author: SPEAR, J.

text:
    EDWARD ROSENFIELD v. ROGIN, NASSAU, CAPLAN, LASSMAN AND HIRTLE, LLC
    (AC 20758)
    Schaller, Spear and Daly, Js.
    Argued May 9, 2001
    officially released April 16, 2002

      A. Alan Sheffy, for the appellant (plaintiff).

      Jeffrey L. Merit, for the appellee (defendant).
   Opinion

SPEAR, J.

In this legal malpractice action, the plaintiff, Edward Rosenfield, claims that the defendant law firm, Rogin, Nassau, Caplan, Lassman & Hirtle, LLC (defendant), failed to file in a timely manner a legal malpractice action on his behalf against his former attorney. The trial court rendered a summary judgment in favor of the defendant, and the plaintiff appealed, claiming that the court improperly concluded that (1) the collateral estoppel doctrine did not apply and (2) the continuing course of conduct and continuous representation doctrines tolled the statute of limitations in the underlying legal malpractice action. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. The initial legal malpractice action arose out of a foreclosure matter in which Levy & Droney, P.C. (Levy), represented the plaintiff. See Rosenfield v. Cymbala, Superior Court, judicial district of Middlesex, Docket No. 060180 (December 18, 1992). In that foreclosure action, the court, Higgins, J., orally rendered a judgment of dismissal on December 1,1992, and issued a written memorandum of decision on December 18, 1992. Levy appealed from the judgment of dismissal on behalf of the plaintiff, and we affirmed the judgment in a per curiam opinion. Rosenfield v. Cymbala, 33 Conn. App. 931, 636 A.2d 881 (1994).

Following our decision, Levy brought a second foreclosure action on the plaintiffs behalf, which resulted in a summary judgment in favor of the foreclosure defendant based on the doctrine of res judicata. Rosenfield v. Cymbala, Superior Court, judicial district of Middlesex, Docket No. CV 940072816 (August 23,1995). Levy again filed an appeal, but before we decided the case, the plaintiff retained the defendant to bring a malpractice action against Levy for negligence in handling the foreclosure action. We subsequently affirmed the court’s judgment. Rosenfield v. Cymbala, 43 Conn. App. 83, 681 A.2d 999 (1996).

The defendant served a complaint on Levy on December 15, 1995. In September, 1996, the law firm Marder & Kallet filed an appearance on the plaintiffs behalf in lieu of the defendant in this action. Levy subsequently filed a motion for summary judgment, alleging that the action was barred by the statute of limitations set forth in General Statutes § 52-577. Levy claimed that the complaint served on December 15, 1995, was untimely because the three year statute of limitations had begun to run on the date of the court’s oral decision on December 1, 1992. Marder & Kallet argued that the filing was timely because the statute of limitations had begun to run when the memorandum of decision was issued on December 18, 1992. The court, Wagner, J., agreed with Levy and rendered a summary judgment in its favor. Rosenfield v. Levy & Droney, P. C., Superior Court, judicial district of Hartford, Docket No. CV 960556791S (April 16, 1997). No appeal was taken from Judge Wagner’s decision.

The present legal malpractice action arose from the defendant’s alleged failure to file the action against Levy in a timely manner. The defendant filed a motion for summary judgment, claiming that, notwithstanding Judge Wagner’s ruling, it had filed the complaint in a timely manner. The defendant argued that the legal representation of the plaintiff continued through the first appeal, which tolled the statute of limitations until at least February 1, 1994, the date we affirmed the first judgment of dismissal of the foreclosure action. Rosenfield v. Cymbala, supra, 33 Conn. App. 931-32. The defendant argued that the complaint served on December 15, 1995, therefore, was timely. The court, Peck, J., agreed and rendered a summary judgment in the defendant’s favor. This appeal followed.

I

The plaintiff claims that the court improperly concluded that the collateral estoppel doctrine did not preclude the defendant from relitigating the issue of the tolling of the statute of limitations. Specifically, the plaintiff argues that Judge Peck was barred from reconsidering Judge Wagner’s ruling that the defendant’s filing of the complaint was untimely because the three year statute of limitations contained in § 52-577 had begun to run from the date of Judge Higgins’ oral decision on December 1, 1992. The plaintiff argues that the court improperly considered the tolling issue and cited case law regarding the continuous course of conduct doctrine. We are unpersuaded.

“Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment. . . . Furthermore, [t]o invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding. .. .

“An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered. ... If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta.” (Citations omitted; internal quotation marks omitted.) Pitchell v. Williams, 55 Conn. App. 571, 577-78, 739 A.2d 726 (1999), cert. denied, 252 Conn. 925, 746 A.2d 789 (2000).

We conclude that the court properly ruled that the tolling claim was not barred by the collateral estoppel doctrine. The defendant here was neither a party nor in privity with a party to the cause of action determined by Judge Wagner and, therefore, Judge Peck was not precluded from addressing the tolling issue. See Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 814, 695 A.2d 1010 (1997) (collateral estoppel to be applied only when there exists such an identification in interest of one person with another as to represent the same legal rights). Moreover, the plaintiff failed to present any evidence that the continuing course of conduct and continuous representation doctrines or any other tolling issue was in the pleadings or otherwise litigated before Judge Wagner. Furthermore, Judge Wagner did not cite cases involving the continuing course of conduct doctrine for the proposition that the doctrine did not apply, but rather for the definition of “act or omission” under § 52-577. Judge Peck, therefore, was not precluded from considering whether there was a genuine issue of material fact as to whether the continuing course of conduct or continuous representation doctrine applied to toll the statute of limitations.

The plaintiff argues that permitting the consideration of the tolling issue would “directly fly against the underlying judicial policy that favors judicial economy, the stability of former judgments and finality, and would prejudice the plaintiff by preventing [him] from seeking a remedy altogether.” We disagree.

Our conclusion is consistent with the collateral estoppel doctrine and the underlying policy of the doctrine. Furthermore, the plaintiff is not prejudiced. He failed to meet his burden of proving that the defendant failed to file the cause of action against Levy in a timely manner.

II

The plaintiff next claims that the court improperly concluded that there was no genuine issue of material fact that the continuing course of conduct and continuous representation doctrines tolled the statute of limitations in the underlying legal malpractice action. Specifically, the plaintiff argues that the continuing course of conduct and continuous representation doctrines never have been recognized or applied in Connecticut in the legal malpractice context. After outlining our standard of review and the law of the underlying claim, we shall discuss the applicability of each doctrine separately.

“[T]he scope of our review of the granting of a motion for summary judgment is plenary. . . . In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.” (Citations omitted; internal quotation marks omitted.) Richter v. Danbury Hospital, 60 Conn. App. 280, 286, 759 A.2d 106 (2000).

“Practice Book § 17-49 . . . requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. . . . The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. ... In deciding a motion for summaiy judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. ... A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.” (Citations omitted; internal quotation marks omitted.) Mountaindale Condominium Assn., Inc. v. Zappone, 59 Conn. App. 311, 315, 757 A.2d 608, cert. denied, 254 Conn. 947, 762 A.2d 903 (2000).

“In general, the plaintiff in an attorney malpractice action must establish: (1) the existence of an attorney-client relationship; (2) the attorney’s wrongful act or omission; (3) causation; and (4) damages. ... To prove causation and damages here the plaintiff must establish that the defendants’ failure to file an action . . . within the statute of limitations period caused him harm because his . . . action is now time barred.” (Citation omitted.) Mayer v. Biafore, Florek & O’Neill, 245 Conn. 88, 92, 713 A.2d 1267 (1998).

The plaintiffs legal malpractice action against the defendant alleges that (1) there was an attorney-client relationship between the plaintiff and the defendant, (2) the defendant failed to file the malpractice action against Levy in a timely manner, (3) as a result of the defendant’s negligence, such action was barred by § 52-577, and (4) the plaintiff suffered financial losses and damages that he would have recovered from Levy. Furthermore, the plaintiff argues that the fact that Judge Wagner dismissed the underlying action against Levy as being untimely supports his allegations.

The issue is whether the defendant failed to file the legal malpractice action against Levy in a timely manner or if either the continuing course of conduct or continuous representation doctrine applied to the underlying legal malpractice action against Levy to toll the statute of limitations.

