text:
    State of Connecticut v. Eddie Dennison
    (8800)
    Dupont, C. J., Daly and Foti, Js.

      Argued November 8, 1990
    decision released January 29, 1991

      Susan Cococcia, deputy assistant public defender, with whom were Suzanne Zitser, assistant public defender, and, on the brief, G. Douglas Nash, public defender, for the appellant (defendant).

      James M. Ralls, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David Gold, assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of criminal attempt to commit robbery in the first degree while armed with a deadly weapon in violation of General Statutes §§ 53a-49 (a) (2), 53a-133 and 53a-134 (a) (2). The defendant claims that the trial court (1) improperly permitted the defendant’s witness to invoke his fifth amendment privilege in the jury’s presence, (2) improperly allowed cross-examination of the defendant’s witness concerning his failure to come forward until the trial, (3) allowed improper closing arguments by the prosecutor, (4) incorrectly instructed the jury on reasonable doubt, and (5) incorrectly charged the jury on the statutory definition of robbery. The judgment of the trial court is affirmed.

From the evidence presented at trial, the jury could reasonably have found the following facts. Shortly after midnight on January 31,1988, the victim, Andre Davis, and his friend, Richard Clark, drove to the front of 109 Hurlburt Street in New Haven, stopped, and exited the car to talk with another friend, Karen Taylor. Their conversation occurred a short distance from the victim’s car. As the victim and Clark were returning to their car, they passed the defendant who was standing in the midst of a group of men. The defendant pressed a gun to the victim’s stomach and led him to an alley next to 109 Hurlburt Street. The defendant attempted to take the victim’s wallet and a struggle ensued. Clark then came to the aid of the victim. During the struggle, a shot was fired from the group of men on the street, and, shortly thereafter, a shot was fired from the defendant’s gun. Clark fled. While the struggle was continuing, another man, Demetrious Woods, came into the alley with his gun drawn. The victim and the defendant were still fighting when the defendant’s gun fell to the ground. At that point, the victim turned to run but was shot in the back by Woods and fell to the ground. Eventually, the victim pulled himself up and called for help.

The defendant’s sister, Albertha Robinson, resided with her niece, Karen Taylor, in a third floor apartment on Hurlburt Street. When Robinson heard the first two shots, she looked out the window to the alley. She heard the crowd yelling to Woods to shoot, heard the third shot and saw the victim exit the alley and fall to the ground. Robinson and Taylor went outside to the victim who told them that Woods had shot him while the defendant tried to rob him. Police and an ambulance arrived thereafter and took the victim to a hospital.

I

The following procedural facts are germane to the defendant’s first claim. The defendant called Clark as his witness during trial. Clark was an inmate at the Manson Youth Institute in Cheshire serving a sixteen year sentence for the offense of manslaughter. Clark was represented by counsel during the course of his testimony. Outside the presence of the jury, Clark was questioned about his prior record, his knowledge and use of weapons, particularly handguns, and his most recent conviction. Clark invoked his fifth amendment privilege against self-incrimination in the presence of the jury and refused to answer three of the questions that had been asked of him outside the presence of the jury. The defendant had objected to these questions and to Clark’s invocation of the fifth amendment going before the jury because it served no purpose. The court overruled the objection, and the defendant excepted.

On appeal, the defendant states in his first claim that it was improper for the trial court to allow the witness to invoke his fifth amendment privilege before the jury, but then claims (1) that there was prosecutorial misconduct in forcing the witness to invoke the fifth amendment privilege before the jury, and (2) that the state unfairly bolstered its case from inferences not subject to rehabilitation. The defendant made no such claims to the trial court. There, he objected because the questions and invocation of the fifth amendment in the presence of the jury would serve no purpose. The claims of prosecutorial misconduct and unfair bolstering of the state’s case were not distinctly presented to the trial court as required by Practice Book §§ 288 and 4185, and thus we are not bound to consider them on appeal. State v. Burroughs, 22 Conn. App. 507, 511-12, 578 A.2d 146 (1990). Moreover, the defendant’s claim does not raise any constitutional issues, rather it is a claim of evidentiary trial error. State v. Person, 215 Conn. 653, 659, 577 A.2d 1036 (1990), cert. denied, U.S. , 111 S. Ct. 756, 112 L. Ed. 2d 776 (1991). Because the defendant has not raised a constitutional claim, it does not warrant further review in its unpreserved state under the Evans-Golding criteria. State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The defendant has also requested review under the plain error doctrine. Practice Book § 4185. “Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). The three times the witness invoked his fifth amendment rights before the jury in the context of the entire trial did not rise to the level of such manifest injustice so as to impair the effectiveness or integrity of the defendant’s trial. State v. Person, supra, 666. Thus, there is no plain error in this case.

II

The defendant next claims that the court improperly allowed the cross-examination of Clark because the state failed to lay a foundation before asking why Clark did not come forward sooner with his exculpatory evidence regarding the defendant. The defendant did not object to this line of questioning during the trial and now seeks review under the Evans-Golding criteria. State v. Golding, supra. We conclude that the defendant has not raised a constitutional claim; State v. Jones, 205 Conn. 723, 736-38, 535 A.2d 808 (1988); State v. Eaddy, 16 Conn. App. 264, 271, 547 A.2d 912 (1988); or one that even approaches plain error; Practice Book § 4185; and therefore decline to review it.

Ill

The defendant next claims that certain comments during the assistant state’s attorney’s closing argument violated the defendant’s federal and state constitutional rights to due process and a fair trial. Specifically, the defendant claims that the prosecutor (1) commented on Clark’s invocation of his fifth amendment privilege, (2) commented on Clark’s pretrial silence, (3) vouched for the state’s witness, Albertha Robinson, and (4) commented on the defendant’s failure to testify, and thus engaged in prosecutorial misconduct. The state argues that the defendant has failed to preserve these claims for review because he failed to object or except to them at trial. Practice Book §§ 288 and 4185. We must now consider whether to grant review under the Evans-Golding criteria; State v. Golding, supra; or the plain error doctrine; Practice Book § 4185; as requested by the defendant. See State v. Rogers, 207 Conn. 646, 653, 542 A.2d 1136 (1988).

The record in this case does not support a claim that the defendant was clearly deprived of a fair trial. “The challenged remarks did not give rise to the level of character assassination and vitriolic personal attacks that we have held to constitute a denial of the constitutional due process right to a fair trial.” State v. Rogers, supra, 654; State v. Williams, 204 Conn. 523, 539-40, 529 A.2d 653 (1987). We conclude, therefore, that the remarks of the prosecutor set forth in the record do not rise to the level of state or federal constitutional breach.

IV

The defendant next challenges the court’s instructions on reasonable doubt. During its charge, the court defined reasonable doubt as one “for which a valid reason can be assigned,” and “for which if necessary you can give an explanation to your fellow jurors in the jury deliberation room.” The record reveals that the defendant neither objected to this portion of the charge nor submitted any request to charge on these issues. In its unpreserved state, the defendant now claims that these phrases constituted constitutional error and warrant review under the Evans-Golding criteria. State v. Golding, supra.

The trial court’s instructions on reasonable doubt are the same or similar to jury instructions that have previously been approved. State v. Thomas, 214 Conn. 118, 119-20, 570 A.2d 1123 (1990), and cases cited therein. No review is warranted, therefore, because the defendant cannot show that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial. State v. Golding, supra, 247.

y

The defendant finally claims that while there was evidence that force was used to subdue the victim, satisfying General Statutes § 53a-133 (1), there was no evidence before the jury to support the conclusion that force was employed to compel the victim to deliver up the property, pursuant to General Statutes § 53a-133 (2). The defendant argues, therefore, that the trial court should not have charged the jury on General Statutes § 53a-133 (2). The defendant lias failed to preserve this claim and now seeks review under Evans-Golding. State v. Golding, supra. Because this claim is similar to the claim reviewed in State v. John, 210 Conn. 652, 687, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989), and in State v. Williams, 202 Conn. 349, 361-63, 521 A.2d 150 (1987), we will grant review.

We begin by noting that the defendant was charged with attempted robbery pursuant to General Statutes § 53a-49 (a) (2). For a conviction of attempted robbery, the state must prove that the defendant possessed the requisite mental state and took a substantial step in committing a robbery. General Statutes § 53a-49 (a) (2). Specifically, the state must show that the defendant took a substantial step in committing larceny, by attempting to use or threaten force on the victim for the purpose of either (1) “preventing or overcoming resistance to the taking” of property, or (2) compelling the victim to “deliver up” the property. General Statutes § 53a-133 (defining the elements of robbery). The court read subdivisions (1) and (2) of the robbery statute, General Statutes § 53a-133, concerning the necessary intent, and then went on to define the other elements such as larceny, intentional conduct, force and threat. The court then reiterated that the jury must determine whether force was used or threatened for either of the two purposes in General Statutes § 53a-133, for preventing or overcoming resistance to a taking or for compelling another to deliver up the property.

