author: HEIMAN, J.

text:
    STATE OF CONNECTICUT v. JAMES LASKY
    (14873)
    O’Connell, Lavery and Ileiman, Js.

      Argued October 2
    officially released November 26, 1996

      Norman A. Pattis, with whom, on the brief, was John R. Williams, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John H. Malone, supervisory assistant state’s attorney, for the appellee (state).
   HEIMAN, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of risk of injury to a child in violation of General Statutes § 53-21. The defendant was acquitted of sexual assault in the second degree and criminal attempt to commit sexual assault in the second degree in violation of General Statutes §§ 53a-49 (a) (1) and 53a-71 (a) (2). The defendant asserts that the judgment is fatally flawed because the trial court improperly (1) denied his motion for a new trial, which he based on his claim of prosecutorial misconduct during the course of the state’s rebuttal argument, and (2) failed to grant a mistrial when the prosecution “attempted blatantly improper impeachment of the defendant in the presence of the jury.” We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. J was born on May 5, 1980, and his younger brother, E, was bom on January 13, 1983. During the year 1990, the brothers resided in the Stowe Village housing project with their mother, Madeline, and other members of their family.

The defendant worked as a terminal manager for Van Com, Inc., a school bus company. During May or June of 1990, the defendant worked at the Hartford terminal, located at 2909 Main Street, adjacent to the Stowe Village housing project.

The defendant was a coowner of a Delorean sports car, and one day in May or June, 1990, he brought the car to the terminal to wash. While he was drying the vehicle, J and three other boys began to question the defendant about the car. At their request, the defendant took the boys for a short ride.

The next day, J returned to the terminal alone and located the defendant. He told the defendant that he lived in the Stowe Village housing project with his family. J began stopping by the temiinal several times a week and occasionally brought his seven year old brother, E, with him. The defendant paid J a few dollars to do odd jobs around the terminal yard.

Between May and November, 1990, the defendant developed a relationship with the boys’ family. He took the whole family out to dinner on occasion. Madeline occasionally stopped at the terminal to talk with the defendant.

In November, 1990, Madeline, her boyfriend Norberto, J, E and two of the boys’ sisters, moved from Hartford to Puerto Rico. While there, Madeline spoke with the defendant on the telephone about once a week.

Sometime in January, 1991, Madeline called the defendant and asked if he would be willing to have J live with him temporarily. The defendant, who at that time was living with his mother in East Hartford, agreed to have J come to Connecticut and live with him and his mother. The defendant purchased an airline ticket for J, and J flew from Puerto Rico to Hartford.

The defendant was unable to enroll J in school because he lacked documentation establishing that he was J’s legal guardian. The defendant and J flew to Puerto Rico where legal documents were prepared vesting custody of J in the defendant. On their return from Puerto Rico, J was enrolled in the East Hartford school system and lived with the defendant and his mother until June, 1991, when, after school ended, J returned to his family in Puerto Rico.

In September, 1991, the defendant moved into a house in Tolland, Massachusetts, and was joined by J, Madeline, Norberto, E and two of his sisters, all of whom had returned from Puerto Rico. After a short period of time, Madeline and her two daughters moved to Hartford. Madeline asked the defendant if he and Norberto would continue to care for the two boys, and the defendant agreed. Around Christmas, 1991, Norberto moved, leaving the defendant alone with the two boys.

Between January, 1992, and June, 1993, J, E and the defendant continued to reside together but moved to a series of apartments in the Southwick, Massachusetts, area. In June, 1993, the defendant rented a house at 407 Wamertown Road, West Suffield. For a few months, a woman and her son also occupied the house with the defendant and the two boys.

During the winter of 1993-1994, J was thirteen years old and in the seventh grade. During this period, the defendant would enter J’s bedroom and fondle his penis. J would awaken from the actions of the defendant and tell him to stop. The defendant would stop, but would return on other nights and repeat the conduct. On one occasion the defendant attempted to insert his finger into J’s rectum. J punched the defendant in the face, blackening his eye. J was too embarrassed to tell anyone what had occurred.

During the same time period, the defendant would enter E’s bedroom before E fell asleep and would place his hand under E’s clothing and fondle his penis. On one occasion the defendant placed E’s penis in his mouth. E pushed the defendant away. The defendant told E not to tell anyone what had occurred. E did not tell anyone about what the defendant had done to him until May, 1994, when he moved in with his grandmother at Charter Oak Terrace in Hartford.

On May 18 and 19, 1994, J stayed overnight at a friend’s house without telling anyone where he was. In the afternoon of May 19, the defendant located J and immediately transported him to his grandmother’s apartment and left him with her. E remained with the defendant.

J told his grandmother that he would not go back to live with the defendant. He also told his grandmother about the sexual acts performed on him by the defendant.

On May 21, 1994, the defendant took E to his grandmother’s apartment to spend the weekend. During that weekend, E told his grandmother that the defendant had committed sexual acts upon him.

Madeline was confined to prison from March to May, 1994. J and E were in contact with her by telephone. On Monday, May 23, 1994, the defendant went to New-town to pick up Madeline upon her release. He then took her to her mother’s apartment in Hartford where the two boys were staying. The defendant dropped Madeline off and then went to work. When the defendant returned to Madeline’s mother’s apartment, Madeline confronted him with the accusations that the boys had made concerning acts of sexual impropriety committed upon them by the defendant. Both boys repeated the claims in the defendant’s presence. The defendant denied that he committed any of these acts and called the boys liars. When Madeline’s brother arrived and confronted the defendant, the defendant left the premises.

The defendant went to his home, packed some clothes and left. He spent the night in his truck. The next day he visited several banks, withdrew money from his account, took cash advances against his credit cards and flew to Mexico City. A warrant was issued for his arrest on June 16, 1994. The defendant returned to Connecticut on July 7,1994, and was arrested pursuant to the warrant.

At trial, the defendant testified in his own defense. He asserted that J was a troubled youth who was continuously in difficulty at home and at school. His difficulties at school resulted in his being suspended. The defendant further testified that J had been involved with the police and that he was a liar and a thief who controlled and abused his brother, E. The defendant also claimed that the black eye incident resulted from his having discovered that J had stolen money from a cup that he kept on top of his refrigerator. Moreover, he claimed that J had assaulted him on six or seven different occasions.

The defendant also asserted that about one month before the boys made their accusations against him, they had been discussing the Michael Jackson sexual abuse case. He claimed that J thought it was “a pretty neat thing” that this boy near his own age received $20 millón on a sexual abuse claim.

The defendant claimed that Madeline had attempted to extort $10,000 from him. He further testified that things said by Madeline and her brother put him in fear of his personal safety. He felt that he might be unsafe in his own home, thus he spent the night in his truck and the left the next day for Mexico. He claimed to have made contact with legal counsel because he believed he needed counsel as a result of the extortion attempt and the threats on his life. He also testified that as soon as he was made aware of the issuance of the arrest war - rants, he returned to Connecticut and surrendered.

I

The defendant first asserts that the trial court improperly denied his motion for a new trial, which he based on his claim of prosecutorial misconduct during the course of the state’s rebuttal argument. The defendant posits that even though the trial court gave a curative instruction at the very outset of its instructions to the juiy, the defendant was nonetheless irreparably prejudiced by the egregious nature of the state’s argument. We are not persuaded.

We first note that the defendant’s claim with respect to the rebuttal argument by the state must be divided into two parts, one raising an issue properly preserved, and a second, on which he seeks review under the rubric of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We thus address these claims separately.

A

We first address the preserved claim. Certain additional facts are necessary to a resolution of this claim. In the course of the rebuttal argument, the prosecutor stated: “You never, you never know who you are going to get involved with. When you turn over a rock, you don’t know what’s going to come out. You have cases of clergy, priests that take these actions—archbishop, I believe was in the papers of late, but as bad as that is, it is worse to keep it a secret, but you never know. You get somebody like a defendant who is this defendant, who has a good job, and appears on the surface to take care of the boys. When you look at him, keep in your minds the same thing that would be found in some of the priests. They are the same veracity you believe is true. It is not so surprising that a person who has good character . . . does that. You see it every day.” The defendant did not interrupt the argument to interpose an objection to the prosecutor’s statement.

At the completion of the rebuttal argument and before the jury instructions were given, the court recessed. Before the jury was returned to the courtroom, the defendant began to interpose an objection to the quoted portion of the state’s rebuttal. The trial court responded by telling counsel that it intended to instruct the jurors in its charge that they should consciously disregard the state’s argument concerning the priests and archbishop.

The jurors were brought back into the courtroom and the trial court proceeded to instruct them with respect to the impropriety of the prosecutor’s argument. The defendant did not object to the trial court’s instructions to the jury that it disregard the improper remarks made during the course of the rebuttal argument, nor did the defendant request that the trial court elaborate on the instruction or give additional instructions to the jury concerning that occurrence.