The underlying legal malpractice action that the defendant allegedly failed to file in a timely manner was based on a claim of negligence, which was subject to § 52-577. See Sanborn v. Greenwald, 39 Conn. App. 289, 301-302, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995). Section 52-577 provides that “[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.” “Section 52-577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs. Our Supreme Court stated in Fichera v. Mine Hill Corporation, 207 Conn. 204, 212, 541 A.2d 472 (1988): In construing our general tort statute of limitations, General Statutes § 52-577, which allows for an action to be brought within three years from the date of the act or omission complained of, we have concluded that the history of that legislative choice of language precludes any construction thereof delaying the start of the limitation period until the cause of action has accrued or the injury has occurred.” (Internal quotation marks omitted.) S.M.S. Textile Mills, Inc. v. Brown, Jacobson, Tillinghast, Lahan & King, P.C., 32 Conn. App. 786, 790-91, 631 A.2d 340, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993). “When conducting an analysis under § 52-577, the only facts material to the trial court’s decision on a motion for summary judgment are the date of the wrongful conduct alleged in the complaint and the date the action was filed.” (Internal quotation marks omitted.) Collum v. Chapin, 40 Conn. App. 449, 451, 671 A.2d 1329 (1996).

“Section 52-577 is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues.” (Internal quotation marks omitted.) Sanborn v. Greenwald, supra, 39 Conn. App. 301-302. Our Supreme Court has recognized that the repose section of General Statutes § 52-584 “may be tolled under the continuous treatment or the continuing course of conduct doctrine, thereby allowing a plaintiff to commence his or her lawsuit at a later date.” Blanchette v. Barrett, 229 Conn. 256, 265, 640 A.2d 74 (1994). The trial court based its decision on both the continuing course of conduct and the continuous representation doctrines.

A

Continuing Course of Conduct Doctrine

The plaintiff claims that the court improperly concluded that the continuing course of conduct doctrine tolled the statute of limitations in the underlying legal malpractice action. Specifically, he argues that the continuing course of conduct doctrine never has been adopted by an appellate court in this state. Since oral arguments, this court applied the continuing course of conduct doctrine to toll the statute of limitation in a legal malpractice action. Giulietti v. Giulietti, 65 Conn. App. 813, 832-36, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001). We conclude, therefore, that the continuing course of conduct doctrine applies to legal malpractice actions. We must, however, consider whether the court here properly applied the doctrine.

“ [ W]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed. . . . [I]n order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong. . . . Where [our Supreme Court has] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act. . . . The continuing course of conduct doctrine is conspicuously fact-bound. . . .

“The continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied. . . . [T]he doctrine is generally applicable under circumstances where [i]t may be impossible to pinpoint the exact date of a particular negligent act or omission that caused injury or where the negligence consists of a series of acts or omissions and it is appropriate to allow the course of [action] to terminate before allowing the repose section of the statute of limitations to run

“In sum, a precondition for the operation of the continuing course of conduct doctrine is that the defendant must have committed an initial wrong upon the plaintiff. . . . Second, there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. . . . [T]hat continuing wrongful conduct may include acts of omission as well as affirmative acts of misconduct . . . .” (Citations omitted; internal quotation marks omitted.) Id., 833-35.

We conclude that the court here improperly applied the continuing course of conduct doctrine to the underlying legal malpractice action, which the plaintiff claimed the defendant failed to file in a timely manner. Although the plaintiff satisfied the first prong by alleging in his complaint that Levy negligently prepared and presented the plaintiffs evidence at trial, he failed to satisfy the second prong, which requires consideration of whether there was a genuine issue of material fact with regard to whether Levy owed a continuing duty to the plaintiff related to the initial wrong. The plaintiff and Levy had a fiduciary relationship. “The relationship between an attorney and his client is highly fiduciary in its nature and of a very delicate, exacting, and confidential character, requiring a high degree of fidelity and good faith.” (Internal quotation marks omitted.) Matza v. Matza, 226 Conn. 166, 184, 627 A.2d 414 (1993). In determining whether there was a special relationship, we evaluate whether Levy initiated and engaged in any affirmative conduct after the initial wrong, which includes making promises after the initial wrong or promises to do anything additional in the future, had a fiduciary or contractual relationship with the plaintiff or committed fraud. Sanborn v. Greenwald, supra, 39 Conn. App. 297. Because of Levy’s fiduciary relationship with the plaintiff, he had a duty to prepare and present the plaintiffs evidence properly at trial. See Rules of Professional Conduct 1.1. The duty to prepare and present evidence, however, is not a continuing duty that relates to the initial wrong. The breach of that duty is the initial wrong. There was no allegation against Levy of subsequent wrongful conduct related to the initial wrong. Accordingly, the second prong of the continuing course of conduct test was not satisfied. We conclude, therefore, that the court improperly applied the continuing course of conduct doctrine to the underlying legal malpractice action. The court, however, alternatively concluded that the continuous representation doctrine applied to toll the statute of limitations in the underlying legal malpractice action.

B

Continuous Representation Doctrine

The plaintiff next claims that the court improperly concluded that there was no genuine issue of material fact that the continuous representation doctrine tolled the statute of limitations in the underlying legal malpractice action. Specifically, the plaintiff argues that the continuous representation doctrine has never been recognized or applied in Connecticut in the legal malpractice context. We agree that the continuous representation doctrine never has been applied to legal malpractice actions; however, it was considered and rejected by this court in S.M.S. Textile Mills, Inc. v. Brown, Jacobson, Tillinghast, Lahan & King, P.C., supra, 32 Conn. App. 793.

“In other jurisdictions, the ‘continuous representation rule’ has been defined as follows: it ‘tolls the statute of limitations or defers accrual of the cause of action while the attorney continues to represent the client and the representation relates to the same transaction or subject matter as the allegedly negligent acts.’ ” Id., 791.

The continuous representation doctrine in application is similar to our continuous treatment doctrine. “The continuous treatment doctrine was first recognized in a medical malpractice context in Giambozi v. Peters, [127 Conn. 380, 16 A.2d 833 (1940), overruled in part on other grounds, Foran v. Carangelo, 153 Conn. 356, 360, 216 A.2d 638 (1966)]. [Our Supreme Court] stated in Giambozi that [t]he term malpractice itself may be applied to a single act of a physician or surgeon or, again, to a course of treatment. The Statute of Limitations begins to run when the breach of duty occurs. When the injury is complete at the time of the act, the statutory period commences to run at that time. When, however, the injurious consequences arise from a course of treatment, the statute does not begin to run until the treatment is terminated.” (Internal quotation marks omitted.) Blanchette v. Barrett, supra, 229 Conn. 274.

There is a marked resemblance between the continuous treatment of a patient’s condition by a physician and the continuous representation of a client by an attorney. See Siegel v. Kranis, 29 App. Div. 2d 477, 480, 288 N.Y.S.2d 831 (1968). In both situations, the relationship between the parties is demarcated by the fiduciary relationship of trust and confidence, which continues to develop as the service is provided. Id. The recipient of the medical or legal service is disadvantaged in that the patient does not have the expertise to question the treatment of the physician, and, likewise, a client does not have the expertise to question the tactics and performance of an attorney. Id. The term “continuous treatment” in the context of legal malpractice, however, is inappropriate because an attorney does not “treat” a client’s legal disputes, but rather “represents” a client in such disputes. Therefore, the phrase “continuous representation” is more appropriate in legal malpractice actions.

The policy underpinning the continuous representation doctrine is similar to the policy underlying the continuing course of conduct doctrine, which this court recently applied in the legal malpractice context in Giulietti v. Giulietti, supra, 65 Conn. App. 832-36. Here, Judge Peck ruled that the continuous representation doctrine “reflects a policy of preserving the attorney-client relationship and enabling the attorney to correct, avoid or mitigate the consequences of an apparent error .... The application of the rule to specific facts should be based on whether any of these purposes is furthered. 2 R. Mallen & J. Smith, Legal Malpractice (4th Ed. 1996) § 21.12, p. 815.” (Emphasis added; internal quotation marks omitted.) That policy underlying the continuing representation doctrine is similar to the policy underlying the continuing course of conduct doctrine in that during “an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied.” (Emphasis added.) Blanchette v. Barrett, supra, 229 Conn. 276.

Here, the court stated that “[a]doption of the [continuous representation rule] was a direct reaction to the illogical requirement of the occurrence rule, which compels clients to sue their attorneys although the relationship continues and there has not been and may never be any injury. The rule, limited to the context of continuous representation, also is consistent with the purpose of the statute of limitations, which is to prevent stale claims and enable the defendant to preserve evidence. When the attorney continues to represent the client in the subject matter in which the error occurred, all such objectives are achieved and preserved. The attorney-client relationship is maintained and speculative malpractice litigation is avoided.” (Internal quotation marks omitted.)