The state presented evidence showing that the defendant pressed a gun to the victim’s stomach, led him into an alley, attempted to take the victim’s wallet and struggled with the victim. Thus, there was sufficient evidence for the jury reasonably to conclude that there was an attempt to force the victim to deliver up his property. Therefore, the court properly instructed the jury on the robbery statute. See, e.g., State v. John, supra; State v. Pelletier, 209 Conn. 564, 575-76, 552 A.2d 805 (1989); State v. Scott, 20 Conn. App. 513, 517, 568 A.2d 1048, cert. denied, 214 Conn. 802, 573 A.2d 316 (1990); State v. Horne, 19 Conn. App. 111, 562 A.2d 43 (1989), rev’d on other grounds, 215 Conn. 538, 577 A.2d 694 (1990).

The judgment is affirmed.

In this opinion the other judges concurred.

       Even if we were to consider the defendant’s claims, we would find them without merit. See, e.g., State v. Person, 20 Conn. App. 115, 118-23, 564 A.2d 626 (1989), aff’d, 215 Conn. 653, 577 A.2d 1036 (1990).

       Commenting on the testimony of defendant’s witness, Clark:
      “The State: And when questions came to Mr. Clark’s attention that he chose not to answer, he exercised his fifth amendment—
      “The Defendant: I object to that, judge. I’m sorry.
      “The Court: Overrule the objection.
      “The State: I’m just—I am not suggesting he doesn’t have a constitutional right to exercise his fifth amendment. He did . But it was interesting, I thought, he looked the same way and said no, I don’t carry a gun, I don’t use a gun and then he did, as is his right, exercise the fifth amendment with that same composure.”
      In rebuttal, the state then commented: “[Wjhen [the witness] takes, as is his right, he takes the fifth amendment, we know it is right to do it, but I think that you can assess his credibility by considering that.”

       The state in summation made the following comparison:
      “And Albertha Robinson gave her statement at the police station that day right then, January 31. She didn’t show up in court like Richard Clark did two years later. She gave a statement to police right then and there. Richard Clark, he left the scene conveniently.”

       The defendant referred to the same portion, excerpted in footnote 2, supra, and to the following: “You know, Richard Clark came in and he takes the defendant out of the case. Pretty much that’s what he said. He’s doing a sixteen year sentence and he comes in here and testifies on behalf of Eddie [the defendant], the man he knows as Eddie and in the course of doing that he really says oh, by the way, Eddie, your sister [Albertha Robinson] is a liar as well because that’s also what Richard Clark is saying.”

       The prosecutor commented: “Isn’t it interesting to you that with all the cross-examination there was no cross-examination at all of Mr. Davis about the fact that some months after this the defendant, Mr. Dennison, yelled down to Andre Davis: ‘Hey, I need to talk to you for a minute, Andre.’ He came down and said, ‘Hey man, Andre, I’m sorry, I’m sorry for what
      I did. You know I was on drugs.’
      “Now, Mr. Davis was here and was cross-examined for a long time. No questions about that. What was he apologizing for? If you listen to Mr. Clark, what was he apologizing for? Because he resisted Andre when Andre pulled the gun out? Of course not. He apologized. He said I know I’m going to have to turn myself in, but I’m sorry.
      “And what does Andre Davis say to the defendant? He didn’t—you weren’t the guy who shot me. He was up front with him. I didn’t—you weren’t the guy who shot me. He was up front with him. I didn’t tell them you shot me. I told them Meechie [Woods] shot me. But, hey, I told them what you did and I gave them a statement and I got to go in and testify about it.
      “He didn’t say I added something. But, you know, the defense didn’t cross-examine Mr. Davis about that. Everything else, sure. But not about that. And he just says well, I was on drugs at the time. He can’t blame everything on that.”

       The defendant’s only objection was to the prosecutor’s comment on Clark’s invocation of the fifth amendment privilege against self-incrimination, but once overruled he failed to except. The defendant argues that his objection and exception during Clark’s cross-examination earlier in the trial would have sufficiently preserved his claim. This reasoning is without merit and was rejected in State v. Williams, 204 Conn. 523, 536, 529 A.2d 653 (1987).

       General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       General Statutes § 53a-49 (a) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in course of conduct planned to culminate in his commission of the crime.”

       See footnote 7, supra.


source: Caselaw Access Project

author: Lavery, J.

license: Public Domain

text:
    J and B Weston Auto Park Associates et al. v. Hartford Redevelopment Agency et al.
    (8823)
    Dupont, C. J., Foti and La very, Js.
    Argued September 24, 1990
    decision released January 29, 1991

      Jeffrey J. Mirman, with whom, on the brief, was Maura L. Hughes, for the appellants (plaintiffs).

      Richard M. Cosgrove, senior deputy corporation counsel, with whom, on the brief, was Kenneth B. Kaufman, assistant corporation counsel, for the appellees (defendants).
   Lavery, J.

The plaintiffs, J & B Weston Auto Park Associates and Jetobra, Inc., doing business as Hoffman Enterprises, appeal from the judgment of the trial court which held that the plaintiffs were not third party beneficiaries of an alleged agreement between the named defendant and Weston Park Associates (WPA), a developer. The plaintiffs sought a decree of specific performance directing the defendants to execute a deed conveying certain redevelopment land to them, or to pay them damages for breach of contract. We affirm the judgment of the trial court.

The plaintiffs claim that the trial court improperly concluded that (1) no binding agreement existed between the defendant Hartford Redevelopment Agency and WPA following the adoption of the defendants’ resolution of September 17,1987, (2) the plaintiffs were not third party beneficiaries of an alleged contract between the defendant agency and WPA, (3) any rights of the plaintiffs as third party beneficiaries terminated when WPA withdrew as the redeveloper and the defendant agency rescinded its September 17, 1987 resolution, (4) the defendants were not estopped from denying the plaintiffs a right to acquire the property or to damages resulting from the defendants’ conduct, and (5) the defendant agency did not violate the plaintiffs’ property rights without due process of law.

The dispositive issue is whether the trial court was correct in finding that there was no binding agreement between the defendant Hartford Redevelopment Agency and WPA.

The trial court found the following pertinent facts. In 1986, the defendant agency approved the nomination of WPA as the tentative developer of approximately fifteen acres of redevelopment land for the purpose of constructing facilities for the plaintiffs and others. On June 18, 1987, the agency adopted a resolution agreeing to sell two parcels, comprising approximately 12.7 acres, to WPA as redeveloper for the price of $1.95 per square foot for purposes of constructing an automotive business facility for the plaintiff. Upon completion of the construction, the parcel was to be sold to the plaintiffs at WPA’s cost of $1.95 per square foot with WPA’s profits to be derived from the construction of the facility. The resolution stated that the proposal conformed to the redevelopment plan and was conditioned upon a disposition agreement between the agency and the redeveloper. In fact, no disposition agreement had been drafted at that time. The resolution was forwarded to the Hartford Common Council for its approval. On August 25, 1987, the Common Council approved the resolution with the caveat that any substantial change in the plans should be sent to it for further approval. On September 17, 1987, the agency adopted a resolution granting final approval of a disposition agreement between the agency and the redeveloper and approving the resale of a portion of the property to the plaintiff. The resolution authorized the ehairman or vice-chairman of the agency to execute the disposition agreement, the deed for the properties and the employment agreement for Hartford residents pertaining to permanent job opportunities to be derived from the development. The agency reserved the right to review and void the resolution should the redeveloper fail to execute the disposition agreement prior to January 21, 1988. No disposition agreement was prepared at that time.

During the September 17,1987 meeting, the agency contemplated changes by WPA and reserved final approval until it could review and approve those changes. Although authorized to execute a disposition agreement with WPA, the chairman would do so only when the new plans for the plaintiffs’ facilities were finalized and accepted by the agency. On September 28, 1987, the plaintiffs wrote to WPA proposing that they purchase an additional 6.5 acres of land within the development and that the whole project be redesigned. On October 15,1987, WPA presented revised plans to the agency.

On October 27, 1987, a meeting was held between WPA and the plaintiffs. At that meeting, the plaintiffs’ real estate director told WPA that the agency would not approve the revised site plan and therefore the plaintiff had the choice of either going forward with the original approved plan or abandoning the project. In response, WPA requested a decision from the plaintiffs as soon as possible because further delay would jeopardize existing plans. Despite repeated attempts by WPA to elicit a decision, the plaintiffs never responded to WPA with an answer.

On January 20, 1988, WPA wrote to the plaintiffs indicating, inter alia, that unless the plaintiffs were prepared to move forward on the original site plan, WPA did not want to continue its involvement with the redevelopment project. The plaintiffs did not respond. Thus, as a direct result of the plaintiffs’ inaction, no disposition agreement was ever executed between the agency and WPA.

On February 11, 1988, WPA wrote a letter to the agency relinquishing its status as the designated developer. On February 17,1988, the plaintiffs’ counsel wrote to the agency requesting that the agency immediately transfer the two parcels to his clients. On February 18, 1988, the agency adopted a resolution accepting WPA’s withdrawal and rescinding final approval of the disposition agreement contained in its resolution of September 17, 1987, as well as rescinding the nomination of WPA as developer.