We first note that our review of the trial court’s instruction to the jury regarding the impropriety of the state’s argument and the jury’s duty to disregard that argument convinces us that the court sufficiently and forcefully directed the jury’s attention to its obligation not to consider that argument. See State v. Carter, 34 Conn. App. 58, 86, 640 A.2d 610 (1994), rev’d on other grounds, 232 Conn. 537, 656 A.2d 657 (1995). Moreover, we presume, absent a fair indication to the contrary, that the jury followed the instruction of the court as to the law. State v. Just, 185 Conn. 339, 357, 441 A.2d 98 (1981). There is nothing to indicate that the jury failed to follow the instructions of the court and thus the defendant’s claim of prejudice is unsupported by the record.

The defendant bears the burden of establishing that the prosecutor’s statement was prejudicial in light of the entire proceeding. State v. Carter, supra, 34 Conn. App. 86-87. “[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor. ...” (Citations omitted; internal quotation marks omitted.) Id., 87.

The remark of the prosecutor concerning sexual abuses committed by members of the clergy constituted a brief and isolated incident in the course of a rebuttal summation. Our review of the entire transcript, including the arguments of both counsel, and a review of the trial court’s extensive instruction to the jury to disregard the improper argument do not reveal a pattern of misconduct repeated throughout the course of the trial, or one that was blatantly egregious. Moreover, “[a] prompt cautionary instruction to the jury regarding improper prosecutorial remarks obviates any possible harm to the defendant. ...” (Citations omitted; internal quotation marks omitted.) Id., 87. Thus, we conclude that the isolated remark did not impact negatively on the fairness of the trial.

The defendant’s reliance on State v. Couture, 194 Conn. 530, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985), is misplaced. Unlike in this case, in Couture the arguments of the prosecutor were laced with repeated personal references to the defendant and his codefendant “characterizing them, inter alia, as ‘murderous fiends,’ ‘rats,’ ‘utterly merciless killers’ and ‘inhumane, unfeeling and reprehensible creatures.’ The defendant’s repeated objections to these remarks on the defendant’s character were overruled and his requests for curative instructions were denied. At the conclusion of this opening summation, the defendant moved in the alternative for a mistrial or for the court to strike [the prosecutor’s] entire summation or those portions which the defendant recited on the record, together with ‘the strongest possible instructions to the jury to disregard all such comments.’ ” Id., 561. The trial court denied the motion but at the conclusion of its charge instructed the jury, “ ‘not to be inflamed by the passionate nature of [the prosecutor’s] argument or by his repeated personal comments on the defendants.’ ” Id. The court further instructed the jury “ ‘not to consider any personal observations of his as to the guilt or innocence of the defendants, or as to the credibility of any witness.’ ” Id.

In Couture, the remarks were pervasive and the trial court’s belated instruction at the end of the entire charge did little to lessen the personal attack on the character of the defendants. Moreover, the remarks constituted a statement by the state’s attorney concerning his personal belief in the guilt of the accused, an action that is precluded. Id., 562.

We conclude that, here, the improper remark was isolated, and any potential prejudice to the defendant was obviated by the prompt and proper curative instructions by the trial court. The trial court did not abuse its discretion and acted properly in denying the defendant’s motion for a new trial.

B

The defendant raises for the first time on appeal a claim that another portion of the prosecutor’s rebuttal argument constituted prosecutorial misconduct. In the course of the rebuttal, the prosecutor argued that while some people believe that the large number of child sexual abuse cases recently coming to the fore signifies that the system is failing, he believes that it merely symbolizes a healthy societal closet cleaning. The defendant concedes that this portion of the misconduct claim was not properly preserved and thus seeks review under the doctrine of State v. Evans, supra, 165 Conn. 61, and State v. Golding, supra, 213 Conn. 239-40.

We are persuaded that “[cjorrectly identified . . . this unpreserved claim of prosecutorial misconduct is merely masquerading as a constitutional claim and therefore must be summarily dismissed.” State v. Peruta, 24 Conn. App. 598, 608, 591 A.2d 140, cert. denied, 219 Conn. 912, 593 A.2d 137 (1991). “While we do not deny that prosecutorial misconduct of constitutional proportions may arise during the course of closing argument, thereby implicating the fundamental fairness of the trial itself . . . we have long held that Evans review of such a claim is unavailable where the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial. . . . Although certain remarks made by the prosecutor, from hindsight, may be deemed imprudent, such isolated and brief episodes . . . fail to implicate the denial of the defendant’s constitutional right to due process.” (Citations omitted.) State v. Somerville, 214 Conn. 378, 393, 572 A.2d 944 (1990).

We conclude that, under the circumstances of this case, the prosecutor’s remarks did not rise to the level of egregious misconduct that would implicate the defendant’s constitutional right to due process.

II

Finally, the defendant asserts that the trial court acted improperly when it denied the defendant’s motion for a mistrial interposed during the cross-examination of the defendant. We are unpersuaded.

Certain additional facts are necessary for an understanding of the defendant’s claim and our resolution of it. During the state’s cross-examination of the defendant, the prosecutor asked the defendant whether there had been any prior child sexual assault complaints made against him. The defendant objected to the question and the trial court sustained the objection. Immediately thereafter, the prosecutor asked if the defendant knew a certain individual, R. The defendant objected to this question. Out of the presence of the jury, the defendant moved for a mistrial on the basis of the prosecutor’s question, claiming that the prosecutor had attempted blatantly improper impeachment of the defendant in the presence of the jury. The trial court sustained the objection and the prosecutor withdrew the question. The defendant filed a postverdict motion for a new trial on the basis of a claim of misconduct on the part of the prosecutor in propounding this series of questions.

We note at the outset that the defendant objected to the state’s questions regarding the existence of any prior complaints and the objection was sustained by the trial court. Second, the question relating to the defendant’s knowing a particular individual was objected to, and, after argument held at the defendant’s request in the absence of the jury, the question was withdrawn and was not repeated in the jury’s presence. Moreover, the defendant did not request that the trial court give any form of limiting instruction concerning these unanswered questions.

In the course of its instructions to the jury, the trial court told the jury that the evidence to be considered by it was the sworn testimony of the witnesses and the exhibits placed in evidence. The jury was also instructed that it may not go outside the evidence to find facts nor was it to engage in guesswork, conjecture or suspicion. Furthermore, the trial court specifically instructed the jury that questions and objections by the lawyers were not evidence.

“The decision as to whether to grant a motion for a mistrial ... is one that requires the trial court to exercise its judicial discretion. . . . Our review of the trial court’s exercise of its discretion is limited to questions of whether the court correctly applied the law and could reasonably have concluded as it did. . . . Every reasonable presumption will be given in favor of the trial court’s ruling. . . . It is only when an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court’s exercise of discretion.” (Citations omitted; internal quotation marks omitted.) State v. Lucci, 25 Conn. App. 334, 341-42, 595 A.2d 361, cert. denied, 220 Conn. 913, 597 A.2d 336 (1991).

Applying this standard of review to the defendant’s claim, we conclude that the trial court did not abuse its discretion in denying the defendant’s motion for mistrial. We note that the trial court sustained the objection to the one question to which objection was made and the second question objected to was withdrawn by the prosecutor and was not repeated. We also note that no request was made by the defendant at the time of the occurrence for any form of curative instruction from the trial court. Moreover, the trial court in the course of its charge to the jury, properly instructed the jurors that they could not go outside of the evidence in the case, that the evidence consisted only of the testimony of witnesses and the exhibits, and that questions were not evidence.

“[T]he burden is on the defendant to establish that, in the context of the proceedings as a whole, the question was so prejudicial that it deprived him of a fair trial.” (Internal quotation marks omitted.) State v. Cruz, 212 Conn. 351, 365, 562 A.2d 1071 (1989). “Even if the questions were improper, as the trial court apparently decided they were, the fact that the questions were asked is not enough to deprive the defendant of a fair trial, particularly where the court gave an appropriate cautionaiy instruction to the jury.” State v. Person, 20 Conn. App. 115, 132, 564 A.2d 626 (1989), aff'd, 215 Conn. 653, 577 A.2d 1036 (1990), cert. denied, 498 U.S. 1048, 111 S. Ct. 756, 112 L. Ed. 2d 776 (1991).