We conclude that we should adopt the continuous representation doctrine for several reasons. First, we already permit tolling of the statute of limitations under the continuing course of conduct and continuous treatment doctrines, which are very similar in policy and application to the continuous representation doctrine. Second, to require a client to bring an action before the attorney-client relationship terminates would encourage the client constantly to second-guess the attorney and force the client to obtain other legal opinions on the attorney’s handling of the case. Nothing could be more destructive of the attorney-client relationship, which we strive to preserve. Third, requiring a client to bring a malpractice action against the attorney during the pendency of an appeal from the judgment in an underlying action in which that attorney allegedly committed malpractice could force the client into adopting inherently different litigation postures and thereby compromise the likelihood of success in both proceedings because the client would be defending the attorney’s actions in the appeal and contesting the attorney’s actions in the malpractice action. Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 156-57 (Tex. 1991). Fourth, the policy underlying the statute of limitations is upheld because the conduct that is the subject of legal malpractice actions is generally memorialized in court pleadings or in hearing transcripts and, thus, the dangers associated with delay are lessened. AMFAC Distribution Corp. v. Miller, 138 Ariz. 155, 158, 673 P.2d 795 (App.), aff 'd, 138 Ariz. 152, 673 P.2d 792 (1983) (en banc). Fifth, adoption of the continuous representation doctrine would prevent an attorney from postponing the inevitable event of defeat beyond the statute of limitations period to protect himself from liability for his actions. See Siegel v. Kranis, supra, 29 App. Div. 2d 480. Ultimately, the tolling period would help to prevent disruption of the attorney-client relationship yet still protect the client’s right to bring an action against the attorney for negligence while at the same time allowing the allegedly negligent attorney to correct or minimize the error. We conclude that the continuous representation doctrine may apply to toll the statute of limitations in a legal malpractice action.

In light of our conclusion, we must further determine whether the court here properly applied the continuous representation doctrine to the underlying legal malpractice action that the plaintiff claimed the defendant failed to file in a timely manner. For the continuous representation doctrine to apply to a legal malpractice action and to operate to toll the statute of limitations, the client must show that (1) the attorney continued to represent him and (2) the representation related to the same transaction or subject matter as the allegedly negligent acts. S.M.S. Textile Mills, Inc. v. Brown, Jacobson, Tillinghast, Lahan & King, P.C., supra, 32 Conn. App. 791.

Both of those requirements are met in the underlying legal malpractice action here. The defendant filed the legal malpractice action on behalf of the plaintiff against Levy on December 15, 1995. As we already have noted, there is no question that Levy continued to represent the plaintiff through at least January 31, 1994, a date well within the statute of limitations. See footnote 3. There also is no question that the representation was on the very same case in which the plaintiff claims the malpractice occurred. We conclude therefore that the court properly applied the continuous representation doctrine to the underlying legal malpractice action and found a timely filing.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

       The court noted that the plaintiff had brought a second legal malpractice claim against Levy in the judicial district of Hartford, Docket No. CV 990592695, which currently is pending. The second legal malpractice action against Levy was commenced by service of process on September 3, 1999.

       We do not have to determine whether the statute of limitations was tolled until all appeals on the underlying claim are exhausted; AMFAC Distribution Corp. v. Miller, supra, 138 Ariz. 156; Semenza v. Nevada Medical Liability Ins. Co., 765 P.2d 184, 185 (Nev. 1988); Stephens v. General Motors Corp., 905 P.2d 797, 799 (Okla. 1995); Hughes v. Makaney & Higgins, supra, 821 S.W.2d 157; or until the representation ends. See, e.g., Blanchette v. Barrett, supra, 229 Conn. 274-75. Levy still represented the plaintiff at least through January 31, 1994, the day before we decided the first appeal. Rosenfield v. Cymbala, supra, 33 Conn. App. 931. That date is well within the three year statute of limitations, as the action in question, filed by the defendant, was commenced on December 15, 1995.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE OF CONNECTICUT v. DAVID N. SMITH
    (AC 22202)
    Schaller, Mihalakos and Hennessy, Js.
    Argued February 13
    officially released April 16, 2002

      Donald D. Dakers, special public defender, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were Paul E. Murray, state’s attorney, and Elizabeth C. Learning, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant appeals from the judgment of conviction of two counts of aggravated sexual assault in the first degree in violation of General Statutes § 53a-70a (a) (1) and one count of kidnapping in the first degree with a firearm in violation of General Statutes § 53a-92a (a). The defendant also was charged in part B of the information with being a persistent dangerous felony offender under General Statutes (Rev. to 1995) § 53U-40. The appeal was originally brought to our Supreme Court and was transferred to this court. The defendant claims that the trial court improperly failed to grant him a probable cause hearing with respect to the offenses charged pursuant to article first, § 8, of the constitution of Connecticut, as amended by articles seventeen and twenty-nine of the amendments, and General Statutes § 54-46a (a). The defendant argues that because he was charged with various felony offenses and also with being a persistent dangerous felony offender on the basis of prior sexual assault convictions in 1983 and 1973, he was exposed to a potential life sentence. The defendant contends that State v. Lewis, 176 Conn. 270, 407 A.2d 955 (1978), which the parties agree is controlling, was incorrectly decided by our Supreme Court. In Lewis, although the court determined that the state was required to obtain a grand jury indictment under article first, § 8, of the Connecticut constitution, and that the defendant could not be sentenced as a persistent dangerous felony offender, the court ruled that that jurisdictional defect did not affect the conviction on the substantive offense and ordered the dismissal of the second part of the information. Id., 273. Here, the defendant argues that the state’s failure to conduct a probable cause hearing deprived the court of jurisdiction over the substantive offenses. The defendant recognizes that we are bound by the decisions of our Supreme Court and are not in a position to “reconsider” the decision in Lewis. See Boretti v. Panacea Co., 67 Conn. App. 223, 231, 786 A.2d 1164 (2001), cert. denied, 259 Conn. 918, 791 A.2d 565 (2002). The defendant has failed to offer any other reasons why the judgment should be reversed.

The judgment is affirmed.

       In 1982, article seventeen of the amendments to the constitution of Connecticut amended article first, § 8, replacing the prior requirement that any defendant accused of committing a crime punishable by death or life imprisonment be charged by way of “an indictment of a grand jury” with the requirement that such prosecutions proceed only upon “probable cause shown at a hearing . . . .”

       General Statutes (Rev. to 1995) § 53a-40 provides in relevant part: “(a) A persistent dangerous felony offender is a person who (1) stands convicted of manslaughter, arson, kidnapping, sexual assault in the first or third degree, aggravated sexual assault in the first degree, sexual assault in the third degree with a firearm, robbery in the first or second degree, or assault in the first degree, and (2) has been, prior to the commission of the present crime, convicted of and imprisoned under a sentence to a term of imprisonment of more than one year . . . for any of the following crimes: (A) The crimes enumerated in subdivision (1) of this subsection ... or (B) prior to October 1, 1975, any of the crimes enumerated in section 53a-72 ....
      * 4: **
      “(f) When any person has been found to be a persistent dangerous felony offender . . . the court . . . shall sentence such person to a term of imprisonment of not more than forty years and, if such person has, at separate times prior to the commission of the present crime, been twice convicted of and imprisoned for any of the crimes enumerated in subdivision (2) of subsection (a) of this section, sentence such person to a term of imprisonment of not more than life. . . .”


author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. TADEO POLANCO
    (AC 21251)
    Schaller, Bishop and Shea, Js.

      Argued January 18
    officially released April 16, 2002

      Norman A. Pattis, for the appellant (defendant).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Patrick J. Griffin, assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

In this case, which is the companion to State v. Diaz, 69 Conn. App. 187, 793 A.2d 1204 (2002), Tadeo Polanco, one of two codefendants, appeals from the judgment of conviction, rendered after a jury trial, of possession of cocaine with intent to sell in violation of General Statutes § 21a-278 (a), possession of cocaine with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b) and interfering with a search in violation of General Statutes § 54-33d. On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction of the cocaine charges and, therefore, the court improperly denied his motion for a judgment of acquittal, and (2) the court improperly admitted into evidence a computer generated map showing that the location where he and the cocaine had been seized was within 1500 feet of a school. We affirm the judgment of the trial court.

