made returnable” refers to that part of the process that summons the defendant to appear before a particular court on a particular date and at a particular time. It complements the venue difference between §§ 22a-43 and 4-183 (c). The latter requires all appeals to be made returnable to the Hartford-New Britain judicial district and the former requires return to the judicial district wherein the land lies. Section 22a-43 does not refer to the date by which the appeal is to be filed. The filing requirement is clearly set forth in § 4-183 (c), which requires filing of the appeal within forty-five days of the mailing of the commission’s decision.

The plaintiffs argue that even if General Statutes § 4-183 (c) requires filing within forty-five days of the mailing of the commission’s decision, a late filing prior to the return date preceded by timely service was not a jurisdictional defect. We disagree.

“Appeals to courts from administrative agencies exist only under statutory authority. Charles Holdings, Ltd. v. Planning & Zoning Board of Appeals, 208 Conn. 476, 479, 544 A.2d 633 (1988); Tazza v. Planning & Zoning Commission, 164 Conn. 187, 190, 319 A.2d 393 (1972). A statutory right to appeal may be exercised only by strict compliance with the statutory provisions by which it is created. Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, 201 Conn. 350, 356, 514 A.2d 749 (1986); Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 6, 363 A.2d 1386 (1975). Such provisions are mandatory, and, if they are not complied with, the appeal is subject to dismissal. Basilicato v. Department of Public Utility Control, 197 Conn. 320, 322, 497 A.2d 48 (1985); Royce v. Freedom of Information Commission, 177 Conn. 584, 587, 418 A.2d 939 (1979).” (Internal quotation marks omitted.) Vernon Village, Inc. v. Carothers, 217 Conn. 130, 142, 585 A.2d 76 (1991); Raines v. Freedom of Information Commission, supra, 489-90. It is undisputed that the plaintiffs failed to file the writ with the clerk of the court within the forty-five day period of the mailing of the commission’s decision as required by § 4-183 (c). We hold that the trial court properly dismissed the appeal for lack of subject matter jurisdiction.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs are Ronald F. Miller and Maureen T. Cain.

       Section 22a-43 was amended effective October 1, 1991, requiring appeals to be brought in accordance with the time limits of General Statutes § 8-8. This change does not affect the present appeal. Raines v. Freedom of Information Commission, 221 Conn. 482, 487, 604 A.2d 819 (1992).

       General Statutes § 52-46a provides: “RETURN OF PROCESS. Process in civil actions returnable to the supreme court shall be returned to its clerk at least twenty days before the return day and, if returnable to the superior court, except process in summary process actions, to the clerk of such court at least six days before the return day.”

       General Statutes § 52-48 provides: “return day of process, (a) Process in civil actions, including transfers and applications for relief or removal, but not including summary process actions, brought to the superior court may be made returnable on any Tuesday in any month. The return day in any summary process action may be any week day, Monday through Saturday, except a holiday, (b) All process shall be made returnable not later than two months after the date of the process and shall designate the place where court is to be held.” (Emphasis added.)


author: Dupont, C. J.

text:
    State of Connecticut v. Rosalbina Novoa
    (10130)
    Dupont, C. J., Foti and Lavery, Js.
    Argued March 30
    decision released May 19, 1992

      Bruce A. Sturman, public defender, for the appellant (defendant).

      Kevin T. Kane, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of conspiracy to sell cocaine and to possess cocaine with intent to sell by a person who is not drug-dependent in violation of General Statutes §§ 53a-48 and 21a-278 (b). The sole issue we must resolve is whether General Statutes §§ 54-41p (b) and 54-41b allow the use of lawfully obtained wiretap evidence in a prosecution for a violation of § 21a-278 (b). The trial court denied the defendant's motion to suppress such evidence pursuant to General Statutes § 54-41m.

General Statutes § 54-41b provides that an application may be made to a panel of judges to obtain authorization for the interception of a wire communication when “such interception may provide evidence of the commission of offenses involving . . . violations of section 21a-277 . . . .” The resolution of the issue before us depends, therefore, on whether a violation of General Statutes § 2 la-278 (b) is an offense “involving” the violation of General Statutes § 21a-277. We conclude that the lawfully obtained wiretap evidence in this case was properly admitted into evidence against the defendant in a prosecution under § 21a-278 (b), and, therefore, affirm the judgment of the trial court.

Cases have strictly construed our wiretap statutes because to do otherwise would countenance an intrusion into an individual’s privacy and is “inherently greater than a typical particularized search of one’s home or person which consists of essentially one overt intrusion. A wiretap necessarily is a continuing covert intrusion.” State v. Ross, 194 Conn. 447, 458, 481 A.2d 730 (1984); State v. Formica, 3 Conn. App. 477, 481, 489 A.2d 1060, cert. denied, 196 Conn. 806, 494 A.2d 903 (1985).