We conclude that the defendant has failed to establish that he was prejudiced by the unanswered questions and also failed to establish that the trial court abused its discretion in denying his motion for a mistrial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53-21 provides: “Anyperson who wilfully orunlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       The colloquy among counsel and the court was in pertinent part as follows:
      “Mr. Norris [Defense Counsel]: Thank you very much, Your Honor. I did not object during Mr. Malone’s—
      “The Court: I intend to address those issues with respect to my charge.
      “Mr. Norris: Your Honor’s reading my mind. Your Honor, I felt that I didn’t want to object, but the rule is absolutely clear that you cannot speak to matters outside the record or reasonable inferences drawn from the evidence in the case. I certainly did not, I didn’t invite those comments, and I want to make that statement for the record, but obviously I can be blamed if I invited something that’s improper and I did not invite it, and I think it is seriously prejudicial to the defendant in this case.
      “The Court: Okay. Did you want to be heard on this, Mr. Malone?
      “Mr. Malone [Assistant State’s Attorney]: I think it came in the middle of a conversation, Your Honor.
      “The Court: The objection that’s being raised is that it was improper for you really—in any ways to link or suggest any linkage of this case to the c:ase involving priests or anybody else, that’s really totally improper argument. It is not something that the jury should consider. It is no—this case—the societal values of this case are of no importance or concern to them. They are finders of fact only, and to link this or suggest that there is some linkage between this case because of [Hie defendant’s] demeanor, his employment, his education, to priests or archbishops I consider to be improper, and Mr. Norris raised the issue and I think he’s correct, you should not be arguing that to the jury.
      “Mr. Malone: The import of my arguments was that it should be dealt with openly and honestly, and if I—I was not intending to—I can see where I don't think your view is unreasonable, but I am saying what I said, Mr. Norris, is what I intended and to the extent that my unintended comments have left Mr. Norris, the defendant, or the court with the wrong impression, I apologize to all and would like to restate what I am intending to do.
      “The Court: I understand that, it is not nothing with the impression that’s left on Mr. Norris, but it is the impression that’s left on the jurors.
      “Mr. Malone: It is more to it than that case, I didn’t do it to take cheap shots, and it was intended—and I want to make it clear that it is not, it is not the way that I am treated by the court. It is not the way Mr. Norris treated me during this trial, which I think was on the highest level, and to that extent, and it was, please believe me it was unintended, and it’s like Mr. Appleton, do you remember the—what’s that—if I could just—if you just give me a minute, it is the case with the doctor in West Hartford, who killed his wife, and he gets up there and says that the doctor should be held to a higher standard than other people, and that’s—and if the court would permit me, as Judge Corrigan permitted Mr. Appleton, if I could apologize to the jury, I would like to do it personally because I really feel that this is not what I do, and it was not intended, and if the court would permit me, I would ask to do it. If I couldn’t, I understand.
      “The Court: What I am going to do is I am going to tell 1 he jury that during the course of any final arguments that you made reference to other cases of other types of sexual assaults or sexual abuse cases that gained a lot of notoriety and that you, you brought out theories of sexual abuse and things of that nature, and that that is not evidence, and that was not really proper for you to do that, and I am going to advise them that they should consciously disregard that, that there can be no possible linkage between this case and any other case in the past which will happen in the future.
      “Mr. Malone: Would Your Honor indicate in the future that that’s not what I intended, to the extent that it does apologize?
      “The Court: I will. Is that okay with you, Mr. Norris?
      “Mr. Norris: It is, Your Honor, thank you.”

       Upon the return of the jury to the courtroom, the trial court stated: “Ladies and gentlemen, before I begin to give you my charge on the law in this case, I want to bring something to your attention. During his closing arguments, Mr. Malone made reference to other cases of sexual abuse that have gained considerable notoriety over the past years in terms of members of clergy. He also made reference to certain theories, this he said concerning sexual abuse, and the types of sexual abuse and the mental state of the children and so forth, specifically with respect to any other case or cases involving allegations of sexual abuse. That argument was not proper. That is not something that should be considered by you, should not have been something raised by him, and in his defense, I am sure, he didn’t mean to imply that because these other events took place that this also took place. I think he was trying to perhaps indicate that these are matters that seem to be coming to the [fore] in recent years, but it was not proper for him to draw your attention and I am going to instruct you to consciously disregard that. You must not link this case with any case that has ever taken place in the past. You must not link it with anything that may happen in the future. Your job is the trier of fact. You are limited to determining the facts in this case only. It has nothing to do with any other case or any other circumstances or any other people. Only [the defendant] is involved in this case and for you to in any way link this case with other cases or cases which have been given publicity would be wrong. It would be unfair to [the defendant]. It would be unfair to yourselves and the system, so I will instruct you not to do that and to attempt to disregard those remarks which were made during the course of his argument as it relates to any other case.”

       The prosecutor’s remarks were: “You know, it’s said that the true measure of any civilization is how well they treat their old people and how they treat their young people. That is when we know that civilization has progressed. They treat their old people with dignity—with dignity, and their young people with dignity. Now, over the years we have had in this society a lot of instances of sexual assault come into play. There are some that think our system is failing. I am not one of those. I am very optimistic, and the reason I am optimistic is this, is that we have always had this in the closet and secrets in civilization and thought everything was going well. Now at last we are bringing these things out in the open, and talking about them, and dealing with them honestly and openly, and yet finally if the allegations are true, they should be dealt with and if not true, they should be summarily dismissed. No question about it, but I think the fact that we have, the fact that we have all of these disclosures, once you sort them out and look at them, in fact that we have cases like this is a healthy measure of our civilization that we are dealing with the problem openly and firmly; so I am notone of those who say that it is abreakdown, and I am not so pessimistic.”

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the s1 ate has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant to the particular circumstances.” State v. Golding, supra, 213 Conn. 239-40.

       We note these additional factors: “[I]n addressing the jury [cjounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . .’’(Citations omitted; internal quotation marks omitted.) State v. Richardson, 214 Conn. 752, 760, 574 A.2d 182 (1990). Moreover, in this case, trial counsel for the defendant, “who had been assiduous in his protection of the rights of the defendant throughout the trial, was so unimpressed by the alleged prosecutorial misconduct that he neither objected to the remarks nor asked for a curative instruction [nor did he seek a new trial on the basis of this remark].” State v. Lucci, 25 Conn. App. 334, 348, 595 A.2d 361, cert. denied, 220 Conn. 913, 597 A.2d 336 (1991).

       “[Assistant State’s Attorney]: Was that your testimony, sir—
      “[The Defendant,]: I’m sorry.
      “Q. —that you wouldn’t do anything like that, its not—you wouldn’t do anything like that to [J] or [E]?
      “A. I did not do what was alleged, sir.
      “Q. You don’t remember saying you wouldn’t do anything like that to them?
      “A. I would have to hear the testimony, sir.
      “Q. All right. Now you testified that you remember [J] saying something about that Michael Jackson situation. Do you recall that,, sir?
      “A. Yes, sir, I do.
      “Q. And did you have any concerns after he said that, that there may be complaints against you?
      “A. No, I didn’t at the time, no.
      “Q. And you never had any complaints like that against you before?
      “[Defense Counsel]: Your Honor, I object, this whole question—
      “The Court: The objection to that question is sustained.
      “[Assistant State’s Attorney]: Do you know an individual by the name of [R], sir?
      “[Defense Counsel]: Your Honor, I object for relevance and ask the jury
      to be excused, and I wish to address the court out of the hearing—
      “The Court: All right, we will excuse the jury for a minute. You can stretch your legs.
      [Jurors excused from the courtroom.]

        “[Defense Counsel]: First of all I want to move for a mistrial, and I would move for a mistrial at this time on the basis of the question of the prosecutor which he knows is categorically improper. You cannot ask someone whether you [have] ever been the subject of a complaint. We have laws that are specific with respect to the matters of convictions that can be used to impeach someone, and whether someone is the subject of a complaint is not a proper subject matter for impeachment of a witness. He knows better. This other, this area here that he is going into is not a subject matter for impeachment of this witness.
      “The Court: I have no idea what he is going into at this point. Your motion for mistrial is denied as to the—I don’t know who this person is that he mentioned. I don’t know where that came from, so I am not in a position to be able to make any kind of ruling. What is that all about, [assistant state’s attorney]?
      “ [Assistant State’s Attorney]: Your Honor, it has to do with his—two parts of his testimony, one, that he would never do anything like this to [J] and my recollection is that’s what he said, and he was—that [J] had made some kind of statements about Michael Jackson, making complaints and getting some money from him, and my question to him was whether it caused any concern that that might happen to him, and the follow-up is that whether he had ever had complaints—
      “The Court: I sustained the objection to it, so that’s out, so what’s Mr. R—I don’t know what that is. Who is Mr. R? I don’t know where you came, I think that’s where the next objection is coming from. I have no idea.
      “[Assistant State’s Attorney]: I will withdraw the question, Your Honor.
      “The Court: Okay, but are we going to get back into that again?
      “[Assistant State’s Attorney]: No, I won’t go any further.”
      The jury returned to the courtroom.


source: Caselaw Access Project

author: GLASS, J.

license: Public Domain

text:
    CHESTER KOLAKOWSKI v. NANCY HADLEY, COMMISSIONER OF MOTOR VEHICLES
    (14909)
    Dupont, C. X, and Lavery and Glass, Js.