On March 29, 2000, the state charged the defendant, by substitute information, as follows: count one, possession of cocaine with intent to sell in violation of § 21a-278 (a); count two, possession of cocaine with intent to sell in violation of § 21a-278 (a); count three, possession of cocaine with intent to sell within 1500 feet of a school in violation of § 21a-278a (b); count four, possession of cocaine with intent to sell within 1500 feet of a school in violation of § 21a-278a (b); and count five, interfering with a search in violation of § 54-33d. The defendant entered a plea of not guilty to each of the five charges and elected a jury trial.

On the basis of the evidence admitted during the defendant’s trial, the jury reasonably could have found the facts that follow. On June 4,1999, at approximately noon, Robert Cizauskas and Stephen Hunt, officers in the Waterbury police department, traveled in an unmarked police vehicle to the vicinity of 133 Hillside Avenue, Waterbury. Upon arriving, Cizauskas and Hunt began conducting “preraid surveillance” in preparation for the execution of a search warrant, the scope of which included 133 Hillside Avenue, apartment 2A. At approximately 12:45 p.m., the officers saw the defendant and his codefendant, Herman Diaz, exit the building. The defendant was carrying a black plastic bag, and Diaz was carrying a light colored plastic bag. The two men walked across the street and entered a parked, tan Oldsmobile. A few minutes later, the defendant and Diaz exited the Oldsmobile, crossed the street and returned to the building. Neither was carrying either of the plastic bags.

Fifteen minutes later, the Waterbury police officers who had been assigned to execute the warrant arrived at the scene. Two of them, Lawrence Smith and Robert Jones, entered the building and located apartment 2A. Smith knocked on the front door and announced, “Police with search warrant.” Smith and Jones both heard noises and voices emanating from the apartment, but no one answered the door. Smith knocked and announced his presence again, but still no one answered. Finally, Jones, using force, gained entry to the apartment.

Immediately upon entering the apartment, Jones saw the defendant running directly at him and heard him yelling, “Policia, policia!” The defendant collided with Jones and grabbed Jones’ vest. Both fell to the floor and began wrestling. Moments later, Jones subdued and handcuffed the defendant. Smith, who had begun conducting a protective sweep of the apartment, saw Diaz running from the front bedroom. Smith detained him. No one else was found in the apartment.

The police then searched the apartment, which was sparsely furnished and contained few personal belongings. In the front bedroom, Jones removed one of the ceiling panels, revealing eight plastic bags wrapped in paper towels. Each plastic bag contained crack cocaine. While searching the closet in the middle bedroom, Smith discovered $580 in the pocket of a coat. Timothy Kluntz, a Waterbury police detective, searched the kitchen. There, he discovered a metal pot containing cocaine residue and several other items commonly associated with the production of crack cocaine, including a box of plastic bags, two opened boxes of baking soda, paper towels and a strainer. In a cluster on the kitchen counter, Kluntz found Diaz’s social security card, Diaz’s alien registration card and a sheet of paper listing certain drug sales.

The officers then searched the defendant and Diaz. On each of them, the officers found a key that fit the door to the apartment. The officers did not find any items commonly associated with the use of cocaine in the apartment or on the person of either the defendant or Diaz. Afterward, the officers transported the defendant and Diaz to the police station.

The state brought counts two and four against the defendant in response to the crack cocaine that the police had discovered in the ceiling of the apartment. The state brought the first and third counts against the defendant in response to allegations by the police that they later discovered crack and powder cocaine in the tan Oldsmobile parked across the street from the apartment. The fifth count was brought in response to the collision and scuffle that the defendant had caused with Jones.

On April 12, 2000, the jury returned a verdict of guilty as to counts two, four and five, but remained deadlocked on counts one and three. The court declared a mistrial on counts one and three, accepted the verdict on counts two, four and five, and rendered judgment accordingly. The defendant later was sentenced to a total effective term of twenty-four years imprisonment. This appeal followed. Additional facts and procedural history will be presented as necessary.

I

The defendant claims that the evidence was insufficient to support his conviction on the cocaine charges and, therefore, the court improperly denied his motion for a judgment of acquittal. Specifically, the defendant argues that the evidence was insufficient to support a finding that he had possessed the crack cocaine that was seized from the apartment. In furtherance of that argument, the defendant claims that the evidence provides greater support for the conclusion that Diaz exclusively possessed the apartment and the cocaine, and that the defendant was an innocent, confused bystander.

“In reviewing a sufficiency of the evidence claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. ... As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Citations omitted; internal quotation marks omitted.) State v. Berger, 249 Conn. 218, 224-25, 733 A.2d 156 (1999).

“In order to prove illegal possession of a narcotic substance, it is necessary to establish that the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it. . . . Where, as here, the cocaine was not found on the defendant’s person, the state must proceed on the theory of constructive possession, that is, possession without direct physical contact. . . . One factor that may be considered in determining whether a defendant is in constructive possession of narcotics is whether he is in possession of the premises where the narcotics are found. . . . Where the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.” (Citations omitted; internal quotation marks omitted.) Id., 225.

In the present case, the state did not claim that the defendant was in exclusive possession of the apartment where the crack cocaine was found. Consequently, the jury could not have reasonably concluded that the defendant had constructively possessed the crack cocaine, namely, that he had known of its presence and had control over it, “unless there [were] other incriminating statements or circumstances tending to buttress such an inference.” (Internal quotation marks omitted.) Id. We conclude that there were other incriminating circumstances from which the jury reasonably could have concluded that the defendant had constructively possessed the cocaine.

During the trial, the state called Domingo Toro, the superintendent of the apartment building, as a witness. Toro testified as follows. In the month preceding the raid, Diaz leased the apartment and paid $800 for rent and a security deposit. After Diaz moved in, Toro visited Diaz in the apartment and saw that it still was unfurnished except for a little table and a television. Thereafter, he lent Diaz a couch and later observed the defendant help Diaz move that couch into the apartment. Afterward, Diaz informed him that he and the defendant were friends and that the defendant, too, would be living in the apartment. The state also called Kluntz and Cizauskas. Kluntz testified that while searching the defendant, he found and seized a key from the defendant’s person, and that key fit the door to the apartment. Cizauskas testified as follows. While surveilling the apartment in preparation for the search, he saw the defendant and Diaz leave the apartment and return to it. Furthermore, the state presented police testimony indicating that the apartment contained two mattresses, one in each bedroom. When the foregoing evidence is construed in the light most favorable to sustaining the verdict, it establishes that the defendant shared possession of the apartment with Diaz.

The state presented the following evidence linking the defendant to the crack cocaine found in the apartment. Prior to gaining entry into the apartment, Smith knocked and announced twice, each time yelling, “Police with a search warrant!” Jones heard noises and voices emanating from the apartment, but no one answered the door. After gaining entry by using force, Jones immediately saw the defendant running directly at him and heard him yelling, “Policia, policia!” The defendant collided with him and grabbed his vest.

After securing the apartment, the police searched it thoroughly. No one other than the defendant and Diaz were found in the apartment, which was sparsely furnished and contained few personal belongings. On the kitchen counter, Kluntz found and seized plastic bags, open boxes of baking soda, paper towels, a strainer, a sheet of paper listing drug sales and a metal pot containing cocaine residue. In the ceiling of the front bedroom, Jones discovered $8000 worth of crack cocaine packaged in eight plastic bags, which, in turn, were wrapped in paper towels. While searching the closet in the middle bedroom, Smith discovered $580 in the pocket of a coat. To access either of the bedrooms, one first had to pass through the kitchen. Michael Gugliotti, a sergeant in the Waterbury police department, testified that the items found on the kitchen counter were “consistent with an individual that would convert a powder cocaine into crack cocaine.”

When the foregoing evidence is construed in the light most favorable to sustaining the verdict, it supports the following factual findings. The apartment primarily was used to produce and store crack cocaine. Powder cocaine was converted to crack cocaine in the kitchen, and that crack cocaine then was stored in the ceiling of the front bedroom. The proceeds from the sales of the crack cocaine generally were kept in a coat, which was stored in the closet of the middle bedroom. When the defendant yelled, “Policia, policía,” and charged at Jones, he was attempting to prevent him and other police officers from searching the apartment.

