author: HARPER, J.

text:
    ARMANDO SALGADO ET AL. v. COMMISSIONER OF TRANSPORTATION ET AL.
    (AC 28142)
    Bishop, Harper and West, Js.

      Argued January 2
    officially released March 25, 2008

      Ronald D. Williams, Jr., for the appellants (named defendant et al.).

      Ralph W. Johnson III, with whom, on the brief, were Stephen P. Fogerty, Brett M. Szczesny and John C. Pitblado, for the appellee (plaintiff Arrow Trucking Company, Inc.).
   Opinion

HARPER, J.

In this defective highway action, the defendants, two former commissioners of transportation, appeal from the judgment of the trial court denying their motion to dismiss the property damage and indemnification claims of the plaintiff Arrow Trucking Company, Inc. The defendants maintain that, given the notice requirements of the state defective highway statute, General Statutes § 13a-144, the court improperly concluded that the plaintiff had provided adequate notice of its claims. The defendants also maintain that, because the plaintiff failed to provide notice under this exclusive statutory remedy, its indemnification claim is barred by the doctrine of sovereign immunity. We agree with the defendants and reverse the judgment of the trial court.

The record reveals the following undisputed facts and procedural history. On the morning of January 17, 2003, Armando Salgado was operating a tractor trailer truck in the northbound lanes of Interstate 95 in Fair-field. An initial accident occurred in which the tractor trailer crashed into and partially over the concrete median barrier separating the northbound and southbound lanes. The trailer portion of the rig, which was registered to the plaintiff, came to rest in a northbound lane. Shortly thereafter, a second accident occurred in which a northbound sport utility vehicle crashed into the trailer. Salgado and the occupants of the sport utility vehicle suffered personal injuries. The plaintiffs trailer suffered property damage.

Salgado, represented by counsel, provided written notice of his personal injury claim to the commissioner of transportation within ninety days of the accidents, indicating the general nature of his personal injuries and the time and place of the accidents. This notice did not describe the extent of the property damage to the plaintiffs trailer, nor did it indicate that the plaintiff intended to file a claim against the state.

On February 7, 2005, Salgado and the plaintiff jointly filed a thirteen count complaint against the defendants. The fifth count of the complaint set forth the plaintiffs defective highway action, pursuant to § 13a-144. The ninth count set forth a common-law indemnification action by both Salgado and the plaintiff, seeking indemnification for their settlement with the occupants of the sport utility vehicle. The indemnification claim was based on a legal theory that the negligence of Salgado and the plaintiff, if any, was passive, while the state’s negligence was active.

The defendants moved to dismiss the plaintiffs claims, asserting that, pursuant to the doctrine of sovereign immunity, the court lacked subject matter jurisdiction over (1) the defective highway claim because the plaintiff had failed to comply with the statutory notice requirements of § 13a-144 and (2) the plaintiffs common-law indemnification claim because § 13a-144 provided the exclusive remedy for injuries resulting from a defective road or bridge.

On October 10, 2006, the court heard oral arguments on the defendants’ motion to dismiss and denied their motion in an oral ruling. The court concluded that, because Salgado and the plaintiff shared the same legal representative and because inferences could be drawn from Salgado’s notice that the plaintiffs trailer also had been damaged, there had therefore been adequate notice of the plaintiffs intent to file its claims. In denying the motion, the court did not specifically address the legal merits of the common-law indemnification claim. The defendants have appealed.

We begin by setting forth the applicable standard of review. “A motion to dismiss . . . properly attacks the jurisdiction of the corut, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests, inter alia, , whether, on the face of the record, the court is without jurisdiction. . . . [Appellate] review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. . . . Moreover, [t]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.” (Citation omitted; internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).

We also reiterate our well established principle that a defective highway action is an exception to the state’s common-law sovereign immunity from suit. Although the defendants are former state highway commissioners, “[a defective highway] action is, in effect, one against the state as a sovereign. ... It is the established law of our state that the state is immune from suit unless the state, by appropriate legislation, consents to be sued. . . . The legislature waived the state’s sovereign immunity from suit in certain prescribed instances by the enactment of § 13a-144. . . . [T]he state’s sovereign right not to be sued without its consent is not to be diminished by statute, unless a clear intention to that effect on the part of the legislature is disclosed, by the use of express terms or by force of a necessary implication. . . . There being no right of action against the sovereign state at common law, the plaintiff must prevail, if at all, under § 13a-144.” (Citations omitted; internal quotation marks omitted.) Baker v. Ives, 162 Conn. 295, 297-98, 294 A.2d 290 (1972).

I

The defendants claim that the plaintiff failed to provide adequate notice under § 13a-144, and, therefore, the court lacked subject matter jurisdiction over the plaintiffs defective highway action. In effect, the defendants assert that each injured party must provide its own written notice of its intent to file an injury claim within ninety days of the accident in order to comply with the statutory requirements of § 13a-144, and that the plaintiff, in failing to do so, was barred by the doctrine of sovereign immunity from suing the defendants. The plaintiff contends that the court, in concluding that the plaintiff had provided adequate notice, properly relied on inferences reasonably drawn from Salgado’s written notice and the observation that Salgado and the plaintiff shared joint representation. We reject the court’s conclusion as a matter of law and agree with the defendants that the plaintiff failed to provide the requisite notice of its intent to file a claim.