      Argued September 17
    officially released December 3, 1996

      Priscilla J. Green, assistant attorney general, with whom, on the brief, was Richard, Blumenthal, attorney general, for the appellant (defendant).

      Milo J. Altschuler, for the appellee (plaintiff).
   GLASS, J.

The plaintiff, Chester Kolakowski, appealed to the Superior Court from the suspension of his motor vehicle operator’s license by the defendant commissioner of motor vehicles (commissioner) pursuant to General Statutes § 14-227b, the implied consent statute. The trial court sustained the plaintiffs appeal. On appeal to this court, the commissioner claims that the trial court improperly sustained the plaintiffs appeal because there is substantial evidence to support the commissioner’s decision to suspend the plaintiffs operator’s license. We agree and reverse the judgment of the trial court.

The record discloses the following facts relevant to this appeal. At about 12:45 a.m. on February 18, 1994, Officers Jeffrey Bender and Gary Krassner of the Anso-nia police department were stopped in the middle of Crescent Street with their vehicles facing in opposite directions. While they were stopped, a pickup truck drove up and stopped behind Krassner’s vehicle. Kras-sner drove away and the truck followed. As the truck passed his vehicle, Bender recognized the driver as the plaintiff. Bender also noticed that the plaintiff was alone. Bender turned his vehicle around to follow the plaintiff because, as Bender testified, “I know [the plaintiff] had recently gone through another [driving while under the influence (DWI)] proceeding and I wanted to see if his license was under suspension or not. . . .” When the plaintiff reached the intersection of Crescent Street and Howard Avenue, he made a right turn onto Howard Avenue without signaling in violation of General Statutes § 14-242. Bender continued to follow the plaintiff and activated the overhead lights of his police vehicle. The plaintiff continued driving until he reached his home on Howard Avenue, pulled into his driveway and turned off the lights and engine. Bender and Kras-sner drove their vehicles into the driveway behind the plaintiffs truck, walked up to the driver’s side door and knocked on the window. The plaintiff opened the door and Bender asked for the plaintiffs operator’s license, registration and insurance identification card. The plaintiff replied, in a slurred, mumbled voice, “I don’t have a license.” Thereafter, the plaintiff exited his vehicle and, in response to Bender’s inquiry, admitted to Bender that he had been drinking. In addition, the plaintiff denied that he had been driving the vehicle, even though he was the sole occupant and Bender had observed him driving. As he spoke with the plaintiff, Bender detected that the plaintiff had a strong odor of alcohol, that he spoke with slurred speech, that he had a “droopy expression,” and that he walked with a severe stagger, running his hand along his truck to balance himself. The plaintiff refused to take any field sobriety tests and was placed under arrest for driving while under the influence of alcohol or drugs and making a turn at an intersection without giving an appropriate signal in violation of §§ 14-227b and 14-242, respectively.

At the police station, the plaintiff refused to submit to a test of his blood alcohol level. On the basis of Bender’s report and the plaintiffs refusal to submit to a test, the commissioner sent a notice of the proposed suspension of the plaintiffs operator’s license pursuant to § 14-227b (c) and (d). The plaintiff requested and was subsequently given an administrative hearing on the proposed two year license suspension pursuant to § 14-227b (f).

On March 30, 1994, a hearing was held before Jeffrey Donahue, a department of motor vehicles hearing officer. Bender’s testimony, the “Officer’s DWI Arrest and Alcohol Test Refusal or Failure Report” and an attached narrative report were admitted into evidence without objection. Donahue issued his decision on March 31, 1994, finding that (1) the police officer had probable cause to arrest the plaintiff for violating § 14-227b, (2) the plaintiff was placed under arrest, (3) the plaintiff refused to submit to a test to determine his blood alcohol level, and (4) the plaintiff was operating the motor vehicle. See General Statutes § 14-227b (f). On the basis of these findings, the commissioner suspended the plaintiffs driver’s license pursuant to § 14-227b (h) (3), which provides that an operator’s license is to be suspended for two years where such a driver has previously had his license suspended under § 14-227b on at least two other occasions.

The plaintiff appealed the suspension to the Superior Court, claiming that (1) Bender did not have a reasonable and articulable suspicion justifying a stop of the plaintiffs vehicle, and (2) Bender did not have probable cause to arrest the plaintiff. The trial court determined that, while the police officer’s investigatory stop was justified because of the plaintiffs violation of § 14-242, the record did not provide substantial evidence to support the hearing officer’s finding that the police had probable cause to arrest the plaintiff. The court concluded, therefore, that the commissioner had acted unreasonably, arbitrarily and in abuse of his discretion. This appeal followed.

“In cases involving administrative appeals it is not the function of this court, nor was it the function of the trial court, to retry the case or to substitute its judgment for that of the administrative agency. . . .” (Citation omitted; internal quotation marks omitted.) O’Rourke v. Commissioner of Motor Vehicles, 33 Conn. App. 501, 506, 636 A.2d 409, cert. denied, 229 Conn. 909, 642 A.2d 1205 (1994). A reviewing court “shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions ... (5) clearly erroneous in view of the rehable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. ...” General Statutes § 4-183 (j). “If the [commissioner’s] determination to suspend the plaintiffs license pursuant to § 14-227b is supported by substantial evidence in the record, that determination must be sustained.” O’Rourke v. Commissioner of Motor Vehicles, supra, 507. It is, however, “the function of the courts to expound and apply governing principles of law. ...” (Citations omitted; internal quotation marks omitted.) Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 521, 560 A.2d 403 (1989).

The commissioner asserts that the trial court improperly concluded that there was not substantial evidence in the record to support the hearing officer’s decision that the police had probable cause to arrest the plaintiff for driving while under the influence of intoxicating liquor. See General Statutes § 14-227b (f) (1).

“In Connecticut, probable cause is required before an arrest may be made for operating under the influence of alcohol.” State v. Stevens, 26 Conn. App. 805, 810, 603 A.2d 1203, aff'd, 224 Conn. 730, 620 A.2d 789 (1992). Section 14-227b (c) requires a police officer to include in the incident report “the grounds for the officer’s belief that there was probable cause to arrest . . . for operating a motor vehicle while under the influence of intoxicating liquor . . . .” Probable cause exists if there are “facts and circumstances within the officer’s knowledge, and of which he has trustworthy information sufficient to justify the belief of a reasonable person that an offense has been or is being committed. State v. Kaplan, [20 Conn. App. 183, 187, 565 A.2d 11 (1989)], quoting State v. Copeland, [205 Conn. 201, 213, 530 A.2d 603 (1987)] . . . .” (Citation omitted; internal quotation marks omitted.) State v. Stevens, supra, 811.

On the basis of the objective facts and circumstances as they were available to Bender that night, the trial court improperly found that the police did not have probable cause to arrest the plaintiff. The plaintiff failed to stop after Bender had activated the overhead lights oil the police vehicle. Bender reported that the plaintiffs speech was slurred, and that he smelled of alcohol, staggered severely when he walked, and had a droopy expression. In addition, the plaintiff admitted that he had been drinking and denied driving the vehicle despite being its only occupant. These facts, in light of the plaintiffs refusal to submit to a blood alcohol test, are more than sufficient to establish probable cause.

We conclude that the record contains substantial evidence supporting the commissioner’s finding that the police officer had probable cause to arrest the plaintiff for operation of a motor vehicle while under the influence of intoxicating liquor. Thus, the trial court improperly held that the commissioner acted unreasonably, arbitrarily and in abuse of its discretion.

The plaintiff argues, however, that even if we conclude, as we have, that the commissioner’s decision was supported by substantial evidence, we can, nevertheless, affirm the trial court’s decision on an alternate ground. See Practice Book § 4013 (a) (l). Although the trial court concluded that the officer’s investigative stop was justified, the plaintiff asserts that the police did not have a reasonable and articulable suspicion to justify stopping the plaintiff.

A brief investigatory detention by a police officer is proper, “ ‘even in the absence of probable cause, if the police have a reasonable and articulable suspicion that aperson has committed or is about to commit a crime.’ ” State v. Harrison, 30 Conn. App. 108, 111, 618 A.2d 1381 (1993), aff'd, 228 Conn. 758, 638 A.2d 601 (1994), quoting State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990). An investigative stop can be appropriate even where the police have not observed a violation because “a reasonable and articulable suspicion can arise from conduct that alone is not criminal.” State v. Harrison, supra, 113.