Those findings establish the existence of additional incriminating circumstances that buttress an inference that the defendant knew of, and had control over, the crack cocaine. The evidence was adequate to support a finding that the defendant had constructively possessed the crack cocaine. Thus, we conclude that the evidence was sufficient to support his conviction on the cocaine charges and that the court properly denied the defendant’s motion for a judgment of acquittal.

II

Next, the defendant claims that the court improperly admitted into evidence a computer generated map showing that the distance between the apartment at 133 Hillside Avenue and the nearest school was less than 1500 feet. Specifically, the defendant argues that the court improperly admitted the map under the business records exception to the hearsay rule because (1) the sole witness through whom the state had attempted to lay an adequate foundation (a) did not prepare the map and (b) lacked sufficient knowledge concerning the technology that had been used to generate the map, and (2) the state had failed to establish that the technology that had been used, namely, a global positioning satellite system, an aerial photography system and a computer program, was reliable. We disagree.

The following additional procedural history is relevant to our resolution of the defendant’s claims. During its case-in-chief, the state offered, as a full exhibit, a computer generated map showing that the distance between the apartment at 133 Hillside Avenue and the nearest school was less than 1500 feet. Recognizing that the map was hearsay, the state requested that the court admit the map pursuant to either the business records or public records exception to the hearsay rule. The defendant and Diaz each raised several objections in response. The following objections were raised: (1) the requirements for admission under the business records exception had not been satisfied; (2) the state had not laid an adequate foundation “as to the accuracy of the map and where the information on the map comes from”; (3) during its offer of proof, the state failed to establish that the technology that had been used to generate the map was rehable; and (4) the map had been prepared by the city of Waterbury for purposes of litigation and, therefore, could not be admitted under the public records exception.

The court overruled those objections and admitted the map into evidence under the business records exception to the hearsay rule. In so doing, the court stated: “[T]his map is being offered by the state for the sole purpose of presenting evidence to support the state’s contention that 133 Hillside Avenue, apartment 2A, is within 1500 feet of a school district, in particular to the Driggs School. This exhibit is admitted solely for that purpose.”

The record discloses that the state, during its offer of proof, presented evidence in response to the objections raised by the defendant and Diaz. Specifically, the state called Steven Santovasi, a geographic information systems technician, as a witness. Santovasi testified as follows. He was employed by the city of Waterbury bureau of engineering for sixteen years. His daily responsibilities included maintaining maps of Waterbury for use by various municipal departments and administering a system “that contain[ed] the locations of everything within the city.” In response to a request by the office of the state’s attorney, he prepared a map of Waterbury for the present case showing Driggs School, a radius of 1500 feet around that school and 133 Hillside Avenue. He identified state’s exhibit eighteen as the map he had produced pursuant to that request, and stated that it fairly and accurately represented the area as it appeared on June 4,1999, and that he had prepared it approximately one month before trial in the regular course of his business.

Santovasi generated the map using the computer system he administered. He did not simply “print it out.” Due to Waterbury’s large area, the computerized map consists of 799 small maps (grids) that are stored in a digital library. Those grids can be assembled in various ways. Santovasi assembled state’s exhibit eighteen using several contiguous grids that corresponded to the area in which the state had expressed interest. After assembling the grids, he “created a circle 1500 feet around the center point of the school.” He blackened the school and generated a rectangle around 133 Llillside Avenue. The map merely shows a relative distance, as it does not indicate the specific distance between Driggs School and 133 Hillside Avenue. The map was generated using data relied on by Waterbury for utility information, zone information and soil information.

The underlying system that was used to produce the map included control points that had been established throughout Waterbuiy, the location of which had been identified accurately through the use of global positioning satellites. Aerial photographs were then taken and a method known as triangulation was used.

We now set forth the legal principles that govern our analysis of the defendant’s claim that the map failed to qualify for admission under the business records exception.

“A trial court’s ruling on the admissibility of evidence is entitled to great deference and will be overturned only if a clear abuse of the court’s discretion is shown and the defendant shows that the ruling caused substantial prejudice or injustice.” State v. Lewis, 245 Conn. 779, 804 n.23, 717 A.2d 1140 (1998). An appellate tribunal is required to make every reasonable presumption in favor of upholding the trial court’s ruling. Id., citing State v. Hines, 243 Conn. 796, 801, 709 A.2d 522 (1998).

“To be admissible under the business record exception to the hearsay rule, a trial court judge must find that the record satisfies each of the three conditions set forth in. . . . [General Statutes] § 52-180. The court must determine, before concluding that it is admissible, that the record was made in the regular course of business, that it was the regular course of such business to make such a record, and that it was made at the time of the act described in the report, or within a reasonable time thereafter. ... In applying the business records exception, the statute [§ 52-180] should be liberally interpreted. ... In part, this is because the statute recognizes the inherent trustworthiness of documents created for business rather than litigation purposes.” (Citation omitted; internal quotation marks omitted.) Calcano v. Calcano, 257 Conn. 230, 240-41, 777 A.2d 633 (2001); see also Conn. Code Evid. § 8-4.

“Once these criteria have been met by the party seeking to introduce the record, however, it does not necessarily follow that the record itself is generally admissible, nor does it mean that everything in it is required to be admitted into evidence. . . . [T]he information contained in the report must be based on the entrant’s own observation or on information of others whose business duty it was to transmit it to the entrant. ... If the information does not have such a basis, it adds another level of hearsay to the report which necessitates a separate exception to the hearsay rule in order to justify its admission.” (Internal quotation marks omitted.) State v. Berger, supra, 249 Conn. 231; see Conn. Code Evid. § 8-4 commentary. That requirement aids in ensuring that exhibits admitted under the business records exception satisfy a minimum threshold of reliability. See American Oil Co. v. Valenti, 179 Conn. 349, 358, 426 A.2d 305 (1979). Nevertheless, an exhibit admitted under the business records exception is not presumed to be accurate, and its credibility remains a question for the trier of fact. See id.

In the present case, two of the three arguments advanced by the defendant on appeal actually relate more directly to the legal principles that control the admissibility of computer generated exhibits. The defendant challenges the admission of the computer generated map on three grounds: (1) the witness, Santovasi, did not prepare the map himself, (2) Santovasi lacked sufficient knowledge concerning the technology that had been used to generate the map and (3) the state failed to establish that the technology that had been used was reliable. The second and third grounds implicate the manner in which our courts are confronting the increased prevalence of computer generated exhibits in the courtroom. Cf. id., 357-61; Federal Deposit Ins. Corp. v. Carabetta, 55 Conn. App. 369, 376,

739 A.2d 301, cert. denied, 251 Conn. 927, 742 A.2d 362 (1999).

Computer generated exhibits present “structural questions of reliability that transcend the reliability of the underlying information that is entered into the computer.” American Oil Co. v. Valenti, supra, 179 Conn. 358. To accommodate that heightened concern, a court is not permitted to admit a computer generated exhibit into evidence unless the proffering party also (1) presents a witness whose knowledge of computers is sufficient to enable direct and cross-examination concerning the process used to generate the exhibit and (2) lays a foundation, through that witness, sufficient to support a finding that the process and equipment involved in generating the exhibit were adequate for that purpose. See id., 359-60) Federal Deposit Ins. Corp. v. Carabetta, supra, 55 Conn. App. 376 (in addition to satisfying requirements of business records exception, party proffering computer record must establish that basic elements of computer system are reliable). With that two part test in mind also, we now address the defendant’s claims.

A

The defendant first claims that Santovasi did not prepare the map himself. To the contrary, the evidence indicates that he, in fact, generated the map using data maintained by the city of Waterbury in its computers. In River Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn. 787, 794, 595 A.2d 839 (1991), our Supreme Court stated: “The witness whose testimony provides the foundation for the admission of a business record must testify to the three statutory requirements, but it is not necessary that the record sought to be admitted was made by that witness or even that the witness have been employed by the business at the time the record was made.” Thus, Santovasi did not even have to prepare the map to be eligible to provide the foundation for its admission into evidence under the business records exception. See also General Statutes § 52-180 (b); Conn. Code Evid. § 8-4.

B

The defendant next argues that Santovasi, the sole witness through whom the state had attempted to lay a proper foundation, lacked sufficient knowledge concerning the technology that had been used to generate the map.