Our Supreme Court’s decision in Warkentin v. Burns, 223 Conn. 14, 610 A.2d 1287 (1992), controls. There, the court observed: “Section 13a-144 provides in relevant part that [n]o such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. The statute created a cause of action wholly unauthorized by the common law. . . . Thus, the statutorily required notice is a condition precedent to the cause of action. ... If this requirement is not met, no cause of action exists. . . . Moreover, [statutes in derogation of sovereignty should be strictly construed in favor of the state, so that its sovereignty may be upheld and not narrowed or destroyed ....

“The requirement as to notice was not devised as a means of placing difficulties in the path of an injured person. The purpose [of notice is] . . . to furnish the commissioner with such information as [will] enable him to make a timely investigation of the facts upon which a claim for damages [is] being made. . . . The notice requirement is not intended merely to alert the commissioner to the occurrence of an accident and resulting injury, but rather to permit the commissioner to gather information to protect himself in the event of a lawsuit. . . . Sufficiency of the notice is to be tested with reference to the purpose of the notice, i.e., that a claim is being made. . . .

“We conclude that injured parties, to meet the requirements of the statute, must either individually or through a representative, notify the commissioner that they have filed or intend to file a claim against the state for damages caused by a defective condition.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 17-18.

The Warkentin court further noted: “We do not decide that the notice must conform to any particular format. It must, however, reasonably construed, indicate (1) it is given by or on behalf of an injured party (2) who intends to claim damages.” Id., 19 n.6; see Murray v. Commissioner of Transportation, 31 Conn. App. 752, 757 n.2, 626 A.2d 1328 (1993); Greene v. Ives, 25 Conn. Sup. 356, 358-60, 204 A.2d 412 (1964). Therefore, in order to satisfy the § 13a-144 notice requirement, notifying the commissioner that an accident has occurred and that injuries have been sustained is necessary but insufficient. Each injured party must also place the commissioner on notice that it intends to claim damages, complying with the requirements of § 13a-144.

Our review of the record in this case reveals that the plaintiff failed to provide the commissioner with adequate notice of its claim. We disagree with the court’s conclusion that the defendants reasonably could have inferred the plaintiffs intent to file a claim on the basis of clues in Salgado’s notice and the fact that the plaintiff and Salgado shared legal representation.

The record reveals that Salgado’s written notice consisted of a letter to the commissioner, dated April 17, 2003, and an attachment. In the letter, Salgado manifested his intent to pursue a personal injury claim under §13a-144, describing the time and location of the accident, and listing his physical injuries. The letter, however, did not describe property damage to the plaintiffs trailer, and it failed to mention the plaintiffs name. The attachment, a report by the public information office of the state police, dated January 17, 2003, the date of the accident, briefly described the accidents and listed the medical conditions of the nine occupants of the sport utility vehicle involved in the second accident. The report indicated that the trailer was involved in both accidents and that Salgado was operating “Vehicle #1” when he “lost control on the icy roadway.” In the list of the three vehicles involved in the first accident, “Arrow Trucking Co.” appears in the registration information for “Vehicle #1.”

On the basis of the information in the report from the public information office, the defendants reasonably could have inferred that damage occurred to a trailer apparently registered to the plaintiff and that damage was caused to the trailer in each accident. The defendants could not have reasonably inferred, however, that the plaintiff intended to file a claim against them. As we have previously indicated, a report of damage alone is insufficient notice of a party’s claim under the defective highway statute. An injured party must also inform the commissioner of its intent to file a claim. “The notice requirement is not intended merely to alert the commissioner to the occurrence of an accident and resulting injury, but rather to permit the commissioner to gather information to protect himself in the event of a lawsuit.” (Internal quotation marks omitted.) Lussier v. Dept. of Transportation, 228 Conn. 343, 354, 636 A.2d 808 (1994). Here, Salgado’s notice may have alerted the defendants to the probability that the plaintiffs trailer was damaged, but it did not place them on notice that the plaintiff also intended to pursue a defective highway action.

To reason otherwise would lead to the conclusion that whenever an injured party, in filing notice of a claim under § 13a-144, refers to other injured parties, the commissioner of transportation would be under notice that all such parties intended to file claims against the state. Such a result does not comport with the public policy goals of the notice statute, which include providing the state with an early start in assembling evidence for its defense against meritless claims, as well as assisting it in settling claims promptly in order to avoid the expenses of litigation. See Sanzone v. Board of Police Commissioners, 219 Conn. 179, 198, 592 A.2d 912 (1991). Such reasoning also would contradict our well established tenet that the statute, as an exception to the doctrine of sovereign immunity, must be narrowly construed. Bresnan v. Frankel, 224 Conn. 23, 26 n.3, 615 A.2d 1040 (1992); White v. Burns, 213 Conn. 307, 312-13, 567 A.2d 1195 (1990); Krozser v. New Haven, 212 Conn. 415, 421, 562 A.2d 1080 (1989), cert. denied, 493 U.S. 1036, 110 S. Ct. 757, 107 L. Ed. 2d 774 (1990).