Here, Bender observed the plaintiff make a right turn at an intersection without signaling in violation of § 14-242. This fact is sufficient, on its own, to justify an investigative stop. Ivimey v. Watertown, 30 Conn. App. 742, 750, 622 A.2d 603, cert. denied, 226 Conn. 902, 625 A.2d 1375 (1993). We conclude that the substantial rights of the plaintiff have not been prejudiced because the police officer had a reasonable and articulable suspicion that justified making an investigative stop.

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

In this opinion the other judges concurred.

       General Statutes § 14-227b provides in pertinent part: “(a) Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, breath or urine and, if said person is a minor, his parent or parents or guardian shall also be deemed to have given his consent.
      “(b) If any such person, having been placed under arrest for ... operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and thereafter, after being apprised of his constitutional rights, having been requested to submit to a blood, breath or urine test at the option of the police officer, having been afforded a reasonable opportunity to telephone an attorney prior to the performance of such test and having been informed that his license or nonresident operating privilege will be suspended in accordance with the provisions of this section if he refuses to submit to such test or if he submits to such test and the results of such test indicate that the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight, and that evidence of any such refusal shall be admissible in accordance with subsection (f) of section 14-227a and may be used against him in any criminal prosecution, refuses to submit to the designated test, the test shall not be given; provided, if the person refuses or is unable to submit to a blood test, the police officer shall designate the breath or urine test as the test to be taken. The police officer shall make a notation upon the records of the police department that he informed the person that his license ornonresident operating privilege would be suspended if he refused to submit to such test or if he submitted to such test and the results of such test indicated that the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight.
      “(c) If the person arrested refuses to submit to such test or analysis . . . the police officer, acting on behalf of the commissioner of motor vehicles, shall immediately revoke and take possession of the motor vehicle operator’s license. . . for a twenty-four-hour period and shall issue a temporary operator’s license ... to such person valid for the period commencing twenty-four hours after issuance and ending thirty days after the date such person received notice of his arrest by the police officer. The police officer shall prepare a written report of the incident and shall mail the report together with a copy of the completed temporary license form, any operator’s license taken into possession and a copy of the results of any chemical test or analysis to the department of motor vehicles within three business days. The report shall be made on a form approved by the commissioner of motor vehicles and shall be subscribed and sworn to under penalty of false statement as provided in section 53a-157b by the arresting officer. If the person arrested refused to submit to such test or analysis, the report shall be endorsed by a third person who witnessed such refusal. The report shall set forth the grounds for the officer’s belief that there was probable cause to arrest such person for . . . operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and shall state that such person had refused to submit to such test or analysis when requested by such police officer to do so ... .
      “(d) Upon receipt of such report, the commissioner of motor vehicles shall suspend any license or nonresident operating privilege of such person effective as of a date certain, which date shall be not later than thirty days after the date such person received notice of his arrest by the police officer. Any person whose license or operating privilege has been suspended in accordance with this subsection shall automatically be entitled to a hearing before the commissioner to be held prior to the effective date of the suspension. The commissioner shall send a suspension notice to such person informing such person that his operator’s license or nonresident operating privilege is suspended as of a date certain and that he is entitled to a hearing prior to the effective date of the suspension and may schedule such hearing by contacting the department of motor vehicles not later than seven days after the date of mailing of such suspension notice. . . .
      “(f) If such person contacts the department to schedule a hearing, the department shall assign a date, time and place for the hearing, which date shall be prior to the effective date of the suspension. . . . The hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for manslaughter in the second degree with a motor vehicle or for assault in the second degree with a motor vehicle or for operating a motor vehicle while under the influence of intoxicating liquor or drug or both or while his ability to operate such motor vehicle was impaired by the consumption of intoxicating liquor; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis . . . and (4) was such person operating the motor vehicle. . . .
      “(g) If, after such hearing, the commissioner finds on any one of the said issues in the negative, the commissioner shall reinstate such license or operating privilege. If, after such hearing, the commissioner does not find on any one of the said issues in the negative . . . the commissioner shall affirm the suspension contained in the suspension notice for the appropriate period specified in subsection (h) of this section. . . .
      “(h) The commissioner shall suspend the operator’s license ... of a person . . . against whom, after a hearing, the commissioner held pursuant to subsection (g) of this section, as of the effective date contained in the suspension notice or the date the commissioner renders his decision, whichever is later, for a period of . . . (3) two years if such person has two or more times previously had his operator’s license . . . suspended under this section. . . .”

       General Statutes § 14-242 (a) provides in pertinent part: “No person shall turn a vehicle at an intersection . . . without giving an appropriate signal . . . .”

       It was later determined, however, that the plaintiff did have a valid operator’s license.

       Practice Book § 4013 (a) (1) as it applied to the filing of the appellant’s preliminary statement of the issues provides in pertinent part: “If any appellee wishes to (A) present for review alternate grounds upon which the judgment may be affirmed . . . that appellee shall file a preliminary statement of issues within fourteen days from the filing of the appellant’s preliminary statement of the issues.
      “Whenever the failure to identify an issue in a preliminary statement of issues prejudices an opposing party, the court may refuse to consider such issue.” Effective September 3, 1996, § 4013 provides that the appellee shall file a preliminary statement of the issues within twenty days from the filing of the appellant’s preliminary statement of the issues.


author: LAVERY, J.

text:
    ROBERT L. PATRON ET AL. v. SIMON KONOVER ET AL.
    (15057)
    O’Connell, Lavery and Hennessy, Js.
    Argued September 20
    officially released December 3, 1996

      Richard C. Robinson, with whom was Wesley W. Horton, for the appellants-appellees (defendants).

      Richard P. Weinstein, with whom were Nathan Schatz and, on the brief, Peter B. Rustin, for the appel-lees (plaintiffs).
   LAVERY, J.

The controlling issue in this appeal is whether the trial court, on remand from this court, exceeded the specific directions of our mandate. We agree with the defendants that the trial court exceeded our mandate and we reverse that court’s judgment in part.

The plaintiffs brought suit to recover for the defendants’ alleged breach of a contract concerning the defendants’ purchase of the plaintiffs’ interests in real properties and business entities. On December 30,1992, the trial court, O’Neill, J., rendered judgment for the plaintiffs in the amount of $2,874,334.27 plus costs. On April 5,1993, that court granted the plaintiffs’ motion for a supplemental attachment of certain of the defendants’ real and personal property. On appeal, this court reversed the trial court’s judgment in part and remanded the case for further proceedings to recompute the award of damages after eliminating the award of prejudgment interest for the seven day delay in closing, eliminating the Andrews Annex project credit of $182,963.67 and related interest, and eliminating prejudgment interest for the time prior to the plaintiffs’ sending the defendants notice of default pursuant to the default provisions of the termination contract. Patron v. Konover, 35 Conn. App. 504, 646 A.2d 901, cert. denied, 231 Conn. 929, 648 A.2d 79 (1994). Following the remand from this court, the plaintiffs filed a motion in the trial court for attorney’s fees incurred in pursuing the supplemental attachment and in defending the appeal.

On remand, the trial court, Blue, J., issued three separate memoranda of decision trying to untangle the complicated requests in this case. On March 17, 1995, the court determined that notice of the default under the parties’ contract was sent in a letter on May 9, 1991, and not in a November 30,1990 letter. The court denied the plaintiffs’ motion for costs and their request for appellate counsel fees, and entered a supplemental award of attorney’s fees of $3525 for the plaintiffs’ pursuit of the supplemental attachment. On April 24, 1995, the court concluded that for purposes of determining the “amount recovered” under the offer of judgment statute, General Statutes § 52-192a (b), the interest under General Statutes § 37-3a accruing after the initial judgment and the supplemental award of attorney’s fees were to be included.

On June 27, 1995, the trial court issued a memorandum concerning a $1,350,000 payment made on April 23, 1993, by the defendants to the plaintiffs in partial satisfaction of the judgment. The court concluded that that payment was part of the amount recovered for purposes of § 52-192a (b). The court concluded that the 1993 payment should be initially applied to interest, costs, and attorney’s fees incurred or accrued at the time of payment. The interest accrued from May 9,1991, through April 23, 1993, was to be calculated, as well as costs and attorney’s fees incurred through that date, including the $3525 supplemental attorney’s fees award. The court concluded that after deductions for interest, costs, and attorney’s fees incurred or accrued through April 23, 1993, the balance of the payment of that date was to be applied to principal. Prejudgment interest under § 37-3a would then be calculated on the new principal balance from April 23, 1993, until the date of the judgment rendered by Judge Blue. Offer of judgment interest, pursuant to § 52-192a (b), would be awarded if the amount recovered, including the principal amount—adjusted pursuant to the appellate remand— prejudgment interest on that amount from May 9,1991, until April 23, 1993, attorney’s fees, and prejudgment interest on the remaining principal due after the April 23,1993 payment was equal to or greater than the offer of judgment. The parties were ordered to submit new calculations within one week of that memorandum of decision, and, if they could not agree, another hearing would be scheduled.