On appeal, we must determine whether the decision of the trial court was clearly erroneous. Practice Book § 4061. Thus, the plaintiffs can prevail only if they sustain their burden of showing that the trial court’s factual findings were clearly erroneous in view of the evidence and pleadings in the whole record. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

In the absence of definitive contract language, the determination of what parties to a contract intended is a question of fact for the trial court and is not reversible unless the trial court could not reasonably have arrived at its conclusion. Thompson & Peck, Inc. v. Harbor Marine Contracting Corporation, 203 Conn. 123, 130-31, 523 A.2d 1266 (1987); Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981); Mayfair Roofing & Renovating Co. v. Ramco Technologies, Inc., 18 Conn. App. 682, 687, 560 A.2d 464 (1989).

On the basis of the evidence adduced at trial, the court, in a well reasoned memorandum of decision, concluded that there was no contract between the agency and WPA because both parties knew that before their contract could be finalized several essential requirements had to be met. These requirements included, inter alia, agency approval of the final site plan for the plaintiffs’ facilities, execution of an employment and training agreement, acceptance of an affirmative action compliance memorandum and approval of the disposition by the state department of economic development. On September 17,1987, although the agency had tentatively approved the original site plan, a revised plan had already been contemplated and that revised plan was never approved by the agency. In addition, the resolution of September 17,1987, required that the disposition agreement be signed by January 21, 1988, or else the agency could void the resolution. That disposition agreement was never signed. On February 18, the agency voided the resolution.

“ ‘[A] contract is not made so long as, in the contemplation of both parties thereto, something remains to be done to establish contract relations. The law does not make a contract when the parties intend none, nor does it regard an arrangement as completed which the parties thereto regard as incomplete.’ ” New Haven Tile & Floor Covering Co. v. Roman, 137 Conn. 462, 464, 78 A.2d 336 (1951). In this case, there were a number of steps left undone and it is clear that neither party viewed the other as being bound to the incomplete agreement.

The trial court’s decision that no contract existed between the agency and WPA cannot be disturbed. Because no contract exists, no right in the plaintiffs as third party beneficiaries exists. “A promise creates no duty to a beneficiary unless a contract is formed between the promisor and the promisee . . . .” 2 Restatement (Second), Contracts § 309 (1).

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs brought this action against the named defendant, the city of Hartford and Michael Peters, the chairman of the redevelopment agency.

       The disposition agreement referred to in the agency’s resolution was to have consisted of the precise terms of the sale by the agency to the redeveloper, including the selling price, the date of conveyance, the amount of redeveloper deposit to assure performance of the obligation of the redeveloper and the right of the agency to retain it on failure of the redeveloper to perform, the time for commencement of the improvements on the site, the time for submission of construction plans, the time for submission of commitment of mortgage financing, an assurance of priority consideration for permanent employment given to city residents, and a guarantee that at least 15 percent of total project construction value of improvements on the site would go to minority and female owner contractors, and that the project would be in compliance with the Greater Hartford Affirmative Action Plan.


author: Daly. J.

text:
    Pacific Mutual Life Insurance Company v. Broad Associates Limited Partnership et al.
    (9032)
    Dupont, C. J., Daly and Landau, Js.
    Argued December 11, 1990
    decision released January 29, 1991

      Thomas W. Bucci, with whom, on the brief, was Mark J. Rosen, for the appellant (named defendant).

      Gregory W. Nye, with whom was Robert G. Skelton, for the appellee (plaintiff).
   Daly. J.

The dispositive issue in this appeal is whether the trial court improperly denied the named defendant’s motion to open and modify a judgment of strict foreclosure pursuant to General Statutes § 49-15. We affirm the judgment of the trial court.

The following facts are not disputed. On February 14, 1989, a judgment of strict foreclosure was rendered for the plaintiff with a law day of September 6,1989, set for the defendant. Subsequently, the defendant filed a petition in the Bankruptcy Court which stayed all proceedings. Pursuant to the plaintiff’s motion, the Bankruptcy Court lifted the automatic stay on February 20, 1990, when it found the defendant’s plan of reorganization unsatisfactory.

On March 19, 1990, the trial court rendered a new judgment of strict foreclosure based on the same terms as its prior judgment with the defendant’s law day set for April 9, 1990. On April 4, 1990, the defendant moved to open the judgment and extend the law day because it was submitting a new reorganization plan to the Bankruptcy Court. The trial court denied this motion on April 5, and this appeal ensued.

A motion to open a judgment of strict foreclosure is addressed to the discretion of the trial court; General Statutes § 49-15; and, unless that discretion was abused or was based on some error of law, the denial of the motion must stand. Melillo v. Spiro, 187 Conn. 333, 334, 445 A.2d 921 (1982); New Haven Savings Bank v. Gurland, 3 Conn. App. 508, 509, 489 A.2d 1070 (1985).

The defendant’s property at the time of the 1989 judgment had a fair market value of $4,800,000 and a debt of $5,545,783 with interest accruing at the rate of $1998 per diem. The fair market value of the property at the time of the 1990 judgment had declined to $3,133,000 with the debt having risen to $6,341,369. The defendant has failed to demonstrate that the trial court abused its discretion or committed legal error in setting the defendant’s law day when the debt so far exceeded the value of the property.

The judgment is affirmed and the case is remanded with direction to set new law days due to the time lapse since the judgment was rendered.

In this opinion the other judges concurred.

       The named defendant is the sole defendant in this appeal, and we will refer to it as the defendant in this opinion.

       General Statutes § 49-15 provides in part: “Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the same, upon the written motion of any person having an interest therein, and for cause shown, be opened and modified . . . upon such terms as to costs as the court deems reasonable . ”

       “ ‘On an application for a foreclosure the court will ascertain the sum that is due on the mortgage, and enquire into the value of the mortgaged premises, and will limit a time for redemption having regard to the value of the [mortgaged] premises when compared with the debt.’ ” Brand v. Woolson, 120 Conn. 211, 214, 180 A. 293 (1935), quoting 2 Swift’s Digest, 197; Busca v. Nicotra Corporation, 213 Conn. 264, 267, 567 A.2d 377 (1989).


author: Daly, J.

text:
    Robert Scinto et al. v. State Codes and Standards Committee
    (8950)
    Daly, Poti and Cretella, Js.

      Argued December 4, 1990
    decision released February 5, 1991

      Ralph L. Palmesi, with whom, on the brief, was Vito Mazza, for the appellants (plaintiffs).

      Henri Alexandre, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Daly, J.

The plaintiffs appeal from the granting of the defendant’s motion to dismiss and judgment of dismissal for lack of subject matter jurisdiction. The plaintiffs claim that the trial court improperly concluded that their appeal was untimely. The plaintiffs also claim that opposing parties were timely served process, contrary to the defendant’s assertions. We disagree and affirm the judgment of the trial court.

The following facts are pertinent to this appeal. The plaintiffs filed a request with the state building inspector for a handicap exemption, pursuant to Connecticut Building Code, art. 5 § 512.1.3, regarding a property located in Trumbull. The state budding inspector denied the request and the plaintiffs filed an appeal with the defendant on May 11,1989, pursuant to General Statutes §§ 29-266 (d) and 29-269 (b). The defendant held a hearing on the matter and unanimously upheld the inspector’s decision. The plaintiffs were notified of the defendant’s final decision on August 9,1989. The plaintiffs then appealed to the Superior Court pursuant to General Statutes § 4-183 on October 3, 1989.

The defendant filed a motion to dismiss on the ground that all parties of record had not been timely served within thirty days of the mailing of the defendant’s notice of decision as required by General Statutes (Rev. to 1989) § 4-183 (b). The court issued a memorandum of decision rejecting the defendant’s argument but dismissed the appeal because the plaintiffs failed to file the appeal in the Superior Court within forty-five days of the mailing of the defendant’s notice of decision as required by General Statutes (Rev. to 1989) § 4-183, both as in effect prior to July 1, 1989; see footnote 2 and as amended and in effect after that date. The present appeal followed.

In support of their claims, the plaintiffs make two arguments. First, they assert that a copy of the appeal was served on the clerk of the Superior Court on September 19,1989, forty-one days after the defendant’s notice of August 9,1989, and thus satisfied the forty-five day filing requirement under the newly amended General Statutes § 4-183 (c); see footnote 3, supra; which applied in this case. Second, the plaintiffs argue that this newly amended version of the statute removed the mandatory requirement that a plaintiff file an appeal with the clerk of the Superior Court within forty-five days, and thus concluded that the forty-five day limit is merely directory. We find the plaintiffs’ arguments unpersuasive.

Before reaching the plaintiffs’ arguments, we must first determine which version of General Statutes § 4-183 applies. The Connecticut Supreme Court has recently held that the determinative factor in deciding which version of § 4-183 applies is the date on which the underlying agency action commenced. Citizens Against Pollution Northwest, Inc. v. Connecticut Siting Council, 217 Conn. 143, 149, 584 A.2d 1183 (1991); see Vernon Village, Inc. v. Carothers, 217 Conn. 130, 140-42, 585 A.2d 76 (1991). The plaintiffs in this case filed their appeal with the defendant on May 11,1989, and thereby commenced their underlying action prior to July 1, 1989. Therefore, the version of § 4-183 in effect prior to July 1, 1989, applies to the plaintiffs’ appeal to the trial court. Citizens Against Pollution Northwest, Inc. v. Connecticut Siting Council, supra; see Vernon Village, Inc. v. Carothers, supra.