Under these same principles, the fact that the plaintiff and Salgado shared the same legal counsel is also unavailing. First, we note that Saigado’s notice failed to indicate, even by inference, that he shared legal counsel with the plaintiff. Second, even if there had been an indication of common representation, this would not have excused the plaintiff from also providing notice of its own intent to file a claim. In other words, even when two or more parties share joint representation, the commissioner must at least receive written notice of which parties are claiming damages. In the present case, the defendants did not receive notice of the plaintiffs intent to do so.

In sum, the plaintiff failed to provide adequate notice of its claim under § 13a-144 as a matter of law. The court therefore lacked subject matter jurisdiction to consider the plaintiffs defective highway claim. Because the court improperly denied the defendants’ motion to dismiss this claim, we reverse the judgment of the court in this regard.

II

In light of our conclusion that the court lacked subject matter jurisdiction over the plaintiffs defective highway action, we also reverse the court’s denial of the defendants’ motion to dismiss the plaintiffs indemnification claim. The defective highway statute is the sole and exclusive statutory exception to the doctrine of sovereign immunity. Baker v. Ives, supra, 162 Conn. 297-98. The plaintiff, having failed to meet the statutory notice requirements of § 13a-144, is barred from bringing a separate indemnity action on the basis of negligence. In short, the plaintiffs indemnification claim is precluded from adjudication as a matter of law.

The judgment is reversed and the case is remanded with direction to grant the motion to dismiss and to render judgment dismissing counts five and nine only insofar as they raise claims by the plaintiff.

In this opinion the other judges concurred.

       The plaintiffs, Armando Salgado and Arrow Trucking Company, Inc., filed a thirteen count complaint against Stephen Korta II and James F. Byrnes, Jr., both former commissioners of transportation, as well as against M. DeMatteo Construction Company, the Brunalli Construction Company, the Phi chapter of Delta Kappa Epsilon and the national fraternity, Delta Kappa Epsilon. The commissioners and Arrow Tracking Company, Inc., are the only parties to this appeal and, for convenience, are referred to as the defendants and the plaintiff, respectively.

       General Statutes § 13a-144 provides in relevant part: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair . . . may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court. No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. . . .”

       Three of the occupants of the sport utility vehicle were killed instantly in the crash and a fourth subsequently died in Bridgeport Hospital.

       The legal representatives of the nine occupants of the sport utility vehicle filed accident claims against Salgado and the plaintiff, which were settled prior to the commencement of this case.

       The plaintiff argues that we should decline to review the defendants’ claims on appeal because 1he defendants, in presenting a record for review, did not provide this court with either a memorandum of decision or a signed transcript. See Practice Book §§ 60-5 and 64-1. Priorto oral argument, however, we received a signed transcript containing the court’s oral decision. We have reviewed the transcript and conclude that it is adequate for our review.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. TERRELL K. KIMBLE
    (AC 26992)
    Bishop, Harper and Peters, Js.

      Argued October 15, 2007
    officially released March 25, 2008

      James B. Streeto, assistant public defender, for the appellant (defendant).

      Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, former state’s attorney, and Donna Mambrino, senior assistant state’s attorney, for the appellee (state).
   Opinion

HARPER, J.

The defendant, Terrell K. Kimble, appeals from the judgment of conviction following his conditional plea of nolo contendere to criminal possession of a firearm in violation of General Statutes § 53a-217 and interfering with an officer in violation of General Statutes § 53a-167a. The defendant also pleaded guilty under the Alford doctrine to assault in the first degree in violation of General Statutes § 53a-59, robbery in the first degree in violation of General Statutes § 53a-134, and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134. The plea of nolo contendere to the criminal possession of a firearm charge followed the trial court’s denial of the defendant’s motion to suppress evidence, specifically, the gun that was integral to that charge. The defendant challenges the court’s denial of his motion to suppress on two grounds. First, the defendant claims that the court improperly concluded that he lacked standing to challenge, under the federal and state constitutions, the legality of an alleged warrantless search of an automobile in which he was a passenger. Second, the defendant claims that the court improperly rejected his claim that the gun, found by police in the automobile, was the fruit of police illegality, namely, an illegal investigative detention. We affirm the judgment of the trial court.

The defendant filed a written motion to suppress on April 22, 2005. At the suppression hearing, the state presented testimony from Leonard Grissette, a Hartford police officer who was on duty during the evening hours of March 10, 2004. Grissette testified to the following facts. At approximately 10 p.m., he received a transmission from the police department dispatcher directing him to investigate a report that two black males, in an automobile with New York marker plates, were selling drugs at a parking lot located at 7 Harold Street. Grissette did not know anything about the person or persons who reported this information to the police. When he arrived at the location specified, he obseived two black males sitting in a Chevrolet Impala, with New York marker plates, parked in the parking lot of a multifamily home. There were other cars parked in the area, and Grissette parked his marked police cruiser on the street in front of 7 Harold Street. Grissette did not observe the individuals doing anything in the vehicle. He did not observe anyone approach the vehicle or any conduct that was indicative of drug activity.