In addressing a similar challenge, our Supreme Court provided the following additional guidance for use when considering whether a witness had sufficient knowledge of computers to be capable of affording a threshold degree of reliability to an exhibit that had been computer generated: “What is crucial is not the witness’ job description but rather his knowledgeability about the basic elements that afford reliability to computer printouts. . . . The witness must be a person who is familiar- with computerized records not only as a user but also as someone with some working acquaintance with the methods by which such records are made.” (Citation omitted.) American Oil Co. v. Valenti, supra, 179 Conn. 360-61.

The record in the present case discloses that Santovasi was thoroughly familiar with computer generated maps and had considerable working knowledge of the methods used to generate them. Santovasi also was well acquainted with the technology involved in collecting and compiling the data a computer uses when generating a map. He therefore had knowledge sufficient to allow for meaningful direct and cross-examination concerning computer generated maps. For the foregoing reasons, we conclude that Santovasi was capable of affording a threshold degree of reliability to the map and, accordingly, reject the defendant’s claim to the contrary.

C

Finally, the defendant argues that the state, in attempting to lay a proper foundation, failed to establish that the technology that had been used to generate the map, namely, a global positioning satellite system, an aerial photography system and a computer program, was reliable.

The record discloses that Santovasi testified that the map fairly and accurately depicted the section of Waterbury at issue as that section had appeared on June 4, 1999. Santovasi testified also that the control points on which the city’s computer system relied had been identified accurately through the use of global positioning satellites. That testimony, together with Santovasi’s detailed description of the city’s computer system, which he himself administered, gave rise to an inference that the hardware and software used to generate the map were not only adequate for that purpose but also had been designed for that purpose. Thus, through Santovasi, the state succeeded in laying a foundation sufficient to support a finding that the process and equipment involved in generating the map were adequate for that purpose. More specific testimony concerning the underlying technology was unnecessary, and any remaining doubt as to the reliability of that technology went to the weight to be given the map, not its admissibility. Therefore, we conclude that the court did not abuse its discretion in admitting the map into evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (a) provides in relevant part: “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 one or more preparations, compounds, mixtures or substances containing an aggregate weight of one ounce ormore of heroin, methadone or cocaine or an aggregate weight of one-half gram or more of cocaine in a free-base form or a substance containing five milligrams or more of lysergic acid diethylamide, except as authorized in this chapter, and who is not, at the time of such action, a drug-dependent person, shall be imprisoned for a minimum term of not less than five years nor more than twenty years; and, a maximum term of life imprisonment. . ."

       General Statutes § 21a-278a (b) provides in relevant part: “Any person who violates section 21a-277 or 21a-278 by manufacturing, distributing, selling, prescribing, dispensing, compounding, transporting with the intent to sell or dispense, possessing with the intent to sell or dispense, offering, giving or administering to another person any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school, a public housing project or a licensed child day care center, as defined in section 19a-77, that is identified as a child day care center by a sign posted in a conspicuous place shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. To constitute a violation of this subsection, an act of transporting or possessing a controlled substance shall be with intent to sell or dispense in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school, a public housing project or a licensed child day care center, as defined in section 19a-77, that is identified as a child day care center by a sign posted in a conspicuous place. . . .”

       General Statutes § 54-33d provides: “Any person who forcibly assaults, resists, opposes, impedes, intimidates or interferes with any person authorized to serve or execute search warrants or to make searches and seizures while engaged in the performance of his duties with regard thereto or on account of the performance of such duties, shall be fined not more than one thousand dollars or imprisoned not more than one year or both; and any person who in committing any violation of this section uses any deadly or dangerous weapon shall be fined not more than ten thousand dollars or imprisoned not more than ten years or both.”

       The total weight of the crack cocaine was 221.6 grams, and it had a street value of $8000.

       On the basis of those same two assertions, the defendant argues that the map was not otherwise admissible under the public records exception to the hearsay rule. Also, we note that the defendant, during oral argument, raised the following additional claim. An exhibit that is based, at least in part, on information obtained from a person who is not a public official is inadmissible under the public records exception to the hearsay rule, and, therefore, the computer generated map is not admissible under that exception to the hearsay rule.
      In light of our resolution of the defendant’s claim under the business records exception, we need not address his claim premised on the public records exception to the hearsay rule.

       General Statutes § 52-180 provides in relevant part: “(a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.
      “(b) The writing or record shall not be rendered inadmissible by (1) a party’s failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party’s failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility.”

       We note that a “question as to the timeliness of the creation of [a computer] record is answered by observing that the time requirement refers to when the entry into the data bank was originally made, not the time the printout was produced.” 2 C. McCormick, Evidence (5th Ed. 1999) § 294, p. 269.

       We recognize, however, that “[w]ith regard to documents prepared for use in litigation, the arrangement of the data in a form designed to aid litigation should not result in exclusion if the data and the retrieval process are themselves reliable.” (Emphasis added.) 2 C. McCormick, Evidence (5th Ed. 1999) § 294, p. 269; see also Jefferson Garden Associates v. Greene, 202 Conn. 128, 140-41, 520 A.2d 173 (1987) (even document prepared for litigation may be admitted under General Statutes § 52-180 provided it bears circumstantial indicia of trustworthiness).


text:
    STATE OF CONNECTICUT v. HERMAN DIAZ
    (AC 21332)
    Schaller, Bishop and Shea, Js.
    Argued January 11
    officially released April 16, 2002

      Brian D. Russell, special public defender, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Patrick J. Griffin, assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

In this case, which is the companion to State v. Polanco, 69 Conn. App. 169, 797 A.2d 523 (2002), Herman Diaz, one of two codefendants, appeals from the judgment of conviction, rendered after a jury trial, of possession of cocaine with intent to sell in violation of General Statutes § 21a-278 (a) and possession of cocaine with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b). On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction and, therefore, the court improperly denied his motion for a judgment of acquittal and (2) the court improperly denied his motion to sever his trial from that of his codefendant, Tadeo Polanco. We affirm the judgment of the trial court.

On March 29, 2000, the state charged the defendant, by substitute information, as follows: count one, possession of cocaine with intent to sell in violation of § 21a-278 (a); count two, possession of cocaine with intent to sell in violation of § 21a-278 (a); count three, possession of cocaine with intent to sell within 1500 feet of a school in violation of § 21a-278a (b); count four, possession of cocaine with intent to sell within 1500 feet of a school in violation of § 21a-278a (b). The defendant entered a plea of not guilty to each of the four charges and elected a jury trial.

On the basis of the evidence admitted during the defendant’s trial, the jury reasonably could have found the facts that follow. On June 4,1999, at approximately noon, Robert Cizauskas and Stephen Hunt, officers in the Waterbury police department, traveled in an unmarked police vehicle to the vicinity of 133 Hillside Avenue, Waterbury. Upon arriving, Cizauskas and Hunt began conducting “preraid surveillance” in preparation for the execution of a search warrant, the scope of which included 133 Hillside Avenue, apartment 2A. At approximately 12:45 p.m., the officers saw the defendant and Polanco exit the building. The defendant, who was shirtless, was carrying a light colored plastic bag, and Polanco was carrying a black plastic bag. The two men walked across the street and entered a parked, tan Oldsmobile. A few minutes later, the defendant and Polanco exited the Oldsmobile, crossed the street and returned to the building. Neither was carrying either of the plastic bags.

Fifteen minutes later, the Waterbury police officers who had been assigned to execute the warrant arrived at the scene. Two of them, Lawrence Smith and Robert Jones, entered the building and located apartment 2A. Smith knocked on the front door and announced, “Police with search warrant.” Smith and Jones both heard noises and voices emanating from the defendant’s apartment, but no one answered the door. Smith knocked and announced his presence again, but still no one answered. Finally, Jones, using force, gained entry to the apartment.

Immediately upon entering the apartment, Jones saw Polanco running directly at him and heard him yelling, “Policia, policial” Polanco collided with Jones, and both fell to the floor and began wrestling. Moments later, Jones subdued and handcuffed Polanco. Smith, who since had begun conducting a protective sweep of the apartment, saw the defendant, who was shoeless and still shirtless, running from the front bedroom. Smith detained the defendant. No one else was found in the apartment.

The police then searched the apartment. In the front bedroom, Jones removed one of the ceiling panels, revealing eight plastic bags wrapped in paper towels. Each plastic bag contained crack cocaine. While searching the closet in the middle bedroom, Smith discovered $580 in the pocket of a coat. Timothy Kluntz, a Waterbury police detective, searched the kitchen. There, he discovered a metal pot containing cocaine residue and several other items commonly associated with the production of crack cocaine, including a box of plastic bags, two opened boxes of baking soda, paper towels and a strainer. In a cluster on the kitchen counter, Kluntz found the defendant’s social security card, the defendant’s alien registration card and a sheet of paper listing certain drug sales.