On July 19, 1995, the court rendered judgment in favor of the plaintiffs in the amount of $3,087,536.96 including interest pursuant to § 52-192a. The defendants now appeal from that judgment, and the plaintiffs subsequently filed a cross appeal.

The defendants’ appeal concerns five issues: (1) whether the court on remand exceeded its authority by awarding damages for the detention of money after the termination date established by the original trial court; (2) whether the court on remand had jurisdiction to award supplemental attorney’s fees for the supplemental attachment proceedings; (3) whether the court improperly refused to permit an amendment to their answer to include the $1,350,000 payment; and (4) whether the court’s treatment of that payment was proper. The plaintiffs raised one issue in their cross appeal: whether the trial court improperly took into consideration the $1,350,000 unconditional partial satisfaction of judgment in determining interest under § 37-3a. The plaintiffs withdrew their cross appeal at oral argument and thus we will not consider it.

I

The defendants first claim that the court exceeded its authority on remand by awarding damages for the detention of money after the termination date established by the original trial court. The fundamental issue that must be resolved in this case is whether the rescript, which was originally issued by this court in Patron v. Konover, supra, 35 Conn. App. 520, was a modification of the original decision or a new judgment. The defendants contend that on remand the trial court was given the limited command of determining the proper commencement date in order to recompute the § 37-3a damages. The plaintiffs argue, however, that the rescript allowed the court to award new and additional damages, as if there were to be a new trial on this issue.

The plaintiffs had made an offer of judgment pursuant to § 52-192a in the amount of $1,881,041.15. The judgment by Judge O’Neill in the amount of $2,874,334.20, included $469,000 in § 52-192a interest. The defendants claim that Judge Blue incorrectly set a new terminus date of July 19, 1995, which is the date on which Judge Blue rendered judgment on the record. The defendants claim that the original judgment date set by Judge O’Neill, December 30, 1992, is the terminus date and that the remand did not give the trial court authority to change it to July 30,1995, which resulted in additional § 37-3a interest and, as a result thereof, additional § 52-192a interest.

We conclude that the trial court exceeded its jurisdiction in awarding damages for the detention of money after the termination date established by the original trial court. “ ‘In carrying out the direction of a mandate [of the Supreme Court], the Superior Court is limited to the specific direction of the mandate interpreted in the light of the opinion.’ ” Gary Excavating Co. v. North Haven, 163 Conn. 428, 430, 311 A.2d 90 (1972). Furthermore, “[t]he trial court cannot adjudicate rights and duties not within the scope of the remand. ... It is the duty of the trial court on remand to comply strictly with the mandate of the appellate court according to its true intent and meaning. No judgment other than that directed or permitted by the reviewing court may be rendered, even though it may be one that the appellate court might have directed. The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein. ...” (Citations omitted; internal quotation marks omitted.) West Haven Sound Development Corp. v. West Haven, 207 Conn. 308, 312, 541 A.2d 858 (1988).

This court’s rescript in Patron v. Konover, supra, 35 Conn. App. 520, provides: “The judgment is reversed in part and the case is remanded for further proceedings to recompute the award of damages after eliminating the award of prejudgment interest for the seven day delay in closing, eliminating the Andrews Annex project credit of $182,963.67 and related interest, and eliminating all prejudgment interest prior to the plaintiffs’ sending the defendants notice of default pursuant to the default provisions of their termination contract.” Nowhere in this order does this court permit or direct the trial court to conduct a new trial on the issue of additional damages. The first appeal was limited in terms of the issues raised and the relief requested. The defendants did not challenge Judge O’Neill’s conclusions on cash adjustments ($1,266,271.87), on a Coventry project ($29,745.18), on major obligations other than the Andrews Annex ($236,770.48) and on attorney’s fees ($91,682.36). Furthermore, the defendants’ challenge to the award of § 37-3a interest concerned only the commencement date. See id., 517-18.

This court did authorize the trial court on remand to find the proper commencement date of the interest, as mentioned in a footnote to the rescript, which stated: “Although the defendants concede that the May 9, 1991 letter was a notice of default, it is for the trial court to determine whether that or some earlier document constitutes the requisite notice.” Id., 520 n.13. This court’s authorization to set a new commencement date, however, did not direct the trial court to find a new terminus date as well. The order to set a new commencement date, coupled with the phrase “recompute the award of damages” in the rescript, orders a recalculation and not a new trial on the issue of § 37-3a damages.

In Mazzotta v. Bornstein, 105 Conn. 242, 244, 135 A. 38 (1926), our Supreme Court clearly established that when there is a rescript that modifies the judgment, postjudgment interest is to run from the date of the original judgment. It should be as if the correct judgment had been issued by the original trial court, with the interest running forward from that date.

Our Supreme Court in Butler v. Barnes, 61 Conn. 399, 402, 24 A. 328 (1892), concluded that even when a rescript orders a new trial on the issue of damages, a retrial on any other issue is prohibited. A trial court is not permitted to retry an issue even when the rescript does not explicitly prohibit it. Therefore, even though this court did not prohibit retrying the issue of damages in the rescript, the trial court was not authorized to set a new terminus date and to award the plaintiffs further damages.

The plaintiffs, however, rely on Lutynski v. B. B. & J. Trucking, Inc., 31 Conn. App. 806, 628 A.2d 1 (1993), aff'd, 229 Conn. 525, 642 A.2d 7 (1994), for the proposition that if this court wanted prejudgment interest to end with the date of the original judgment, it would have specifically said so in the rescript. Lutynski dealt with the award of § 52-192a damages and does not speak to the issue in the present case, the authorization to award new and additional § 37-3a damages. Furthermore, both the Lutynski rescript and the remand in the present case, using language appropriate to each, directed the trial court to correct a judgment that had been computed incorrectly.

In sum, this court did not specifically authorize a new trial on the issue of § 37-3a additional damages. The trial court was merely authorized to determine the proper commencement date, and then to calculate the appropriate amount of damages. In our previous rescript, the trial court was not given the jurisdiction to set a new terminus date, and thereby to award new and additional damages to the plaintiffs.

II

The defendants’ second claim is that the trial court exceeded its authority when it awarded the plaintiffs attorney’s fees for the supplemental attachment proceedings that followed the original judgment. Judge Blue found that the plaintiffs were successful in pursuing a supplemental attachment, which had been ordered by Judge O’Neill on April 5, 1993. In a memorandum of decision, Judge Blue found that a motion for attorney’s fees is not a motion to modify a judgment, nor is it subject to the four month rule of General Statutes § 52-212 (a), and he found that the timing of the motion created no unfair surprise or prejudice to the defendants. Judge Blue also found that the contract as amended provides for reasonable attorney’s fees for the nondefaulting party, that the plaintiffs were the nondefaulting party and that, based on the evidence, $3525 was a reasonable amount. We agree with the trial court, the findings and conclusions of which are consistent with our Supreme Court’s recent holding in Oakley v. Commission on Human Rights & Opportunities, 237 Conn. 28, 675 A.2d 851 (1996). Because that award was made in connection with postjudgment proceedings that took place after the motion for § 52-192a (b) interest, it cannot be considered part of the amount recovered for purposes of that statute.

This court’s decision concerning the defendants’ first two claims is dispositive as to the remainder of the issues raised on appeal.

Having determined that the commencement date for prejudgment interest was May 9, 1991, the trial court must calculate the amount recovered for purposes of § 52-192a (b) as follows: the adjusted principal amount plus attorney’s fees, not including the $3525 supplemental award, plus prejudgment interest pursuant to § 37-3a from May 9, 1991, until December 30, 1992, the date of Judge O’Neill’s judgment.

The judgment is reversed in part and the case is remanded for a recalculation of damages consistent with this opinion.

In this opinion the other judges concurred.

       General Statutes § 52-192a (b) provides: “After trial the court, shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant, failed to accept. If the court, ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment’, the court shall add to the amount so recovered twelve per cent annual interest on said amount, computed from the date such offer was filed in actions commenced before October 1,1981. In those actions commenced on or after October 1,1981, the interest shall be computed from the date the complaint in the civil action was filed with the court if the ‘offer of judgment’ was filed not later than eighteen months from the filing of such complaint. If such offer was filed later than eighteen months from the date of filing of the complaint, the interest shall be computed from the date the ‘offer of judgment’ was filed. The court may-award reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly. This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney’s fees in accordance with the provisions of any written contract between the parties to the action.”

       General Statutes § 37-3a provides: “Rate recoverable as damages. Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rato of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable. Judgment may be given for the recovery of taxes assessed and paid upon the loan, and the insurance upon the estate mortgaged to secure the loan, whenever the borrower has agreed in writing to pay such taxes or insurance or both. Whenever the maker of any contract is a resident of another state or the mortgage security is located in another state, any obligee or holder of such contract, residing in this state, may lawfully recover any agreed rate of interest or damages on such contract until it is fully performed, not exceeding the legal rate of interest in the state where such contract purports to have been made or such mortgage security is located.”