Grissette, dressed in a police uniform, approached the automobile “[j]ust to see what was going on.” He asked the driver to open his window and asked the occupants: “Do either one of you live here?” Both men replied that they did not. Grissette then asked the driver if he had any identification. The driver replied that he did not have any identification on him. Grissette then asked the driver for his name and date of birth. After hesitating, the driver provided a name and date of birth. Grissette radioed this information to a police operator who informed Grissette that the information did not yield any records. Grissette asked the driver if he was sure about the information, to which the driver provided a different date of birth. After Grissette radioed this information to the police operator, he was informed a second time that it did not yield any records.

Grissette testified that he then turned his attention to the defendant, who was sitting in the passenger seat of the automobile. He asked the defendant to provide his name and date of birth. The defendant did so without hesitation. After a second police officer arrived on the scene shortly thereafter, the defendant exited the automobile and began running from it. After a brief foot pursuit, Grissette restrained the defendant and put him in handcuffs. Subsequently, Grissette placed the defendant under arrest for the crimes of “criminal trespass . . . and interfering” and seated him in a police cruiser. Later, another officer at the scene likewise arrested the driver of the vehicle and seated him in a police cruiser. While both the defendant and the driver were seated in the cruisers at the scene, two police officers began to search their automobile. One of the officers, Michael Francis, drew Grissette’s attention to the passenger side of the automobile where a small handgun was lying on the floorboard “between the seat and the seatbelt housing,” near the automobile’s passenger door, which had been left open. Although Grissette had not observed the gun until this time, it was plainly visible; nothing had to be moved for Grissette to observe it. Later, Grissette learned that the driver had not provided his real name to him at the scene and that the automobile at issue was owned by an automobile rental company.

The state also presented testimony from Francis, who testified to the following relevant facts. At shortly after 10 p.m., after learning that a fellow officer was in pursuit of a subject, he arrived on the scene. He knew no other information about either Grissette’s activities or the defendant. Upon his arrival at the scene, he observed Grissette walking the defendant, in handcuffs, toward an automobile parked at the scene. Upon learning that both subjects had been arrested and detained, Francis assisted another officer at the scene, who had begun searching the driver’s side of the automobile. Francis approached the passenger side of the automobile where he observed that the passenger door was open and immediately observed a firearm that was between “the passenger front seat and the door open area on the floor of the vehicle.” His subsequent search of the vehicle did not yield any additional evidence.

For the purpose of establishing standing, the defendant testified at the suppression hearing that at the place and time in question, he was the owner of and in possession of the .25 caliber gun seized by the police. The defendant acknowledged that he did not have a permit for the gun. The defendant corroborated the testimony of the police officers as to the gun’s location inside the automobile at the time the police detected it, testifying that he had the gun on the floor between the door and the passenger’s seat, where he had been sitting.

The state argued that the seizure of the defendant was lawful because, on the basis of the facts presented, Grissette had a reasonable and articulable suspicion sufficient to justify an investigatory stop of the defendant and the driver. The state also asserted that the gun was discovered in plain view from a vantage point that the officers had a lawful right to occupy. The state challenged the defendant’s standing to contest the legality of any search of the automobile, arguing that the defendant did not have an ownership interest or expectation of privacy in the automobile. The state likewise asserted that the defendant had abandoned the gun and, thus, did not have any expectation of privacy with regard to the gun, when he fled from the automobile. The defendant argued that the seizure of the gun stemmed from police illegality in that the police lacked a reasonable and articulable suspicion to have conducted an investigatory stop and that Grissette had conducted an investigatory stop when he approached the automobile to talk with the defendant and the driver.

In an oral ruling, the court denied the defendant’s motion to suppress. The court reasoned that the defendant lacked standing to challenge the validity of the search of the rented automobile because he was merely a passenger in the automobile and lacked any possessory interest in it. The court went on to rule that, if standing existed, it would deny the motion on its merits. The court found that the anonymous tip was not corroborated by any evidence of drug activity. Nonetheless, the court was persuaded by its finding that the automobile was parked on private property, near a residence, and the defendant did not have a right to be at that place unless he had “some connection . . . with the premises.” The court deemed it relevant that the defendant had been charged at the scene with, inter alia, criminal trespass. The court concluded that, under these circumstances, Grissette lawfully had conducted “an identity check” of the driver and the defendant.

The court’s findings reflect its reliance on the largely unchallenged testimony of Grissette and Francis. The court accepted as true Grissette’s testimony that the defendant fled from the vehicle in the manner that Grissette described. The court also accepted as true Francis’ testimony that the gun was found in the automobile in the manner described, via the automobile’s open passenger door. On the basis of these findings, the court concluded that the police had detected the gun in “plain sight” upon approaching the automobile after the defendant was apprehended. Summarizing its ruling, the court stated: “[T]he motion is denied for no standing.

The investigative stop was reasonable given the fact that the vehicle with New York plates was parked on private property and the weapon that was seized was in plain view so that a search was not in reality conducted.”