The officers then searched the defendant and Polanco. On each of them, the officers found a key that fit the door to the apartment. The officers did not find any items commonly associated with the use of cocaine in the apartment or on the person of either the defendant or Polanco. Afterward, when it was time for the officers to transport the defendant and Polanco to the police station, an officer asked the defendant, who still was shoeless and shirtless, where his clothes were. The defendant replied that his clothes were in the front bedroom, which he identified as his room. The officers permitted the defendant to retrieve a shirt and a pair of shoes from the front bedroom, and transported him and Polanco to the station.

The state brought counts two and four against the defendant in response to the crack cocaine that the police had discovered in the ceiling of the apartment. The state brought the first and third counts against the defendant in response to allegations by the police that they later discovered crack and powder cocaine in the tan Oldsmobile parked across the street from the apartment.

On April 11, 2000, the jury returned a verdict of guilty as to counts two and four, and not guilty as to counts one and three. The court accepted the verdict and rendered judgment accordingly. The defendant later was sentenced to a total effective term of eighteen years imprisonment. This appeal followed. Additional facts and procedural history will be presented as necessary.

I

The defendant claims that the evidence was insufficient to support his conviction and, therefore, the court improperly denied his motion for a judgment of acquittal. Specifically, the defendant argues that the evidence was insufficient to support a finding that he had possessed the crack cocaine seized from his apartment. In furtherance of that argument, the defendant claims that the state did not prove that he had known that crack cocaine was present in the apartment and that he had exercised dominion and control over it. Additionally, the defendant claims that the evidence was insufficient because none of the witnesses presented at his trial had seen him place the crack cocaine in, or retrieve it from, the ceiling.

“In reviewing a sufficiency of the evidence claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. ... As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Citations omitted; internal quotation marks omitted.) State v. Berger, 249 Conn. 218, 224-25, 733 A.2d 156 (1999).

“In order to prove illegal possession of a narcotic substance, it is necessary to establish that the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it. . . . Where, as here, the cocaine was not found on the defendant’s person, the state must proceed on the theory of constructive possession, that is, possession without direct physical contact. . . . One factor that may be considered in determining whether a defendant is in constructive possession of narcotics is whether he is in possession of the premises where the narcotics are found. . . . Where the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.” (Citations omitted; internal quotation marks omitted.) Id., 225.

In the present case, the state did not claim that the defendant was in exclusive possession of the apartment where the crack cocaine was found. Consequently, the juiy could not have reasonably concluded that the defendant had constructively possessed the crack cocaine, namely, that he had known of its presence and had control over it, “unless there [were] other incriminating statements or circumstances tending to buttress such an inference.” (Internal quotation marks omitted.) Id. We conclude that there were other incriminating circumstances from which the jury reasonably could have concluded that the defendant had constructively possessed the cocaine.

During the trial, the state called Domingo Toro, the superintendent of the apartment building, as a witness. Toro testified that in the month preceding the raid, the defendant leased the apartment and paid $800 for rent and a security deposit. The state also introduced a utility bill for the apartment, which was in the defendant’s name, and other evidence indicating that the defendant had requested electric service one week before the search. Kluntz testified that he had seized a key from the defendant while searching him and, using that key, had unlocked the door to the apartment. Also, evidence indicated that the defendant was in the apartment shortly before and during the search, and that the officers had observed him running from the front bedroom, where the crack cocaine later was found, moments after they had forced entry into the apartment. The defendant told the officers that his clothing was in the front bedroom and that the front bedroom was his. The defendant’s social security card and alien registration card were found on the kitchen counter within inches of a sheet of paper listing drug sales. Michael Gugliotti, a sergeant in the Waterbury police department, testified that the other items found on the kitchen counter, i.e., the metal pot containing cocaine residue, the plastic bags, the opened boxes of baking soda, the paper towels and the strainer, were “consistent with an individual that would convert a powder cocaine into crack cocaine.”

Construing that evidence in the light most favorable to sustaining the verdict, the jury reasonably could have found that the crack cocaine that the police had found in the ceiling of the defendant’s bedroom had been manufactured in the kitchen. Also, the jury reasonably could have inferred from the location of the defendant’s social security card and alien registration card that the defendant had been involved in the manufacturing process. Those findings tend to buttress an inference by the jury that the defendant knew of, and had control over, the crack cocaine. We conclude that the evidence was adequate to support a finding that the defendant had constructively possessed the crack cocaine and, thus, the corut properly denied the defendant’s motion for a judgment of acquittal.

II

Next, the defendant claims that the court improperly declined to sever his trial from that of his codefendant, Polanco. In support of his claim, the defendant makes two assertions: (1) during the hearing on his motion to sever, he established that his defense and Polanco’s defense were antagonistic and, therefore, the court improperly denied his motion to sever; and (2) as the joint trial progressed, he was substantially prejudiced when the court admitted certain evidence that would not have been admissible at his trial had he been tried separately. We reject the defendant’s claims.

The standard of review of a court’s decision to deny a motion to sever is well settled. “[W]hether to consolidate or sever the trials of defendants involved in the same criminal incident lies within the sound discretion of the trial court. . . . Ordinarily justice is better sub-served where parties are tried together. . . . Joint dials of persons jointly indicted or informed against are the rule, and separate trials the exception resting in the discretion of the court. ... A separate trial will be ordered where the defenses of the accused are antagonistic, or evidence will be introduced against one which will not be admissible against others, and it clearly appears that a joint trial will probably be prejudicial to the rights of one or more of the accused. . . . [T]he phrase prejudicial to the rights of the [accused] means something more than that a joint trial will probably be less advantageous to the accused than separate trials.” (Internal quotation marks omitted.) State v. Booth, 250 Conn. 611, 620, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000).

A

We first review the court’s decision to deny the defendant’s motion for severance. In so doing, we are mindful that our review must be based solely on the information provided to the court at the time the motion was considered. See id., 620-21; see also State v. Smith, 201 Conn. 659, 669, 519 A.2d 26 (1986) (“[t]he discretion of the court is necessarily exercised before the trial begins and with reference to the situation as it then appears to the court”). “The test for the trial court is whether substantial injustice is likely to result unless a separate trial be accorded.” State v. Booth, supra, 250 Conn. 620.

The following procedural history is relevant. During voir dire, the defendant filed a motion to sever. During the hearing on that motion, the court engaged the defendant’s counsel in the following colloquy:

“The Court: When you say that the defenses will be antagonistic, in what way do you mean they will be antagonistic?
“[Defense Counsel]: I can foresee a situation where—
“The Court: I don’t want you to indicate what you can foresee. The joint trial is the rule, severance is the exception. The court has the discretion to sever the cases only upon a clear showing of manifest injustice, severe prejudice. You’ve moved for severance. . . . [I]t is your burden to show that those conditions exist which would warrant the severance.
“[Defense Counsel]: I agree with you, and the antagonistic defenses come into play because ... if the drugs belong to anybody in that apartment and if they weren’t his, they had to be the other person’s. . . .
“The Court: Doesn’t the case law say that the defenses have to be mutually exclusive? I haven’t heard that; just the fact that one defendant points the finger at another does not create two mutually exclusive defenses. . . . Your client is simply saying that [the drugs] were not his and he didn’t know how they got there. He can’t even affirm that they ever were there.
“[Defense Counsel]: Right, but now he knows—
“The Court: He’s not going to testify that [the drugs] were [Polanco’s]. He’s not going to testify that he saw [Polanco] put them there.
“[Defense Counsel]: He’s not going to say that he saw Polanco put the narcotics there, no.”

The court denied the defendant’s motion to sever, finding that the defenses were not antagonistic. A few days later, as voir dire was continuing, the defendant renewed his motion to sever. As he did not present any new arguments, the court denied the renewed motion.

The court was correct in its determination that the defenses were not antagonistic. “When . . . the jury can reasonably accept the core of the defense offered by either defendant only if it rejects the core of the defense offered by his codefendant, the defenses are sufficiently antagonistic to mandate separate trials. ... To compel severance the defenses must be antagonistic to the point of being irreconcilable and mutually exclusive. . . . Such compelling prejudice does not arise where the conflict concerns only minor or peripheral matters which are not at the core of the defense.” (Citation omitted; internal quotation marks omitted.) Id., 621. Moreover, “[w]here proof of the charges against the defendants is dependent upon the same evidence and alleged acts . . . severance should not be granted except for the most cogent reasons.” (Internal quotation marks omitted.) Id., 622.