Administrative appeals are statutory creations with limited lifespans. See Connecticut Bank & Trust Co. v. Commission on Human Rights & Opportunities, 202 Conn. 150, 154, 520 A.2d 186 (1987). Statutory time limits must be strictly complied with if a court is to maintain jurisdiction. See Basilicato v. Department of Public Utility Control, 197 Conn. 320, 322, 497 A.2d 48 (1985). Thus, if the plaintiffs failed to meet any of the requirements set forth in the applicable version of General Statutes § 4-183, the appeal is not viable.

The plaintiffs were required to serve the agency and all parties of record within thirty days after receiving notice of the agency’s decision. General Statutes (Rev. to 1989) § 4-183. The plaintiffs conceded in their brief before this court that they failed to meet this requirement and served the defendant more than thirty days after receiving notice of the defendant’s decision. Thus, the trial court did not have subject matter jurisdiction.

The trial court, however, did not employ this ground as the basis of its dismissal. Rather, the trial court found that the plaintiffs filed their appeal more than forty-five days after receiving notice of the defendant’s decision. The trial court reasoned that under either version of General Statutes § 4-183, the plaintiffs’ failure to file their appeal within forty-five days was fatal.

An administrative appeal is filed and pending when it is returned to the court. Demar v. Open Space & Conservation Commission, 211 Conn. 416, 430, 559 A.2d 1103 (1989). Here, the plaintiffs received notice of the defendant’s decision on August 9,1989, and served the defendant on September 19,1989, but failed to file the appeal together with the return until after the forty-five day limit transpired. It was not until October 3, 1989, that the plaintiffs filed the writ, summons, complaint and return, fifty-five days after receiving notice from the defendant. Because the plaintiffs failed to file their appeal within the required forty-five day limit as required by General Statutes (Rev. to 1989) § 4-183, effective prior to July 1, 1989, the trial court did not have subject matter jurisdiction.

In view of our earlier decision that the version of General Statutes (Rev. to 1989) § 4-183, effective prior to July 1, 1989, was applicable to the plaintiffs’ appeal, we need not decide whether the version of the statute in effect after that date mandates the same forty-five day filing requirement as the plaintiffs have requested.

Because the plaintiffs failed to serve notice on the defendant within thirty days after receiving notice of the defendant’s decision or, alternately, failed to file their appeal within forty-five days after such notice, their appeal must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       Sara Lee Corporation is also a plaintiff in this case.

       General Statutes (Rev. to 1989) § 4-183, effective prior to July 1,1989, provided in pertinent part: “(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to a judicial review by way of appeal under this chapter ....
      “(b) Proceedings for such appeal shall be instituted by filing a petition in superior court . . . within forty-five days after mailing of the notice of the final decision of the agency .... Copies of the petition shall be served upon the agency and all parties of record within thirty days after mailing of such notice . . . .”

       General Statutes (Rev. to 1989) § 4-183, as amended by Public Acts 1988, No. 88-317, effective July 1,1989, provides in pertinent part: “(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court ....
      “(c) Within forty-five days after mailing of the final decision under section 4-180 or, if there is no mailing, within forty-five days after personal delivery of the final decision ... a person appealing as provided in this section shall serve a copy of the appeal on the agency . . . and file the appeal with the clerk of the superior court . . . ,”
      Though irrelevant for our purposes here, this statute was further amended by Public Acts 1988, No. 88-280, effective September 1, 1991.

       The trial court’s judgment and memorandum of decision dated February 21,1990, was issued well before the Supreme Court’s recent decision in Citizens Against Pollution Northwest, Inc. v. Connecticut Siting Council, 217 Conn. 143, 149, 584 A.2d 1183 (1991).


author: Landau, J.

text:
    Manuel Fernandes et al. v. Zoning Board of Appeals of the City of Bridgeport et al.
    (8948)
    Spallone, Foti and Landau, Js.

      Argued October 31, 1990
    decision released February 5, 1991

      Linda R. Stark, with whom, on the brief, was Anthony T. Varone, for the appellant (defendant Northpointe Company).

      J. Roger Shull, for the appellees (plaintiffs).
   Landau, J.

The defendant Northpointe Company is the owner of an unimproved parcel of land at 290 Glendale Avenue, Bridgeport, located in a Residence-A zoning district. Under that city’s zoning regulations, a Residence-A zone is a single-family district. The plaintiffs Manuel and Isaura Fernandes are the owners of land at 176 Sunrise Terrace, Bridgeport. The eastern boundary of their parcel abuts the western boundary of the Northpointe tract. The plaintiffs Katherine Keane and Rosemary Ferrara own a condominium unit located at 64 Coachlight Square, Bridgeport. The condominium property abuts the entire eastern boundary of Northpointe’s parcel.

Northpointe submitted an application dated April 29, 1988, to the zoning board of appeals (ZBA) for a variance that would permit it to construct a ten unit condominium on its property. At the public hearing before the ZBA, the defendant began its presentation by stating that it had appeared before the ZBA over six months prior to the April application and since that time had amended its plan. The defendant had added fences and plantings to provide additional screening. The ZBA granted the variance contingent on the construction of a six foot high privacy fence along the western property line. The ZBA assigned the following reason for its action: “There is no other practical use to be made of the property due to existing site conditions which includes ledge and surrounding development which includes multi-family residential dwelling units.”

The plaintiffs appealed to the Superior Court from the ZBA’s granting of the application for the variance. In that appeal, they alleged that on October 13,1987, the ZBA had denied the same petition for a variance that had been filed by Northpointe and that no change of circumstances had occurred between that denial date and the ZBA’s subsequent approval that would warrant a different decision. Both of the defendants denied this allegation in their answers. The trial court sustained the plaintiffs’ appeal finding that the record contained no indication of a material change of conditions or intervening factors. The court further found that the addition of the screening was not a material change.

Upon our granting of certification, Northpointe appealed to this court claiming that the trial court improperly held that the ZBA’s decision was a reversal of a prior decision without a showing of a material change in circumstances because (1) the trial court relied on allegations of facts not contained in the record, (2) the trial court abused its discretion by making a finding that there was no material change in circumstances, and (3) the plaintiffs failed to sustain their burden of proof in demonstrating that the defendant ZB A acted improperly.

The plaintiffs maintain that the record sufficiently supports the court’s finding of a prior application and its resultant holding. The plaintiffs claim as alternate grounds on which to sustain the trial court’s judgment that (1) the Bridgeport zoning regulations, specifically amendments one through seven, dated September 30, 1987, prohibit the granting of Northpointe’s application for a variance, (2) the granting of a variance to Northpointe is contrary to the city of Bridgeport’s comprehensive zoning plan, and (3) the defendant Northpointe is not entitled to a variance, as a matter of law, because any hardship that may exist was present prior to Northpointe’s acquisition of the subject property. We agree with the defendant and reverse the trial court’s judgment.

I

The defendant claims that the court improperly relied on allegations of facts not contained in the record before it and that it abused its discretion in finding that there was no material change in circumstances. The defendant asserts that the court made an initial finding that there was a prior inconsistent ZBA decision on the identical application.

A local zoning board of appeals, pursuant to General Statutes § 8-6 (3), is authorized to grant a variance where two basic conditions are satisfied: “ ‘(1) the variance must be shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan.’ ” Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 655, 427 A.2d 1346 (1980), quoting Smith v. Zoning Board of Appeals, 174 Conn. 323, 326, 387 A.2d 542 (1978).

The ZB A “ ‘is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal.’ ” Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988). “ ‘When a zoning authority has stated the reasons for its actions, a reviewing court may determine only if the reasons given are supported by the record and are pertinent to the decision.’ Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn. App. 53, 56, 549 A.2d 1076 (1988). ‘Courts must not substitute their judgment for that of the zoning board and must not disturb decisions of local boards as long as honest judgment has been reasonably and fairly exercised after a full hearing.’ Molic v. Zoning Board of Appeals, 18 Conn. App. 159, 164, 566 A.2d 1049 (1989).” Horn v. Zoning Board of Appeals, 18 Conn. App. 674, 676-77, 559 A.2d 1174 (1989). We in turn review the actions of the trial court. Whittaker v. Zoning Board of Appeals, supra.

A review of the record indicates that the trial court’s decision sustaining the plaintiff’s appeal was clearly erroneous. Practice Book § 4061. The trial court found that the ZBA had reversed a prior decision without having found a material change of conditions or intervening factors. The ZBA, however, based its decision on the site conditions including the presence of ledge, and on the nature of the surrounding development, which includes multifamily residential dwellings. Upon review, the trial court, therefore, was limited to determining whether the record supported the ZBA’s findings. A review of the record reveals that the defendant introduced testimony and exhibits about the presence of rock and stone and the type of housing in the surrounding area.

The trial court’s focus on a change of circumstances was improper. It is for the ZBA, not the court, to determine whether the defendant’s petition was a new application or substantially the same as the earlier application. Hotchkiss Grove Assn., Inc. v. Water Resources Commission, 161 Conn. 50, 58, 282 A.2d 890 (1971); Malmstrom v. Zoning Board of Appeals, 152 Conn. 385, 391, 207 A.2d 375 (1965). A review of the record also indicates that the defendant’s petition to the ZBA was filed as a petition for a variance and not as a request for a rehearing. In addition, the defendant clearly stated that it had filed a previous petition in October, 1987, more than six months before the public hearing in June, 1988, thereby removing it from the scope of General Statutes § 8-6. It was therefore within the ZBA’s discretion to view the defendant’s petition as a new petition.