“[0]ur standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [When] the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the court’s [ruling] . . . .” (Internal quotation marks omitted.) State v. Jones, 281 Conn. 613, 654, 916 A.2d 17, cert. denied, 552 U.S. 868, 128 S. Ct. 164, 169 L. Ed. 2d 112 (2007). “Because a trial court’s determination of the validity of a . . . search [or seizure] implicates a defendant’s constitutional rights . . . we engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence. . . . However, [w]e [will] give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Citation omitted; internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 43, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004).

I

First, the defendant claims that the court improperly concluded that he lacked standing, under the federal and state constitutions, to challenge the legality of the warrantless search of the automobile in which he was a passenger. We disagree.

The court resolved the standing issue adverse to the defendant, yet separately concluded that a search related to the discovery of the gun was not conducted because the gun was detected in plain view by the police. At the outset, we note that the defendant does not challenge the correctness of this plain view determination. “[0]nly an intrusion into an area in which an individual has a reasonable expectation of privacy, with the specific intent of discovering evidence of a crime, constitutes a search within the meaning of the fourth and fourteenth amendments. ... A search implies an examination of one’s premises or person with a view to the discovery of contraband or evidence of guilt to be used in prosecution of a criminal action. The term implies exploratory investigation or quest. . . . The term connotes hostility between the searcher and the person whose property or possessions are being searched. . . . The analysis which focuses on the intent, purpose and motivation of the intrusion vis-avis the criminal investigatory function of a policeman is reflected somewhat in [the definition of search] as any intrusion ... by an officer, under the color of authority, upon an individual’s . . . property . . . for the purpose of seizing . . . things.” (Citations omitted; internal quotation marks omitted.) State v. Tully, 166 Conn. 126, 131-32, 348 A.2d 603 (1974); State v. MacNeil, 28 Conn. App. 508, 517, 613 A.2d 296, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992). “Under the state constitution, all warrantless searches, whether or not the police have probable cause to believe that a crime was committed, are per se unreasonable, unless they fall within one of a few specifically established and well delineated exceptions to the warrant requirement.” State v. Joyce, 229 Conn. 10, 24-25, 639 A.2d 1007 (1994), on appeal after remand, 243 Conn. 282, 705 A.2d 181 (1997), cert. denied, 523 U.S. 1077, 118 S. Ct. 1523, 140 L. Ed. 2d 674 (1998).

Courts have questioned “ ‘whether it serves any useful analytical purpose to consider [the] principle [that fourth amendment rights are personal] a matter of standing, distinct from the merits of a defendant’s [fjourth [a]mendment claim’ . . . [and have concluded] that the ‘definition of [fourth amendment] rights is more properly placed within the purview of substantive [f]ourth [a]mendment law than within that of standing.’ ” (Citation omitted.) State v. Davis, 283 Conn. 280, 299, 929 A.2d 278 (2007), quoting Rakas v. Illinois, 439 U.S. 128, 138-40, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). Generally, to assert that a search was constitutionally impermissible, a defendant must demonstrate that he possessed a reasonable expectation of privacy in the area searched. A proper determination that an item has been detected by police in plain view, however, obviates the need for any further inquiry into whether a privacy interest has been invaded.

“As the United States Supreme Court stated in Illinois v. Andreas, 463 U.S. 765, 772, 103 S. Ct. 3319, 77 L. Ed. 2d 1003 (1983), [t]he plain view doctrine is grounded on the proposition that once police are lawfully in a position to observe an item first-hand, its owner’s privacy interest in that item is lost; the owner may retain the incidents of title and possession but not privacy. . . . [I]f contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no search within the meaning of the [f]ourth [a]mendment—or at least no search independent of the initial intrusion that gave the officers their vantage point. . . .

“Under the plain view doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.” (Citations omitted; internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 520-21, 903 A.2d 169 (2006). In light of the court’s unchallenged determination that the police detected the gun in plain view upon approach to the open passenger door of the automobile, we conclude that no search in connection with the seizure of the gun occurred in the present case. Thus, the defendant cannot succeed on this claim.

Even were we, as a matter of law, to conclude that the gun was seized incident to a search of the automobile, we would nonetheless conclude that the defendant lacked standing to challenge the legality of such police action. In determining whether a defendant has standing to challenge the legality of a search and seizure under both the fourth amendment to the United States constitution and article first, § 7, of the constitution of Connecticut, we employ the same analytical framework. State v. Davis, supra, 283 Conn. 287-324 (rejecting claim that state constitution embodies rule of standing for purposes of search and seizure different from that embodied in federal constitution). To meet this rule of standing, the defendant must demonstrate that he had a reasonable expectation of privacy in the area or subject of the search. See Rakas v. Illinois, supra, 439 U.S. 143; State v. Joyce, supra, 229 Corm. 20; State v. DeFusco, 224 Conn. 627, 633, 620 A.2d 746 (1993).