In the present case, the defendant failed to offer any persuasive information to substantiate his claim of antagonistic defenses. “[I]t is the party’s responsibility to present information to the court from which it can determine whether the defenses are going to be antagonistic . . . .” (Internal quotation marks omitted.) Id., 621. Furthermore, our Supreme Court has stated that mere assertions are insufficient to overcome the preference for a joint trial. See, e.g., id.; State v. Varricchio, 176 Conn. 445, 449-50, 408 A.2d 239 (1979) (defenses not antagonistic even though defendants asserted they were). On the basis of the record before the court when the defendant filed each of his motions to sever, we conclude that the court did not abuse its discretion in concluding, in both instances, that the defenses were not antagonistic.

Our analysis, however, does not end there. We also “scrutinize the strategies [actually] employed by each defendant at trial and determine, in light of the trial court’s ongoing duty to monitor the fairness of the joint trial, whether conflict between the defendants tainted the proceeding.” State v. Vinal, 198 Conn. 644, 649, 504 A.2d 1364 (1986); see also State v. Cavanaugh, 23 Conn. App. 667, 676, 583 A.2d 1311 (1990), cert. denied, 220 Conn. 930, 598 A.2d 1100 (1991).

The record discloses that the defenses employed at trial were not antagonistic. Neither the defendant nor Polanco testified or called any witnesses. Each presented his defense through cross-examination of the state’s witnesses and closing argument only. The defense strategies employed at trial were as follows: (1) the police investigation had been shoddy, (2) the credibility of the state’s witnesses was suspect, (3) the police had not found any weapons or pagers in the apartment and those items were strongly associated with drug dealers, (4) any one of a number of various third parties, including a former lessee of the apartment, could have placed the drugs in the ceiling of the apartment and (5) neither the defendant nor Polanco had knowledge of the crack cocaine until the police discovered it in the ceiling of the apartment. These defenses were not antagonistic. They were, in fact, compatible.

B

Finally, we consider the defendant’s argument that as the joint trial progressed, he was substantially prejudiced when the court admitted certain evidence that would not have been admissible at his trial had he been tried separately. Specifically, the defendant claims that the state presented evidence concerning Polanco’s struggle with Jones and Polanco’s use of an alias, and he argues that this evidence would have been inadmissible at his trial had the court severed his trial from Polanco’s. The defendant claims that that evidence inculpated him by association and, thus, substantially prejudiced him. In response, the state contends, inter alia, that some of the arguments raised by the defendant do not warrant review because they were unpreserved or were not timely raised. We assume arguendo that the defendant’s claims qualify for review and that the evidence he complains of would have been inadmissible at his trial had he been tried separately.

“Because a preliminary motion for separate trials obviously must be decided before the actual trial, the merits of the motion can be determined only on the basis of whether at that time it appears that injustice is likely to result unless separate trials are held. It is for this reason that in support of such a motion the court must be fully informed of any and all circumstances which indicate that justice to the parties requires separate trials. Even with a full disclosure, supplemented by inquiry from the court [i]n the exercise of a wise discretion . . . exceptional cases may arise where a motion for separate trials has been denied, but during or after the joint trial it appears that the joint trial is resulting or has resulted in substantial injustice to one or more of the accused. In such circumstances, justice to the prejudiced accused requires that he be afforded a new trial.” (Citation omitted; internal quotation marks omitted.) State v. Holup, 167 Conn. 240, 245, 355 A.2d 119 (1974); accord State v. Booth, supra, 250 Conn. 623.

The following additional facts and procedural history are relevant to the defendant’s claim. The state accused Polanco of interfering with a search in violation of General Statutes § 54-33d. During its case-in-chief, the state presented testimony tending to prove that Polanco ran directly into Jones and, on impact, began wrestling with him. Also, the state presented testimony indicating that Polanco was known also as “Rivera.” In abiding by the parameters set by the court in an evidentiary ruling favorable to the defendant, neither the state nor any of its witnesses referred to the name Rivera as an “alias.” Additionally, the state never argued that Polanco’s use of the name Rivera constituted evidence of a guilty mind.

Following the close of evidence, the court declined to instruct the jury that it was entitled to infer from Polanco’s use of the name “Rivera” that Polanco had a guilty conscience. While instructing the jury, the court included the following directions as a precaution: “There axe two defendants in this trial. Although the defendants are being tried together, you must consider the case against each separately; that is, your findings in one case do not in and of themselves establish a basis for a similar finding in another case. Each defendant is to be considered as if he were on trial alone for the offense for which he is charged and stands accused. You will be required, therefore, to render a separate verdict for each defendant, and there is a separate information for each defendant, which you will have with you in the jury deliberation room.

“There are also several charges for each of the defendants, and each charge is contained in the information for that defendant. Each charge charges the commission of a separate offense. For example, each defendant is charged with two counts of possession with the intent to sell. Each defendant is also charged with possession with intent to sell within 1500 feet of a school. You must decide each count separately, render a verdict on each count separately. The two counts of possession with intent to sell each relate to different factual allegations. Count one related to the alleged drugs found in the automobile, and count two relates to the drugs allegedly found in the apartment. And there are two companion charges of possession within 1500 feet of a school district, one for each of the possession charges. And, in addition, Mr. Polanco has a separate charge against him for interfering with the service of a warrant, which I will describe in more detail later. These cases have been joined for judicial efficiency, but you must consider them separately. You must consider each count separately and decide whether or not the state has proven each charge beyond a reasonable doubt.

“I remind you that during the course of the trial, evidence was admitted for you to consider in the case with respect to one defendant and not another. . . . Your verdict for each must be based solely upon the evidence that is admitted for your consideration with respect to that defendant or as otherwise limited by the court.”

We recognize that the defendant must prove substantial prejudice to prevail on his claim and that “[i]t is not enough for the defendant to show that a joint trial was less advantageous than a separate trial would have been.” (Internal quotation marks omitted.) State v. Booth, supra, 250 Conn. 633. Also, we acknowledge that “[tjhejury [is] presumed to follow the court’s directions in the absence of a clear indication to the contrary.” (Internal quotation marks omitted.) Id., 626. Given the nature of the evidence the defendant complains of and the court’s thorough cautionary instructions, we conclude that the defendant has failed to prove that he was substantially prejudiced by the joinder of his trial with Polanco’s.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (a) provides in relevant part: “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 one or more preparations, compounds, mixtures or substances containing an aggregate weight of one ounce or more of heroin, methadone or cocaine or an aggregate weight of one-half gram or more of cocaine in afree-base form or a substance containing five milligrams or more of lysergic acid diethylamide, except as authorized in this chapter, and who is not, at the time of such action, a drug-dependent person, shall be imprisoned for a minimum term of not less than five years nor more than twenty years; and, a maximum term of life imprisonment. ...”

       General Statutes § 21a-278a (b) provides in relevant part: “Any person who violates section 21a-277 or 21a-278 by manufacturing, distributing, seEing, prescribing, dispensing, compounding, transporting with the intent to sefl or dispense, possessing with the intent to seE or dispense, offering, giving or administering to another person any controEed substance in or on, or within one thousand five hundred feet of, the real property comprising a pubEc or private elementary or secondary school, a pubEc housing project or a Ecensed cldld day care center, as defined in section 19a-77, that is identified as a chEd day care center by a sign posted in a conspicuous place shaE be imprisoned for a term of three years, which shaE not be suspended and shaE be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. To constitute a violation of this subsection, an act of transporting or possessing a controEed substance shaE be with intent to seE or dispense in or on, or within one thousand five hundred feet of, the real property comprising a pubEc or private elementary or secondary school, a pubEc housing project or a Ecensed cldld day care center, as defined in section 19a-77, that is identified as a cldld day care center by a sign posted in a conspicuous place. . . .”

       The total weight of the crack cocaine was 221.6 grams, and it had a street value of $8000.

       “This second inquiry is required because exceptional cases may arise where a motion for separate trials has been denied, but during or after the joint trial it appears that the joint trial is resulting or has resulted in substantial injustice to one or more of the accused. In such circumstances, justice to the prejudiced accused requires that he be afforded a new trial.” (Internal quotation marks omitted.) State v. Booth, supra, 250 Conn. 623.