Yet, “[a] statute, even one which has been held to be subject to strict construction . . . must be read with common sense, so as to accomplish a reasonable result and not to thwart its purpose. ... It cannot be denied that one of the principal purposes of our statutory scheme is to permit wiretaps where there is probable cause to believe that an individual is illegally selling a drug such as cocaine.” (Citations omitted.) State v. Ralston, 7 Conn. App. 660, 682, 510 A.2d 1346 (1986).

There is a close relationship between §§ 21a-277 and 21a-278 (b). They differ, on the facts of this case, only in the status of the offender and in the punishment for the offense. Section 21a-278 (b) applies to persons who are not drug-dependent whereas § 21a-277 applies to persons who are. The absence of drug dependency, however, is not an element of an offense committed in violation of § 21a-278 (b). State v. Hart, 221 Conn. 595, 608, 605 A.2d 1366 (1992). When the drug involved is cocaine, the two statutes contain the same elements. The punishment for a violation of § 21a-278 (b), however, depends on whether an offender can sustain a burden of proving her or his drug dependency by a fair preponderance of the evidence in order to obtain an exemption from liability as provided in § 2la-269. Id.

Because both crimes, on the facts of this case, contain the same elements that must be proved by the state beyond a reasonable doubt, it is reasonable to conclude that the crimes should be treated similarly in the context of the wiretap act. It is not reasonable to require a suppression of evidence in the prosecution of persons who are not drug-dependent, the more serious crime in terms of punishment, and to allow the very same evidence to be used in the prosecution of drug dependent persons. Such a result would not provide any greater privacy protection to individuals since lawfully seized wiretap evidence of illegal drug activity can always be used to support a conviction under § 21a-277.

The gravamen of the defendant’s claim that the wiretap evidence must be suppressed centers about the interpretation of the word “involving” as used in § 54-41b. To involve means to “include” or to “contain.” American Heritage Dictionary (1981). Since a violation of § 21a-278 (b) predicated on a sale of cocaine or possession of cocaine with intent to sell contains the same elements as does a violation of § 21a-277 when predicated on the sale of cocaine or possession of cocaine with intent to sell, a violation of one necessarily “includes” or “contains” a violation of the other. The plain language of §§ 54-41p (b) and 54-41b, therefore, makes clear that the use of wiretap evidence is not limited to drug prosecutions under § 21a-277.

It would undermine the plain language of General Statutes §§ 54-41b and 54-41p (b), as well as their purpose, namely, to afford the police a means to investigate narcotic offenses, to hold that evidence obtained through a lawful wiretap is inadmissible in a narcotics prosecution under § 21a-278 (b). We conclude that § 21a-278 (b) is a crime involving a violation of § 21a-277 for purposes of §§ 54-41b and 54-41p (b).

The judgment is affirmed.

In this opinion the other judges concurred.

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

       General Statutes § 54-41p (b) provides: “Any person who has received, by any means authorized by this chapter, any information concerning a wire communication, or evidence derived therefrom, intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence insofar as it relates to the crimes set forth in section 54-41b while giving testimony under oath or affirmation in any criminal proceeding before any court or grand jury.”

       General Statutes § 54-41b provides: “The chief state’s attorney or the state’s attorney for the judicial district in which the interception is to be conducted may make application to a panel of judges for an order authorizing the interception of any wire communication by investigative officers having responsibility for the investigation of offenses as to which the application is made when such interception may provide evidence of the commission of offenses involving gambling, bribery, violations of section 53-395, violations of section 21a-277 or felonious crimes of violence.”

       General Statutes § 54-41m provides that the contents of any intercepted wire communication, or evidence derived therefrom, may be suppressed on the ground that the communication was unlawfully intercepted, the order authorizing it was insufficient, or the interception did not conform with the order of authorization or approval.

       General Statutes § 21a-277 provides in pertinent part: “(a) Any person who manufactures, distributes, sells, prescribes, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marihuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.
      “(b) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance, except a narcotic substance, or a hallucinogenic substance other than marihuana, except as authorized in this chapter, may, for the first offense, be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned; and, for each subsequent offense, may be fined not more than one hundred thousand dollars or be imprisoned not more than fifteen years, or be both fined and imprisoned. ...”

       The defendant does not claim that any communications were unlawfully intercepted, or that the order of the panel issuing the order was insufficient or that the interception was not made in conformity with the order.

       It is not certain whether State v. Hart, 221 Conn. 595, 607-11, 605 A.2d 1366 (1992), disturbs the holding of State v. Amaral, 179 Conn. 239, 242-44, 425 A.2d 1293 (1979), that a violation of General Statutes § 21a-277 predicated on a sale of cocaine or possession of cocaine with intent to sell is a lesser included offense of a violation of General Statutes § 21a-278 (b). To the extent that the holding remains intact, the latter must be a crime “involving” the lesser included crime of § 21a-277.