Finally, “ ‘[t]he burden of proof to demonstrate that the board acted improperly is upon the plaintiffs. . . .’ ” Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707, 535 A.2d 799 (1988). Upon review, we agree with the defendant that the plaintiffs have failed to sustain their burden of proof.

II

The plaintiffs present three alternate grounds on which the judgment of the trial court may be affirmed. Their first two arguments are that the petition for variance is barred by the so-called “Mayor’s Amendments” and that the defendant’s proposal violates the comprehensive zoning plan of Bridgeport. We dismiss the plaintiffs’ claims because they have failed to provide a sufficient record for review.

At trial, the plaintiffs submitted the transcript from the public hearing held by the Bridgeport zoning commission adopting amendments to the city’s zoning regulations proposed by Mayor Thomas W. Bucci. This transcript provides the words and phrases that are to be added to and deleted from the city’s zoning regulations. A review of the record, however, fails to furnish a complete copy of the zoning regulations. Without the regulations, the amendments cannot be placed in context and are virtually meaningless.

Although this court has previously held that zoning regulations, as municipal ordinances, are subject to judicial notice pursuant to General Statutes § 52-163; see Olsen v. Zoning Board of Appeals, 5 Conn. App. 455, 457, 499 A.2d 1168 (1985); our decision in Housing Authority v. Brown, 23 Conn. App. 366, 579 A.2d 1110 (1990), warrants a reconsideration of our earlier opinion. Our decision in Brown not to take judicial notice of the rules and procedures of local housing authorities is based on the facts that these promulgations are not fully published or disseminated and that there is no official publication or repository in which they are recorded. Housing Authority v. Brown, supra, 369. We therefore concluded that “[i]n the absence of such procedures and controls, the court has no assurances that the proffered regulation reflects the most current and complete version available.” Id. Because of the problem of the availability and the accuracy of zoning regulations, and in light of our recent decision in Brown, we decline to take judicial notice of the city’s zoning regulations when they are not made part of the record or when only a small portion is presented.

It is the plaintiffs’ burden in presenting these alternate claims to provide an adequate record. State v. Edwards, 201 Conn. 125, 160, 513 A.2d 669 (1986); Accurate Forging Corporation v. UAW Local No. 1017, 189 Conn. 24, 28, 453 A.2d 769 (1983). “ ‘This court cannot resort to matters extraneous to the formal record, to facts which have not been found and which are not admitted in the pleadings, or to documents or exhibits which are not part of the record. . . .’ ” (Citations omitted.) Accurate Forging Corporation v. UAW Local No. 1017, supra. Because a “ ‘comprehensive plan is to be found in the scheme of the zoning regulations themselves’ ”; Adolphson v. Zoning Board of Appeals, supra, 713; the absence of the zoning regulations also precludes our review of the plaintiffs’ second alternate claim.

Finally, the plaintiffs contend that the defendant established no hardship that would justify a variance. As discussed above, the court’s scope of review in hearing appeals from a local ZBA is limited to whether “ ‘the reasons given are supported by the record . . . . ’ ” Horn v. Zoning Board of Appeals, supra, 676. The ZBA based its decision on the presence of rock and stone and the nature of the surrounding dwellings. The ZBA therefore found that there was a hardship to the defendant sufficient to justify the granting of a variance and we dismiss the plaintiffs’ third alternative claim.

The judgment is reversed and the case is remanded with direction to render judgment for the defendants.

In this opinion the other judges concurred.

       The Bridgeport zoning board of appeals, originally named as a defendant, did not join in this appeal.

       General Statutes § 8-6 provides in pertinent part: “The zoning board of appeals shall have the following powers and duties ... (3) to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed. No such board shall be required to hear any application for the same variance or substantially the same variance for a period of six months after a decision by the board or by a court on an earlier such application.”

       See footnote 2, supra.

       A review of the transcripts illustrates this problem. At trial, the court was confronted with the problem of determining the current status of the zoning regulations. On the first day of the hearings, the court, addressing the defendant, noted the absence of the zoning regulations from the record. Although the defendant replied that these regulations would be provided, the court expressed further concern with the status of the city’s zoning regulations and whether it had “those regulations which are in effect, at this point, and not those which have been repealed, and those which have been amended.”


author: Spallone, J. Dupont, C. J.,

text:
    State of Connecticut v. Viola Crumble
    (8298)
    Dupont, C. J., Spallone and Daly, Js.

      Argued September 11, 1990
    decision released February 5, 1991

      John R. Williams, with whom, on the brief, was D. Kirt Westfall, for the appellant (defendant).

      Marjorie Allen Dauster, deputy assistant state’s attorney, with whom, on the brief, were C. Robert Satti, Sr., state’s attorney, and Marcia Pillsbury, deputy assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant was convicted, after a jury trial, of the crimes of assault in the third degree in violation of General Statutes § 53a-61 and cruelty to persons in violation of General Statutes § 53-20. On appeal, the defendant claims that the trial court improperly (1) struck the testimony of one of the defendant’s witnesses, Beverly Grundy, (2) denied the defendant’s motion to dismiss which claimed that the state failed to disclose exculpatory material, (3) excluded evidence of bias, (4) excluded impeachment evidence, and (5) excluded documentary evidence for failing to satisfy the business records exception to the hearsay rule. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury could have reasonably found the following facts. During April and May of 1987, Viola Crumble, Elona Romeo and Sally Booth were employed as mental retardation workers in unit 305 at the Seaside Regional Center (Seaside), a residence for mentally handicapped persons. Mental retardation workers are responsible for the care of clients at the center. The victim, Elizabeth DeJesus, was a client in unit 305 during April and May of 1987. She is nonverbal, nonambulatory and aggressive. The charges in this case stem from two incidents involving the defendant and DeJesus that occurred on April 22 and May 23, 1987, at Seaside.

On the morning of April 22,1987, Romeo was in the day hall at Seaside with DeJesus and another client. Romeo observed the defendant enter the room and begin “wrestling and antagonizing” DeJesus, who was trying to get away. The defendant took the victim’s hand, put it in the victim’s mouth and directed her to bite it. When DeJesus would not bite, the defendant said “I’ll fix you” and proceeded to bite the victim’s hand herself.

On the morning of May 23, 1987, Romeo and Booth observed DeJesus assault Jackie Coombs, a helpless fifty-two year old client with Down’s syndrome. After escorting Coombs out of the room, Romeo observed the defendant grab DeJesus, drag her into a nearby bedroom and shut the door. Booth then observed the defendant kicking DeJesus, who was on the floor. Booth intervened, and the defendant left the room.

In November of 1987, Romeo reported the defendant’s assaults on DeJesus to the police. On December 21,1987, Crumble was arrested. She entered pleas of not guilty. After trial, the defendant was convicted of cruelty to persons and assault in connection with the April 22 incident, and of assault in connection with the May 23 incident. This appeal followed.

I

The defendant first challenges the trial court’s decision to strike the testimony of Beverly Grundy. The following facts are pertinent to the defendant’s claim. At the beginning of the trial, defense counsel requested, and the trial court granted, an order “that the witnesses be instructed not to discuss their testimony as amongst themselves, at any point in time.” The trial court instructed counsel to inform their witnesses of the order and reminded counsel that it was their responsibility to see to it that their witnesses did not violate the court order and to let the court know immediately of any violations.

The defendant called Grundy, a nurse at Seaside in unit 305 until March of 1987. Grundy testified that DeJesus was violent, had injured herself on previous occasions and had bitten herself while trying to bite Grundy. Grundy also described staff training in techniques for restraining violent patients.

On cross-examination, Grundy stated that the defendant telephoned her at home on Saturday or Sunday of the prior weekend, after the trial had begun and after the entry of the sequestration order. Grundy testified that she asked the defendant how the court case was going, who was in court for each side, who testified, and when she would testify. The state moved to strike Grundy’s testimony claiming that the discussion violated the court’s sequestration order. Defense counsel objected, stating that he had great difficulty contacting Grundy in order to schedule her testimony, and that he may have instructed the defendant to call Grundy to tell her to call defense counsel. The trial court granted the state’s motion, ordered Grundy’s testimony stricken from the record, and instructed the jury to disregard it.

The primary purpose of a sequestration order is to ensure that the defendant receives a fair trial by preventing witnesses from shaping their testimony to corroborate falsely the testimony of others. State v. Pikul, 150 Conn. 195, 200, 187 A.2d 442 (1962). Such orders may be effectuated upon a party’s motion by court order. That order may impose a broader prohibition than that provided by the sequestration statute. State v. Williams, 169 Conn. 322, 331, 363 A.2d 72 (1975); State v. Scott, 16 Conn. App. 172, 182, 547 A.2d 77, cert. denied, 209 Conn. 821, 551 A.2d 758 (1988). “An inquiry into the facts and circumstances of each case is necessary to ascertain whether the purpose of a sequestration order has been thwarted.” State v. Scott, supra.