“The burden of proving the existence of a reasonable expectation of privacy rests on the defendant. ... In order for the defendant to demonstrate that he had a reasonable expectation of privacy in the [subject of the search]: (1) he must have manifested a subjective expectation of privacy with respect to the [subject of the search]; and (2) that expectation must be one that society would consider reasonable.” (Citations omitted; internal quotation marks omitted.) State v. Gonzalez, 278 Conn. 341, 349, 898 A.2d 149 (2006). “Absent such an expectation, the subsequent police action has no constitutional ramifications.” (Internal quotation marks omitted.) State v. Pink, 274 Conn. 241, 258, 875 A.2d 447 (2005).

In the present case, the defendant testified that he owned the gun that was seized by the police and that he left it in the automobile where the police found it. In concluding that the defendant lacked standing to challenge the legality of that search, the court appears to have relied almost exclusively on its finding that the defendant had no possessory interest in the rented automobile in which he was a passenger. The defendant argues that, because he “admitted ownership” of the gun seized, “he retained a legitimate expectation of privacy as a passenger in the automobile, albeit a diminished one, which was infringed upon by the warrantless search.”

In State v. Davis, supra, 283 Conn. 312-13, our Supreme Court stated: “The United States Supreme Court held unequivocally in [United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980)] that, under the fourth amendment, a defendant does not have automatic standing to challenge a search merely by virtue of having a possessory interest in the item seized. . . . Rather, defendants charged with crimes of possession may only claim the benefits of the exclusionary rule if their own [f]ourth [a]mendment rights have . . . been violated. ... In other words, a defendant may not invoke the fourth amendment to challenge the legality of a search unless he first can establish a legitimate expectation of privacy in the area searched.” (Citations omitted; emphasis added; internal quotation marks omitted.) Passengers in an automobile, neither claiming nor demonstrating a possessory interest in the automobile, generally are regarded as lacking a reasonable expectation of privacy in the automobile. See State v. Altrui, 188 Conn. 161, 178-79, 448 A.2d 837 (1982); State v. Thomas, 98 Conn. App. 542, 550-51, 909 A.2d 969 (2006), cert. denied, 281 Conn. 910, 916 A.2d 53 (2007); State v. Ortiz, 47 Conn. App. 333, 337-38, 705 A.2d 554 (1997), cert. denied, 244 Conn. 902, 710 A.2d 175 (1998); State v. Burns, 23 Conn. App. 602, 611-12, 583 A.2d 1296 (1990); State v. Manson, 13 Conn. App. 220, 223, 535 A.2d 829 (1988).

Although a passenger’s property interest in an item seized from an automobile may, in an appropriate case, bolster a claim that such passenger reasonably held an expectation of privacy in an area of an automobile, that is not the case before us. Here, it cannot reasonably be concluded from the facts found that the defendant manifested any subjective expectation of privacy in the area of the automobile where his gun was seized. The court found that the defendant fled the automobile and left the passenger door open behind him. The court also accepted as true Francis’ testimony that, when he approached the open passenger door, the defendant’s gun was left in plain view against the passenger seat in the automobile. The defendant’s claimed expectation of privacy is based on his ownership interest in the gun and nothing more. Compare State v. Cooper, 9 Conn. App. 15, 20-21, 514 A.2d 758 (1986) (concluding passenger had standing to challenge search of his coat locked in trunk of automobile searched by police). Thus, the court’s conclusion that the defendant lacked standing to challenge the search of the automobile was supported by the facts found and was correct in law.

II

Next, the defendant claims that the court improperly denied his motion to suppress after concluding that the seizure of the gun was not the fruit of an illegal investigative detention. We disagree.

The defendant argues that an investigative detention occurred and that he and the driver were thus seized “at the moment Officer Grissette approached” the automobile. In the alternative, the defendant argues that an investigative stop “had clearly started when, as Officer Grissette testified, the driver hesitated with his name and date of birth, and no information regarding that name and date of birth existed.” As he did at trial, the defendant argues that police did not possess a reasonable and articulable suspicion that he was engaged in criminal activity at either of these times, that the seizure of the gun was the fruit of this police illegality and that the court should have granted his motion to suppress on this ground. In contrast, the state argues that the defendant was not seized “until he fled the car and Grissette pursued him." (Emphasis added.) The state argues that, at that point in time, the seizure of the defendant was amply supported by a reasonable and articulable suspicion of criminal activity. The state argues that police on the scene were thereafter legally

at a vantage point from which they detected the defendant’s gun in plain view and that the seizure of the gun was not constitutionally infirm.

In its oral ruling, the court appears to have reasoned that because the defendant lacked standing to challenge the legality of any search of the automobile, it was unnecessary to resolve his challenge to the legality of any seizure of his person that preceded any search and, consequently, the admissibility of any evidence tainted by an illegal seizure. Nevertheless, the court addressed the issue of the defendant’s seizure, concluding that “[t]he investigative stop was reasonable . . . .” The court, however, did not specify when such seizure occurred. We distinguish between any search of the automobile and any seizure of the defendant’s person that preceded it that may have tainted such search. We already have concluded that police detected the gun in the automobile in plain view, not incident to a search. We also have concluded that, under these circumstances, the defendant has not demonstrated that the police violated a reasonable privacy interest in conjunction with any search of the automobile. Nonetheless, the defendant may challenge any seizure of his person as constitutionally unreasonable and attempt to demonstrate that the gun should be suppressed because it was tainted by police illegality in this regard.