       The plaintiffs also claimed that the offer of judgment was invalid. Because that claim was not raised in the prior appeal to this court, it is not properly before us.


author: O’CONNELL, J.

text:
    JEFFREY A. WIGHT ET AL. v. TOWN OF SOUTHINGTON ET AL.
    (14931)
    O’Connell, Spear and Hennessy, Js.
    Argued September 25
    officially released December 3, 1996

      Kevin J. Hecht, for the appellants (plaintiffs).

      Michael Kurs, with whom, on the brief, was Alan I. Scheer, for the appellees (defendants).
   O’CONNELL, J.

In this civil rights action brought pursuant to 42 U.S.C. § 1983, the plaintiffs appeal from the trial court’s granting of summary judgment in favor of the defendants. The defendants are the town of Southington, the town planning and zoning commission (commission) and the members of that commission against whom the plaintiffs claim punitive damages in their individual capacities. The dispositive issue is whether the trial court properly determined that the plaintiffs did not have a constitutionally protected interest in the approval of their subdivision application. We affirm the judgment of the trial court.

The plaintiffs were the owners of undeveloped land on Rahlene Drive in Southington. In September, 1991, they applied for a permit to subdivide the land into seven building lots. Following a hearing on September 17,1991, the commission unanimously voted to approve the application. Notice of the approval was not immediately sent to the plaintiffs.

Because a commissioner was concerned that a proposed cul-de-sac was larger than permitted within the applicable zone, the commission, while convened at a regular meeting on October 1,1991, voted to reconsider the plaintiffs’ application. The reconsideration was tabled until October 15, 1991. Notice of the September 17, 1991 approval was mailed on October 1, 1991, unaffected by the decision to reconsider. The next day, the commission sent the plaintiffs a certified letter notifying them of the commission’s decision to reconsider the subdivision application.

On October 15, 1991, the commission reconvened with the plaintiffs present. The focus of the discussion was the previously mentioned cul-de-sac. The commission voted to table the plaintiffs’ application until November 7, 1991. On October 24, 1991, the plaintiffs appealed the commission’s decision to reconsider to the Superior Court, alleging that it was illegal and arbitrary.

On November 7, 1991, the commission again expressed concern about the proposed cul-de-sac and denied the plaintiffs’ application by a four to three vote. Following the November 7, 1991 denial of the application, the plaintiffs filed a second appeal claiming that the denial was illegal and arbitrary. The trial court sustained the first appeal, ruling that the commission’s reconsideration was improper, and dismissed the second appeal as moot.

In the present action, the plaintiffs claim, pursuant to 42 U.S.C. § 1983, that the commission’s actions deprived them of their substantive and procedural due process rights guaranteed by the United States constitution. The commission contends that the plaintiffs’ constitutional claims must fail because the plaintiffs were not clearly entitled to an approval of their subdivision application. Additionally, the commission argues that it may reconsider its decisions and reverse itself before the expiration of the appeal period without impheating the plaintiffs’ constitutional rights.

We must first address whether the trial court properly concluded that the subsequent denial of the application did not violate the plaintiffs’ constitutional rights. When a claim is made that the denial of a zoning application has deprived an applicant of a federal constitutional right, the trial court must first determine whether the party has a clearly established right to the zoning approval sought. Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 321-22, 627 A.2d 909 (1993). “The clear entitlement test asks whether there is a certainty or a very strong likelihood that the application in question would have been granted, but for the wrongful conduct of the local officials. ... A very strong likelihood means not simply a high probability of approval, but rather a virtual assurance of approval because any discretion is narrowly circumscribed. . . . Application of the [clear entitlement] test must focus primarily on the degree of discretion enjoyed by the issuing authority, not on the estimated probability that the authority will act favorably in a particular case.” (Citations omitted; internal quotation marks omitted.) Id., 322-23.

In Kelley Property Development, Inc., the local planning and zoning commission was asked to consider a subdivision application. Our Supreme Court held that the applicants’ subdivision application was subject to the local land use regulations and also to the commissioner’s discretion and thus did not clearly entitle the applicant to approval. Id., 323.

In the present case, the trial court properly concluded that Southington’s zoning regulations authorized the commission to make discretionary decisions in evaluating the length of proposed cul-de-sacs. It is firmly established that wide and liberal discretion is vested in local zoning authorities when they have acted within their prescribed legislative powers. Burnham v. Planning & Zoning Commission, 189 Conn. 261, 266, 455 A.2d 339 (1983). Because the commission had discretion to approve or deny the plaintiffs’ subdivision application, it is readily apparent that the plaintiffs have not satisfied the clear entitlement test.

The next question is whether the reconsideration of the plaintiffs’ application affected the trial court’s decision that the plaintiffs’ claim did not meet the clear entitlement test. In Cicala v. Administrator, Unemployment Compensation Act, 161 Conn. 362, 369, 288 A.2d 66 (1971), on which the trial court relied in the present case, the Supreme Court answered the question “whether an administrative officer is authorized, between the time his decision is rendered and the time it becomes final, to open that decision and reverse it.” The Supreme Court recognized the “need for an opportunity for correction of errors, change of mind, or obtaining more adequate factual grounds for a decision . . . .” (Internal quotation marks omitted.) Id., 369-70. In Cicala, the unemployment compensation administrator issued a decision and subsequently opened and reversed it. The Supreme Court concluded that no vested rights intervened because the decision had not become final. Id., 370.

This court recently held that decisions of local zoning authorities do not become final until notice of the decision has been published. Sharp v. Zoning Board of Appeals, 43 Conn. App. 512, 526, 684 A.2d 713 (1996). Because there was no publication of the commission’s decision in this case, it was not final. Accordingly, the commission’s reconsideration was lawful and did not affect the trial court’s decision concerning the clear entitlement test.

The plaintiffs also argue that the defendants were estopped from claiming that the commission’s rescission and reconsideration was legal because of rulings to the contrary made in the zoning appeal before another judge. This is not, however, a correct application of the law.

“In order for collateral estoppel to bar the relitigation of an issue in a later proceeding, the issue concerning which relitigation is sought to be estopped must be identical to the issue decided in the prior proceeding. To establish whether collateral estoppel applies, the court must determine what facts were necessarily determined in the first trial, and must then assess whether the [party] is attempting to relitigate those facts in the second proceeding.” (Internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 297, 596 A.2d 414 (1991). The issues involved in a zoning appeal are separate and distinct from those involved in a civil rights action under the federal statute. See Natale v. Ridgefield, 927 F.2d 101 (2d Cir. 1991). Because we are not considering issues identical to the zoning appeal, but instead are considering only the issue of clear entitlement, we conclude that the doctrine of collateral estoppel does not apply.

In view of the foregoing analysis, we do not reach the plaintiffs’ other claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs claim that the trial court (1) improperly decided the issue of the propriety of the commission’s reconsideration because this issue had been decided in the related zoning appeals and, thus, collateral estoppel applies, and (2) improperly made findings concerning the following material issues of fact: (a) the applicability of the zoning regulations regarding culde-sacs to the plaintiffs’ application, (b) whether the plaintiffs’ subdivision application complied with applicable regulations, and (c) whether the basis for reconsideration was proper.

       The plaintiffs’ original complaint alleged a violation of the Connecticut constitution. The trial court found that the appellants could not seek redress under the Connecticut constitution and the appellants have not challenged this ruling on appeal.

       We have reviewed the record and find no indication that the decision was published.


text:
    CONSTANCE DURKIN v. RAYMOND F. DURKIN
    (15300)
    O’Connell, Lavery and Schaller, Js.

      Submitted on briefs September 30
    officially released December 3, 1996

      Richard G. Kent filed a brief for the appellant (defendant).

      Diane M. Andersen and Susan Wakefield filed a brief for the appellee (plaintiff).
   O’CONNELL, J.

In this appeal from the judgment of dissolution of his marriage, the defendant claims that the trial court improperly (1) found him at fault for the breakdown of the marriage, (2) ordered him to pay periodic alimony for eight years and (3) awarded the plaintiff an interest in his retirement benefits.

While the appeal was pending, the trial court issued a postjudgment order awarding the plaintiff counsel fees to defend the appeal. The defendant amended his appeal to add claims that the trial court improperly (4) failed to hold a meaningful hearing on the plaintiffs motion for appellate counsel fees and (5) deprived him of his constitutional right to cross-examine the plaintiff.

We affirm the trial court’s judgment on both the original appeal and the supplemental appeal.