At the request of defense counsel, the sequestration order in the present case prohibited any discussion of testimony among witnesses during the trial. The defendant telephoned a future witness, discussed the ongoing trial, the number of persons who had testified until that point in time, and who had testified. Grundy stated that the defendant had told her that Romeo had already testified and that the defendant had told her that “it was all crazy and she’d never do anything to hurt anybody.” Grundy and the defendant both were witnesses at trial. Under these circumstances, we cannot say that the trial court improperly concluded that the sequestration order was violated.

The remedy to be applied for a violation of a sequestration order rests in the trial court’s discretion. State v. Falby, 187 Conn. 6, 27, 444 A.2d 213 (1982). In this case, it was well within the discretion of the trial court to determine that the fairness of the trial required the striking of the witness’ testimony.

Even were we to decide that the trial court’s remedy was excessive under these circumstances, the striking of Grundy’s testimony was harmless since its substance was presented by other witnesses. Romeo, Booth and Stephanie Hanson, a nurse at Seaside, all testified concerning the victim’s violent nature, and the defendant herself described the staff training in techniques for restraining violent patients. We conclude, accordingly, that the remedy applied by the trial court for a violation of its sequestration order did not deprive the defendant of her constitutional rights.

II

The defendant next claims that the state violated her due process rights by failing to disclose exculpatory material as required under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and under General Statutes § 54-86C, and Practice Book § 741 (1) and (3).

The basis of the defendant’s claim is as follows: On January 13, 1988, the defendant filed a nine page motion for discovery and inspection, enumerating fifteen categories of information that she requested from the prosecution. This list included a request for “[adequately defined books, tangible objects, papers, photographs or documents which are within the possession, custody or control of any State agency, and which are material to the preparation of the defense or are intended for use by the prosecuting authority as evidence-in-chief at the trial.” The state responded, “none known at this time.” On December 29,1988, the defendant filed a supplemental motion for discovery and inspection requesting, among other things, that the state reveal the medical or any other records of the reported injuries of DeJesus. The state objected to this request. The record does not indicate that the defendant ever claimed the motion to the court.

The defendant’s brief indicates that the documents requested from the prosecution were client progress notes, which are records containing daily notations of a particular client’s behavior and routines at Seaside. The defendant alleges that these reports would not have had any notation of an injury sustained by the victim on April 22, and that the injury to the victim on May 23 occurred as a result of a fight between the victim and another client at Seaside.

We will quickly dispose of the defendant’s Brady and statutory claims. “Our Supreme Court has stated that ‘[i]n order to establish a violation of Brady and its progeny, the defendant must demonstrate the prosecution had possession of material information favorable to the accused . . . .’ (Emphasis added; footnote omitted.) State v. Falcone, 191 Conn. 12, 17, 463 A.2d 558 (1983); see also General Statutes § 54-86c.” State v. Bettini, 11 Conn. App. 684, 692, 528 A.2d 1180, cert. denied, 205 Conn. 804, 531 A.2d 937 (1987). General Statutes § 54-86c requires that the prosecutor he in possession of exculpatory information or material. In the present case, there is no basis for concluding that the prosecution ever possessed the requested information. The prosecutor stated at trial that she never possessed, and never saw, the documents alluded to by the defense. The defendant does not dispute the prosecution’s assertion, and only states that the documents were in the possession of Seaside.

Furthermore, the defendant’s conclusion that these documents are exculpatory or material is pure speculation. “The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” United States v. Agurs, 427 U.S. 97, 109-10, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976). The defendant has failed to establish that the prosecutor was in possession of these materials and has failed to show that the requested material was exculpatory or material. Her Brady and statutory claims, therefore, are without merit.

The defendant’s claim that the state was under a duty to produce this information pursuant to Practice Book § 741 is equally without merit. Section 741 (3) requires the prosecutor to disclose certain types of information including that which is “material to the preparation of the defense.” The defendant did not, as set forth above, establish the “materiality” of the requested information for the defense. Because the defendant has not established that the documents sought were material to the defense or that they were exculpatory, we cannot say that the prosecution was under a duty, pursuant to Practice Book § 741, to engage in an independent investigation to discover such materials for the defense.

III

The defendant’s third claim is that the trial court impermissibly restricted her constitutionally guaranteed right of confrontation when it prevented her from eliciting, during cross-examination, evidence of possible bias on the part of a witness for the state. The defendant attempted to elicit testimony from Romeo and from Geneva Ross, unit supervisor at Seaside during April and May of 1987, that was intended to show that the defendant had reported Romeo for an earlier act of client abuse, that Romeo was reprimanded by the department of mental retardation for that abuse, and that Romeo’s allegations regarding the defendant were made in retaliation for the earlier report. The state objected to this line of inquiry on the ground of relevance. Defense counsel argued that the evidence sought was relevant to the credibility of Romeo and to her motives. The trial court sustained the state’s objection.

When faced with a claim of undue restriction on cross-examination, this court must determine (1) whether the defendant was accorded the minimum cross-examination required by the constitution and, if so, (2) whether the court nonetheless abused its discretion. State v. Johnson, 21 Conn. App. 291, 294, 573 A.2d 1218 (1990).

It is not disputed “that in the adversarial setting of a trial, the accused has a right under the confrontation clause ‘to expose to the jury the facts from which the jurors, as the sole triers of fact and credibility, [can] appropriately draw inferences relating to the reliability of the [state’s] witness.’ Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Ouellette, 190 Conn. 84, 101-103, 459 A.2d 1005 (1983).” State v. Kelly, 208 Conn. 365, 375, 545 A.2d 1048 (1988). We also “recognize that cross-examination concerning motive, interest, or bias is a matter of right and may not be unduly restricted.” State v. Fullwood, 199 Conn. 281, 286, 507 A.2d 85 (1986). “The defendant’s right to cross-examination ... is not absolute and is subject to reasonable limitation by the court.” State v. Thompson, 191 Conn. 146, 148, 463 A.2d 611 (1983). Moreover, “[ejvery evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error.” State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985).

A review of the record in the present case discloses that the required constitutional standard was satisfied. The defendant had sufficient opportunity to cross-examine Romeo in order to expose facts affecting her credibility and bias. Romeo clearly voiced her dislike of the defendant. Romeo stated that the defendant “came in on duty and she, in her usual screaming voice, filthy, name calling . ...” In addition, on cross-examination, Romeo testified that she believed that the defendant had damaged her personal property, and stated of that damage: “It was due to her [referring to the defendant]. I was being harassed and intimidated and everything else.” Defense counsel then asked Romeo: “You really hate her, don’t you?” Accordingly, the defendant was permitted to expose facts to the jury regarding the witness’ bias against the defendant, and we conclude that the constitutional requirement has been satisfied.

When the right to cross-examine on bias is not altogether denied, the scope and extent of cross-examination lies in the court’s discretion. State v. Johnson, supra, 296. Under the circumstances in this case, the trial court properly sustained the state’s objection to the proffered evidence. Although cross-examination of a witness concerning bias is a matter of right for the defendant in a criminal trial, and such evidence is relevant concerning the witness’ credibility, we conclude that the trial court’s ruling was not erroneous “[b]ecause of the more than ample opportunity to impeach the credibility of [the witness] afforded the defendant in the cross-examination allowed by the court . . . .” Id.

IV

The defendant’s next claim is that the trial court improperly denied her an opportunity to cross-examine Romeo regarding certain false statements allegedly made by Romeo to police officers. Defense counsel claimed, during an offer of proof, that Romeo told police officers that on April 12, 1987, she heard someone being slapped and observed another client at Seaside exit from where the defendant was with a red, hand shaped mark on her face. Defense counsel stated that that information was used by the officer to help establish probable cause for the defendant’s arrest warrant. During the trial, defense counsel attempted to question Romeo about the statements made to the officers and the state objected. The trial court sustained the state’s objection.

A witness may be impeached by specific acts of conduct that evidence a lack of veracity. State v. Perry, 195 Conn. 505, 523, 488 A.2d 1256 (1985); Martyn v. Donlin, 151 Conn. 402, 408, 198 A.2d 700 (1964); Vogel v. Sylvester, 148 Conn. 666, 675, 174 A.2d 122 (1961); Shailer v. Bullock, 78 Conn. 65, 69, 61 A. 65 (1905). Whether a particular act of misconduct logically indicates a lack of veracity is a question for the court. Vogel v. Sylvester, supra, 675-76. Both the allowance and the extent of cross-examination into the misconduct of a witness is discretionary with the trial court; Martyn v. Donlin, 151 Conn. 402, 408, 198 A.2d 700 (1964); and such evidence may be excluded if irrelevant or if it has a tendency to confuse or impede the litigation by injecting collateral issues into the trial. Vogel v. Sylvester, supra; Robinson v. Atterbury, 135 Conn. 517, 521, 66 A.2d 593 (1949). If the witness, on cross-examination, denies the act of misconduct, the examiner must take the answer given, and may not offer collateral evidence of such conduct. Martyn v. Donlin, supra.

In the present case, defense counsel indicated to the trial court during his offer of proof that he expected to introduce evidence from another witness to establish that the charges made by the witness were untrue. The court was clearly left with this impression. The relevance of defense counsel’s question depended, therefore, on the introduction of collateral evidence. In this context, we cannot say that the trial court abused its discretion in concluding that the questions to be asked by defense counsel were not, in and of themselves, relevant.