In order to resolve the defendant’s claim, we must determine when a seizure of the defendant occurred, whether it was constitutionally permissible and, if it was not, whether he correctly asserts that the evidence in question must be excluded as the fruit of an unlawful seizure. The defendant has briefed this claim under the fourth amendment to the federal constitution, as well as article first, § 7, of the Connecticut constitution.

A

Our Supreme Court has interpreted our state charter of liberty as affording broader protection than its federal counterpart when determining whether an individual has been seized. See State v. Oquendo, 223 Conn. 635, 652-53, 613 A.2d 1300 (1992). Accordingly, we will analyze the issue of when the defendant was seized under the stricter state standard. “[A] person [is defined] as seized under our state constitution when by means of physical force or a show of authority, his freedom of movement is restrained. ... In determining whether a seizure has occurred, so as to invoke the protections of our state constitution ... a court is to consider whether in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. . . . Whether there has been such a seizure in an individual case is a question of fact.” (Citations omitted; internal quotation marks omitted.) Id., 647; see also State v. Santos, 267 Conn. 495, 503-504, 838 A.2d 981 (2004); State v. Hill, 237 Conn. 81, 87-88, 675 A.2d 866 (1996); State v. Ward, 83 Conn. App. 377, 381-82, 849 A.2d 860, cert. denied, 271 Conn. 902, 859 A.2d 566 (2004).

In resolving the threshold question of if and when a seizure occurred, we are mindful that our analysis inherently is dependent on the court’s underlying factual determinations, which the defendant materially does not challenge on appeal. As this court has observed, “[w]e do not suggest that there is a litmus-paper test for distinguishing a consensual encounter from a seizure or for determining when a seizure exceeds the bounds of an investigative stop.” (Internal quotation marks omitted.) State v. Van Der Werff, 8 Conn. App. 330, 337, 513 A.2d 154, cert. denied, 201 Conn. 808, 515 A.2d 380 (1986).

On duty police officers interact with individuals for a variety of reasons, many of which have nothing to do with “the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” (Internal quotation marks omitted.) State v. Foote, 85 Conn. App. 356, 361, 857 A.2d 406 (2004) (discussing community caretaking capacity of local police officers), cert. denied, 273 Conn. 937, 875 A.2d 43, 44 (2005). It hardly can be suggested that every encounter between a police officer and an individual, regardless of whether such police officer is investigating criminal activity, constitutes a seizure. For example, a purely consensual encounter between a police officer and an individual in a public place is not necessarily a seizure. What begins as a consensual encounter, however, can escalate into a seizure. “Under our state constitution what starts out as a consensual encounter becomes a seizure if, on the basis of a show of authority by the police officer, a reasonable person in the defendant’s position would have believed that he was not free to leave.” State v. Oquendo, supra, 223 Conn. 653, see also State v. Williams, 227 Conn. 101, 115, 629 A.2d 402 (1993).

The relevant inquiry, therefore, focuses on the degree of authority exhibited by the police officer during his interaction with an individual. Courts have identified several factors to consider in this regard. For example, a police officer may exhibit authority by restricting a defendant’s freedom of movement or by isolating him in some manner. See State v. Greenfield, 228 Conn. 62, 71-72, 634 A.2d 879 (1993). A police officer may also exhibit authority by use of his marked police cruiser, parking his cruiser in close proximity to a defendant’s vehicle, displaying weapons and approaching a defendant at a late hour in an isolated location area. State v. Oquendo, supra, 223 Conn. 653. Certainly, in evaluating whether a reasonable person would feel free to terminate an encounter with a police officer and, thus, whether a seizure has occurred, we look to the words spoken by the police officer, especially those concerning the defendant’s freedom to terminate the encounter. See State v. Britton, 283 Conn. 598, 609, 929 A.2d 312 (2007). As the foregoing authorities suggest, with regard to a police officer’s show of authority, even a brief encounter between a police officer and an individual may consist of distinct stages, each of varying degrees of relevance.

In the present case, the court did not make any findings concerning when the defendant was seized but concluded that, at the time the defendant was seized, an investigative stop was lawful. The court accepted as true Grissette’s uncontroverted testimony, which is set forth previously. On the basis of the court’s findings, we conclude that the defendant was not seized until Grissette began to pursue him following his flight from the parked automobile. We base our conclusion on several factors. When Grissette arrived on the scene, he parked his marked police cruiser in the street in front of the residence. He did not park in the parking area near the defendant, and there is no evidence that he parked his vehicle such that he blocked the path of travel of the automobile in which the defendant was a passenger. Grissette did not interrupt the defendant’s travel because the automobile already was stopped and parked when Grissette encountered it. There is no evidence that Grissette drove past the defendant before parking his cruiser or had used any device, such as flashing lights, a siren or a loud speaker, to draw attention to himself.