I

The record discloses that the plaintiff and the defendant were married on October 2, 1982, and that there were no children of the marriage. The defendant’s first two claims, regarding the breakdown of the marriage and the order to pay periodic alimony, clearly implicate the trial court’s fact-finding and discretionary functions. On appeal we do not retry the facts. Muller v. Muller, 43 Conn. App. 327, 682 A.2d 1089 (1996).

In domestic relations cases, our review of the trial court’s exercise of discretion is limited to whether it correctly applied the law and could reasonably have concluded as it did. Palazzo v. Palazzo, 9 Conn. App. 486, 488, 519 A.2d 1230 (1987). Trial courts have a distinct advantage over an appellate court in domestic relations cases where all of the surrounding circumstances and the appearance and attitude of the parties are so significant. Figlar v. Figlar, 174 Conn. 151, 153, 384 A.2d 1 (1978). Great weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence. Rummel v. Rummel, 33 Conn. App. 214, 221, 635 A.2d 295 (1993).

Our review of the record, transcript and briefs reveals that the trial court properly considered the statutory criteria, the evidence and the financial affidavits of the parties. Accordingly, we conclude that the trial court did not abuse its discretion by finding the defendant at fault for the breakdown of the marriage and ordering him to pay periodic alimony.

In his third claim, the defendant argues that the trial court improperly awarded the plaintiff an interest in his retirement benefits. The defendant correctly points out that expectations of possible future interests are not property and may not be divided. Krause v. Krause, 174 Conn. 361, 365, 387 A.2d 548 (1978). The defendant concedes that the distribution of vested pension benefits does not violate the limitation on division of expectancies. Krafick v. Krafick, 234 Conn. 783, 793-98, 663 A.2d 365 (1995). He argues, however, that there was no evidence that his pension was vested. We do not reverse factual findings of a trial court unless they are clearly erroneous. Cellu Tissue Corp. v. Blake Equipment Co., 41 Conn. App. 413, 420, 676 A.2d 405 (1996). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Id. Because our examination of the record reveals that there was evidence before the trial court that the defendant’s pension was vested, we will not reverse the trial court’s finding that the pension was vested.

II

The defendant next complains that the trial court improperly failed to conduct a meaningful hearing on the plaintiffs motion for counsel fees to defend the appeal. The plaintiff was unable to be present at the hearing on the motion because, as part of her studies at the University of Connecticut, she was attending a university in Germany for a semester. The trial court found that she lacked funds to return to the United States for the hearing.

The plaintiff did not file a new financial affidavit but relied on the affidavit she had submitted at the time of trial. Her mother, who held the plaintiffs power of attorney, testified that she was familiar with her daughter’s finances and was depositing her alimony checks and paying her bills. She also testified that the plaintiffs financial position had not changed since the date of the affidavit used at trial. The trial court concluded that under the circumstances, the testimony of the plaintiffs mother and examination of the plaintiffs original financial affidavit were reasonable substitutes for the plaintiffs presence and anew affidavit. The defendant argues that the plaintiffs mother’s testimony did not furnish a sufficient basis for the trial court’s order.

It is axiomatic that parties to a marital action should not be deprived of their appellate rights because of lack of funds. Febbroriello v. Febbroriello, 21 Conn. App. 200, 204-205, 572 A.2d 1032 (1990). Whether to award counsel fees in a dissolution action is within the discretion of the trial court. Tessitore v. Tessilore, 31 Conn. App. 40, 44, 623 A.2d 496 (1993). There must be an adequate evidentiary basis, however, on which the trial court may exercise its discretion. Castro v. Castro, 31 Conn. App. 761, 769, 627 A.2d 452 (1993).

The defendant relies on Castro v. Castro, supra, 31 Conn. App. 770-71, and Bartley v. Bartley, 27 Conn. App. 195, 197, 604 A.2d 1343 (1992), for the principle that “[i]t is a fundamental tenet of due process oflaw as guaranteed by the fourteenth amendment to the United States constitution and article first, § 10, of the Connecticut constitution that persons whose property rights will be affected by a court’s decision are entitled to be heard at a meaningful time and in a meaningful manner. ” (Internal quotation marks omitted.) Bartley v. Bartley, supra, 197-98. Those cases are distinguishable from the present case because in both Castro and Bartley the court modified or awarded counsel fees without any hearing whatsoever. Here, the trial court conducted a hearing and the gravamen of the defendant’s claim is that the evidence the trial court received at that hearing was insufficient to support an award of counsel fees.

The defendant overlooks the fact that less than six months earlier, during the trial, the defendant had an opportunity to cross-examine the plaintiff concerning the financial affidavit that was being considered by the court at the supplemental hearing. “If an award of attorney’s fees was sought in the underlying proceeding from which the appeal is being taken, the ruling on that earlier application may substantially control the result on the later application for attorney’s fees on appeal.” A. Rutkin, E. Effron & K. Hogan, 8 Connecticut Practice Series: Family Law and Practice (1991) § 44.12, p. 285.

We have previously held that where there has been a hearing on financial issues at the time of trial, the trial court may be deemed to have sufficient information to award counsel fees to defend an appeal. Tessitore v. Tessitore, supra, 31 Conn. App. 44. In Tessitore, we did not ehminate the necessity of a hearing, however, we recognized that the trial court, apprised of the financial situation after a full trial on the merits, could properly consider the trial evidence while exercising its discretion to award counsel fees. Id. In the present case, the judge who had presided at the trial did not preside at the hearing on counsel fees. The second judge, however, had the full trial record available to him. We conclude that there was sufficient evidence to justify the award of counsel fees to defend the appeal.

The defendant’s final claim is that the hearing and subsequent order denied his constitutional right to cross-examine the plaintiff. We do not agree.

Cross-examination is a substantial right that should be liberally allowed. Pickman v. Pickman, 6 Conn. App. 271, 277-78, 505 A.2d 4 (1986). In order to be admissible, evidence from cross-examination, like all evidence, must be relevant. Skrzypiec v. Noonan, 228 Conn. 1, 21-22, 633 A.2d 716 (1993).

The defendant claims that he was entitled to cross-examine the plaintiff about why she was attending school in Germany instead of working. The trial court found that this line of questioning was not relevant to the issue of whether the plaintiff lacked funds to pay her counsel to represent her on appeal. In making its relevancy determination, the trial court had before it all of the plaintiffs financial information and a witness, the plaintiffs mother, who had personal knowledge of the lack of any changes in her economic position since the date of the plaintiffs last financial affidavit. Because the trial court has broad discretion in its relevancy determinations, we will not disturb the trial court’s ruling in the absence of an abuse of discretion. Id. The defendant has not demonstrated that such an abuse occurred here. Furthermore, the defendant had full opportunity to cross-examine the plaintiff about that affidavit at trial, as well as to cross-examine her about her decision to return to school.

“[W]e are authorized to reverse or modify the decision of the trial court only if we determine that the factual findings are clearly erroneous in view of the evidence ... in the whole record, or that its decision is otherwise erroneous in law.” (Internal quotation marks omitted.) Clement v. Clement, 34 Conn. App. 641, 650, 643 A.2d 874 (1994). In the present case, we conclude that the trial court did not abuse its discretion in its relevancy ruling and that the defendant was not denied his right of cross-examination.

The judgment is affirmed.

In this opinion the other judges concurred.

       The evidence showed that the plaintiffs father was paying for her education.


author: PER CURIAM.

text:
    HARTFORD FIRE DEPARTMENT v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES EX REL. DAVID PRIBYSON
    (15601)
    Foti, Heiman and Stoughton, Js.
    Argued November 5
    officially released December 3, 1996

      Karen K. Buffkin, assistant corporation counsel, for the appellant (plaintiff).

      Charles Krich, for the appellee (defendant).

      PatricaM. Strong, for the appellee (David Pribyson).
   PER CURIAM.

The parties concede, and we agree, that a finding of fact is necessary, i.e., a determination as to when the notice of final decision by the commission on human rights and opportunities was mailed. The resolution of that factual claim falls within the province of the trial court; we, as an appellate court, may not act as fact finders on claims not decided at the trial level. Connecticut National Bank v. Giacomi, 233 Conn. 304, 333, 659 A.2d 1166 (1995).

The judgment is reversed and the case is remanded for a determination of the timeliness of the appeal in light of Ann Howard’s Apricots Restaurant, Inc. v. Commission on Human Rights & Opportunities, 237 Conn. 209, 676 A.2d 844 (1996); in the event that the trial court determines that the administrative appeal is timely in light of Ann Howard's Apricots Restaurant, Inc., the court shall resolve the issues on the merits; in the event that the appeal is not timely, the matter should be dismissed for lack of subject matter jurisdiction.

       The Ann Howard’s Apricots Restaurant, Inc. opinion was released on May 28, 1996, subsequent to the judgment rendered herein.