V

The defendant’s final claim is that the trial court improperly excluded the copies of the client progress notes that were in the defendant’s possession on the basis that they did not satisfy the business records exception to the hearsay rule. The defendant sought to introduce into evidence portions of a copy of a client progress note as a business record. The defendant claims that the exclusion of these records was improper and harmful. We disagree.

The standards governing the admissibility of evidence proffered under the business records exception to the hearsay rule are set forth in General Statutes § 52-180. The three requirements that must be satisfied are (1) that the record was made in the regular course of business, (2) that it was the regular course of business to make the writing, and (3) that the writing was made at the time of the transaction or occurrence or within a reasonable time thereafter. State v. Waterman, 7 Conn. App. 326, 341, 509 A.2d 518, cert. denied, 200 Conn. 807, 512 A.2d 231 (1986). A proper foundation must be established for the admission of business records and proof must be offered by the proponent of compliance with the conditions imposed by the statute. The sufficiency of the foundation is a question left to the trial court’s discretion. LaFaive v. DiLoreto, 2 Conn. App. 58, 64, 476 A.2d 626, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984). If an abuse of discretion is claimed, it is the appellant’s burden to demonstrate the harmfulness of the error. Darling v. Waterford, 7 Conn. App. 485, 488, 508 A.2d 839 (1986).

“Reproductions of original documents are admissible under the business records exception to the hearsay rule if the conditions set forth in General Statutes § 52-180 (a) are satisfied.” Bukert v. Petrol Plus of Naugatuck, Inc., 5 Conn. App. 296, 299, 497 A.2d 1027 (1985). A copy of a business record is admissible under that statute if (1) the copy was made in the ordinary course of business and (2) the copy accurately reproduced the original on a durable medium. General Statutes § 52-180 (c); Emhart Industries, Inc. v. Amal gamated Local Union 376, U.A.W., 190 Conn. 371, 386, 461 A.2d 422 (1983); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 11.14.4.

In this case, the defendant failed to introduce any evidence indicating that the copies of the records were made in the regular course of business. Nor was any evidence introduced to establish that the process by which they were reproduced accurately formed the copies. The trial court was correct, therefore, in holding that the defendant had failed to satisfy the requirement for introducing a copy of a business record under our statutory exception to the hearsay rule.

Additionally, the defendant has failed to establish the harmfulness of the alleged error. The defendant claims that the exclusion was harmful because the jury had no other evidence supporting the defendant’s claim that the victim was injured by another client on May 23, 1987. The record reveals, however, that the defendant and Romeo both testified that they had observed the victim and another client engaged in an altercation.

The judgment is affirmed.

In this opinion, Daly, J., concurred.

Dupont, C. J.,

concurring. I agree with the majority in its conclusions as to the five issues raised by the defendant. I do not, however, agree with the reasoning of the majority as to the fifth issue, although I do agree that the trial court was correct to exclude from evidence copies of certain records in the defendant’s possession.

In my opinion, the issue raised by the facts of this case is not whether the particular records were copies of records made in the regular course of business but whether the witness, through whom the copies were attempted to be introduced into evidence, was qualified to verify that they were made in the regular course of business.

The client progress notes were offered by the defendant during the cross-examination of the state’s chief witness. At the time of the latter’s testimony, she was no longer employed at Seaside, although she had been employed there as a mental retardation worker at the time of the alleged crime. It does not appear from the record whether the defendant was an employee of Seaside at the time of trial or how the client progress notes came to be in the defendant’s possession.

It is the system and habit of regularity of making business records that give rise to their reliability. Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 385, 461 A.2d 422 (1983). That reliability allows the exception to the hearsay rule on which General Statutes § 52-180 rests. It follows that the witness through whom the records are introduced should be a witness on whom the trial court can depend for the authenticity of the particular document. Id., 386 n.10. This usually means that the witness is an employee at the time of trial and has knowledge of the system for record keeping of the particular business. See id., 386; E. Paul Kovacs & Co. v. Alpert, 180 Conn. 120, 429 A.2d 829 (1980); State v. Paulette, 158 Conn. 22, 255 A.2d 855 (1969); State v. Ferraiuolo, 145 Conn. 458, 144 A.2d 41 (1958).

The question that I believe must be resolved is whether in this case the credentials of the witness were sufficient to allow her to testify to the foundation required for admissibility. A witness must have the necessary status in a particular company’s hierarchy in order to testify to the requirements of § 52-180. See American Oil Co. v. Valenti, 179 Conn. 349, 360, 426 A.2d 305 (1979). The trial court was within its discretion to refuse the admission, as business records, of the copies of the client progress notes in the unexplained possession of the defendant, through a witness who was not the caretaker of the records at the time they were kept and was not shown to have the requisite knowledge to lay the foundation of § 52-180.

       General Statutes § 54-86c provides in pertinent part: “disclosure of exculpatory information OR material, (a) Not later than thirty days after any defendant enters a plea of not guilty in a criminal case, the state’s attorney or deputy assistant state’s attorney in charge of the case shall disclose any exculpatory information or material which he may have with respect to the defendant whether or not a request has been made therefor. If prior to or during the trial of the case, the prosecutorial official discovers additional information or material which is exculpatory, he shall promptly disclose the information or material to the defendant.”

       Practice Book § 741 provides in pertinent part: “[disclosure by the PROSECUTING AUTHORITY] INFORMATION AND MATERIALS DISCOVERABLE BY DEFENDANT AS OF RIGHT
      “Upon a written motion made by a defendant within ten days after the entry of a plea, the prosecuting authority, within the time set by the judicial authority, shall disclose in writing the existence of and allow the defendant to inspect, copy, photograph and have reasonable tests made on any of the following relevant materials:
      “(1) Exculpatory information or materials . . .
      “(3) Adequately identified books, tangible objects, papers, photographs, or documents which are within the possession, custody, or control of any governmental agency, and which are material to the preparation of the defense or are intended for use by the prosecuting authority as evidence in chief at the trial . . . .”

       The sixth amendment to the United States constitution, as applied to the states in Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965), provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . .”

       “The Court: And so . . . then there would follow some collateral evidence by a different witness about what this witness said about the defendant on April 12 was correct or not.”

       General Statutes § 52-180 provides in relevant part: “(c) Except as provided in chapter 3, if any person in the regular course of business has kept or recorded any memorandum, writing, entry, print, representation or combination thereof, of any act, transaction, occurrence or event, and in the regular course of business has caused any or all of them to be recorded, copied or reproduced by any photographic, photostatic, microfilm, microcard, miniature photographic or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless its preservation is otherwise required by statute. The reproduction, when satisfactorily identified, shall be as admissible in evidence as the original in any judicial or administrative proceeding, whether the original is in existence or not, and an enlargement or facsimile of the reproduction shall be likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of court. The introduction of a reproduced record, enlargement or facsimile shall not preclude admission of the original.”


author: O’Connell, J.

text:
    Forox Corporation v. John G. Groppo, Commissioner of Revenue Services
    (8941)
    Daly, O’Connell and Ceetella, Js.

      Argued November 9, 1990
    decision released February 5, 1991

      Edward T. Blair, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant-appellee (defendant).

      Kathleen C. Stone, for the appellee-appellant (plaintiff).
   O’Connell, J.

The defendant commissioner of revenue services (commissioner) appeals from a judgment abating interest on an assessment of Connecticut sales tax and finding that certain component parts were exempt from the use tax. The plaintiff cross appeals claiming that none of the sales of its camera systems should be subject to the sales tax.

The plaintiff is a Connecticut corporation engaged in manufacturing and selling camera systems that consist of various components including camera equipment. The plaintiff develops camera systems that are sold to audiovisual producers and custom photographic laboratories that utilize the camera to produce projection slides or similar products, which are ultimately marketed to consumers. Sales to other types of customers are not involved in this appeal.

The plaintiff’s sales and use tax returns for the years 1980 through 1984 indicated that no tax was due. An audit by the commissioner resulted in the assessment of sales and use taxes which are the subject of this case. The plaintiff appealed the assessment to the Superior Court pursuant to General Statutes § 12-422. The court abated all interest on the sales tax assessment and found that no use tax was due on those component parts used by the plaintiff in manufacturing prototypes of its camera systems.

I

The commissioner’s first argument is that the court lacked authority to base its abatement of interest on the ground of financial hardship. The trial court’s memorandum of decision, however, discloses two grounds for abating the interest: (1) financial hardship; and (2) good faith on the plaintiff’s part in believing that no tax was due. The plaintiff’s good faith is based on the fact that the plaintiff corporation was founded in New York state in 1967 and moved to Connecticut in 1977. When the plaintiff was located in New York, the sales of its camera systems were exempt under the sales tax laws of that state. Upon moving to Connecticut, the plaintiff relied on its accountant’s advice that the sales would continue to be exempt under the Connecticut law as production materials. General Statutes § 12-412 (18).

The commissioner does not dispute that in American Totalisator Co. v. Dubno, 210 Conn. 401, 411, 555 A.2d 414 (1989), the Supreme Court construed General Statutes § 12-422 to include the power of the court to abate interest. Nor does the commissioner contest the validity of abating interest on the basis of the plaintiffs good faith belief that it did not owe the tax. The commissioner’s sole contention is that because the trial court stated two grounds for abatement, one of which he claims is unlawful, this court should vacate the entire judgment. No authority is furnished for this proposition nor are we aware of any. If any stated reason will support a judgment, it would be an unwarranted academic exercise for us to consider the validity of other stated reasons. Butzgy v. Glastonbury, 203 Conn. 109, 116, 523 A.2d 1258 (1987).

We do not reach the question of whether financial hardship is also an appropriate ground for the abatement because the court properly relied on good faith to abate the interest.

II

Some background is necessary to understand our analysis of the commissioner’s second claim. Chapter 219 of the General Statutes establishes a sales and use tax. The sales aspect of the law imposes a tax on sales within this state of tangible personal property. The use aspect of the law imposes a tax on the use in this state of tangible personal property shipped into Connecticut from out of state vendors who have not paid sales tax to this state. This part of the appeal is concerned solely with the use tax aspect of the law. We focus here on the provision of the statute that exempts any “materials . . . which become an ingredient or component part of tangible personal property to be sold . . . .” General Statutes § 12-412 (18). For example, if a Connecticut company made vacuum cleaners and acquired bags for the cleaners from an out of state source, the bags would be component parts of the personal property (i.e., the vacuum cleaner) to be sold and would be exempt from the use tax. If, however, the Connecticut manufacturer set aside some bags to be consumed during research, the exemption would not apply to those bags because they did not become part of property to be sold.

In the present case, the issue is whether the parts used in the plaintiff’s prototype camera systems qualify as a “component part of tangible personal property to be sold . . . .” Most of the parts purchased from out of state vendors were used in established production line camera systems marketed by the plaintiff. As applied to these parts, the production material exemption is not disputed. The problem arises because the plaintiff also uses some of these component parts for its prototype camera systems. As used in this case, the term “prototype” refers to an improved version of a camera system already in production. All the prototypes are eventually sold to customers after first being displayed at trade shows.

The commissioner contends that parts earmarked for prototypes are intended for research and do not qualify for the statutory exemption. In support of this argument, he directs our attention to the plaintiff’s different method of parts accounting and inventorying of prototype parts. He claims this accounting method demonstrates that these parts were intended for research and not for sale. The commissioner also contends that the treatment of these parts on the plaintiff’s federal income tax return is determinative of whether the plaintiff was partially engaged in research. Although evidence of the plaintiff’s federal income tax return may be relevant, the trial court properly did not regard it as controlling. The federal corporate income tax and the Connecticut sales and use tax serve different purposes and the focus of the law on each is different. See Wisconsin Valley Trust Co. v. Commissioner, 538 F.2d 730, 732 (7th Cir.), cert. denied, 429 U.S. 1022, 97 S. Ct. 639, 50 L. Ed. 2d 624 (1976).

The commissioner also argues that displaying the prototype at trade shows prior to sale is an intervening use that demonstrates the plaintiff’s intention not to make the parts a component part of property to be sold at the time of purchase. Whether the plaintiff intended to use the component parts in its prototype for pure research is a question of fact. “On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. See Practice Book [§ 4061]. . . . [W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. That is the standard and scope of this court’s judicial review of decisions of the trial court.” Pandohphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

Applying that standard to the present case, we do not find that the decision of the trial court was clearly erroneous. The trial court found that all prototype machines were sold to customers, thereby resolving against the commissioner the issue of whether the display at a trade show constituted an intervening use that disqualified the parts from the statutory exemption. It also is significant that the court found, inter alia, that the plaintiff did not conduct research, just development. The trial court properly concluded that the plaintiffs purchase of component parts for prototype camera systems qualified for the exemption from the use tax under General Statutes § 12-412 (18).

Ill

In its cross appeal, the plaintiff claims that the court improperly concluded that its camera systems were subject to a sales tax when purchased by a commercial user. This tax exemption argument is grounded on the theory that the plaintiff’s camera systems, in the hands of its customers, qualify as machinery used directly in a manufacturing production process within the meaning of General Statutes § 12-412 (34).

In order to evaluate whether the plaintiff’s commercial users engage in manufacturing with these camera systems, we look to § 12-426-llb (a) (10) of the Regulations of Connecticut State Agencies for guidance. This section defines “manufacturing” in part as an “integrated series of operations which places personal property in a form, composition or character different from that in which it was acquired . . . .”Theregu-lation expressly requires that “[t]he change in form, composition or character must be a substantial change and it must result in a transformation of property into a different product having a distinctive name, nature and use.” (Emphasis added.) Id.

A brief description of the operation of the plaintiffs camera system is necessary at this point. According to the plaintiff, its camera transforms a colorless photostated visual image into a full color slide complete with special effects. This process is accomplished by exposing the photostated image to the raw film contained in the plaintiffs camera system. The raw film while inside the plaintiffs machine is then subjected to light, color, and other special effects. Although this may be an overly simplified description of the internal workings of a sophisticated piece of equipment, stripped of technical jargon, the process is surprisingly similar, if not identical, to a process known as taking a picture. Such a process cannot realistically be labeled manufacturing by this court. We agree with the trial court that it is film that goes into the camera and film that comes out. The fact that the exposed film is then cut and placed into cardboard slide frames does not change its form, composition or character in such a manner as to qualify for a tax exemption.

A similar “manufacturing” tax exemption issue was considered in Connecticut Water Co. v. Barbato, 206 Conn. 337, 537 A.2d 490 (1988). In that case, the Connecticut Water Company argued that its processing system which converted raw water into potable water constituted manufacturing. The water processing system added chemical compounds, removed solids and corrected the water’s odor and taste. In rejecting the tax exemption claim, the Supreme Court held that “[djespite the complexity of the equipment and procedures used by the plaintiff to render its water potable, the fact remains that the plaintiff’s eventual product is still water and it does not carry the ‘distinctive name [and] nature’ required by the regulation. Therefore, the transformation of raw water into finished, potable water at the company’s treatment plant is not a process that constitutes ‘manufacturing’ within the meaning of General Statutes § 12-412 (34).” Id., 344. Similarly, in the present case, the transformation of unexposed film into exposed film does not constitute manufacturing. See Plastic Tooling Aids Laboratory, Inc. v. Commissioner, 213 Conn. 365, 567 A.2d 1218 (1990).

Statutes creating tax exemptions must be strictly construed against the party claiming the exemption. Stop ‘N Save, Inc. v. Department of Revenue Services, 212 Conn. 454, 462, 562 A.2d 512 (1989). We conclude that the trial court properly found that the plaintiff’s camera systems are not exempt sales of machinery used directly in the manufacturing production process within the meaning of General Statutes § 12-412 (34).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 12-422 provides in pertinent part: “appeal. Any taxpayer aggrieved because of any order, decision, determination or disallowance of the commissioner of revenue services under section 12-418, 12-421 or 12-425 may, within one month after service upon the taxpayer of notice of such order, decision, determination or disallowance, take an appeal therefrom to the superior court for the judicial district of Hartford-New Britain . . . .”

       General Statutes § 12-412 provides in pertinent part: “Taxes imposed by this chapter shall not apply to . . . (18) production materials. Sales of and the storage or use of materials . . . which become an ingredient or component part of tangible personal property to be sold or which are used directly in ... an industrial plant in the actual fabrication of the finished product to be sold.”

       The question of whether financial hardship is a lawful basis for abatement of interest will not arise in the future because No. 89-343, § 1, of the 1989 Public Acts removed the power of the court to abate interest on tax assessments for any reason on appeals taken on or after June 9,1989. Public Acts 1989, No.89-343, does not apply to this case.

       Numerous classifications of intangible personal property, not relevant to this appeal, are also subject to the tax. General Statutes § 12-407 (2).

       General Statutes § 12-411 provides in pertinent part: “(1) IMPOSITION and rate. An excise tax is hereby imposed on the storage, acceptance, consumption or any other use in this state of tangible personal property purchased from any retailer ... or the acceptance or receipt of any services constituting a sale . . . at the rate of eight per cent of the sales price of the property or the consideration paid for any such services . . . .”
      The rate of the tax has varied over the years.

       See footnote 2, supra.

       General Statutes § 12-412 provides in pertinent part: “Taxes imposed by this chapter shall not apply to . . . (34) machinery used in manufacturing .... Sales of and the storage, use or other consumption of machinery used directly in a manufacturing . . . production process. The word ‘machinery’ as used in this subsection means the basic machine itself, including all of its component parts and contrivances, such as belts, pulleys, shafts, moving parts, operating structures and all equipment or devices used or required to control, regulate or operate the machinery, but excluding office equipment or data processing equipment other than numerically controlled machinery used directly in the manufacturing process.”

       Section 12-426-llb (a) (10) of the Regulations of Connecticut State Agencies provides: “ ‘Manufacturing’ shall mean the performance as a business of an integrated series of operations which places personal property in a form, composition or character different from that in which it was acquired for sale in the regular course of business by the manufacturer. The change in form, composition, or character must be a substantial change, and it must result in a transformation of property into a different product having a distinctive name, nature and use. Operations such as compounding or fabricating are illustrative of the types of operation which may result in such a change. ‘Manufacturing’ is an activity which shall occur solely at an industrial plant.”