Grissette, dressed in his police uniform, approached the driver’s side of the automobile only, asked the driver to open his window and asked the occupants: “Do either one of you live here?” There is no evidence that Grissette approached the automobile in an outwardly aggressive or rushed manner, that he brandished any type of weapon or that he spoke to the occupants using a loud tone of voice. Grissette was the only officer to interact with the defendant at the scene prior to the defendant’s flight; officers had not surrounded the automobile. The driver and the defendant answered Grissette’s questions while they were seated in the automobile; there is no evidence that they asked to terminate the encounter. Also, there is no evidence that Grissette instructed either occupant to exit the vehicle, to raise his hands, to remain on the scene or to accompany him anywhere. Grissette asked questions without instructing the defendant or the driver that they were obligated to respond, that they were not free to leave or that they were suspected of having committed any crime. Further, Grissette did not seize any personal property of the driver or the defendant.

We are mindful that Grissette’s mere appearance in a police uniform, at a late hour, at the driver’s door, might be said to have conveyed some degree of authority. Yet, when we examine the totality of the circumstances, including Grissette’s words and actions, we do not conclude that, before the defendant ran from the automobile, he conveyed such a degree of authority that a reasonable person in the defendant’s position could have believed that he was not free to terminate the encounter and leave the scene. Thus, we disagree with the defendant that he had been seized when Grissette approached the automobile or merely began conversing with the driver and the defendant.

In reaching our conclusion, we distinguish the present case from State v. Oquendo, supra, 223 Conn. 635, on which the defendant relies. On appeal, the defendant in Oquendo claimed that the trial court improperly had denied his motion to suppress physical and identification evidence that he argued was the fruit of an illegal seizure. Id., 640. Our Supreme Court set forth the relevant facts underlying the claim: “On August 29, 1988, at approximately 12:50 a.m., [Wallingford police officer William Bimey, a patrolman with approximately two and one-half years of experience at the time relevant to the appeal] was patrolling in the area of East Main Street and Center Street in Wallingford in a marked police cruiser. Birney was wearing a uniform and a badge and was armed with a nightstick and a firearm. Bimey described the area as primarily residential, with a shopping plaza that contains several small businesses. At the time of the patrol, all of the businesses were closed. Bimey was aware that there had recently been a series of burglaries on East Main Street.

“As Bimey drove east on East Center Street, he saw a man and a woman walking toward him. He recognized the woman as Nanette Wilhams, whom he recognized as having recently been arrested on larceny and burglary charges. Although it was ‘very warm’ out, Wilhams was wearing a ‘thick jacket.’ Her male companion, later identified as the defendant, was wearing a zipped ‘winter’ jacket and carrying a tan, ‘gym type’ duffel bag. As Bimey drove past Wilhams and the defendant, they ‘kind of looked at each other’ and appeared to quicken their pace. Bimey was familiar with Wallingford's ‘street people’ and had never seen the defendant. Bimey thought that it was ‘strange’ that the defendant was wearing a winter jacket when it was ‘so warm out.’ It was not raining at the time. Bimey knew from experience that burglars often wear heavy clothing to protect themselves from injury when they break windows. He had a ‘hunch’ that Wilhams and the defendant had recently committed or were about to commit a burglary.

“Bimey turned the cruiser around and drove back in the direction of Wilhams and the defendant. He stopped about seven yards away from them, exited the cruiser and stood by the driver’s side door. Bimey asked Wilhams what she and the defendant were doing. She rephed that they were coming from the Junction Cafe. Bimey knew that they were, in fact, walking in the direction of the Junction Cafe and that the cafe had closed at 11 p.m., nearly two hours earlier. Bimey then asked the defendant to identify himself and the defendant answered, ‘Freddy Velez.’ Both Wilhams and the defendant appeared nervous and kept glancing at each other. Bimey asked the defendant to approach the cruiser. The defendant handed the duffel bag to Williams and stepped toward Bimey. Bimey instmcted the defendant to bring the bag with him. The defendant then ‘grabbed the bag away from [Williams], gave a quick look up and down and ran away.’ Bimey yelled to the defendant to ‘stop’ and pursued him on foot through a yard and into a wooded area. Bimey saw the defendant throw down the duffel bag as he entered the wooded area. Bimey retrieved the bag, which was open. Inside the duffel bag he saw two plastic bags containing white powder, which subsequently tested positive for cocaine.” Id., 640-42.

In its denial of the defendant’s motion to suppress the duffel bag and Bimey’s identification of the defendant, the trial court in Oquendo determined that an investigative stop of the defendant had occurred “at some point after Bimey exited his cruiser and began to question the defendant and Williams”; id., 642; and that Bimey’s seizure of the defendant was lawfully supported by “a reasonable and articulable suspicion to believe that the defendant had been, or was about to be, engaged in criminal activity . . . .” Id., 643.

Our Supreme Court, applying article first, §§ 7 and 9, of the Connecticut constitution, resolved the issue of when a seizure of the defendant had occurred as follows: “Bimey was on patrol in a marked police cruiser. He drove past the defendant and Williams, turned around and stopped approximately twenty feet from them. Bimey then stepped out of the cruiser and stood next to the driver’s door as the defendant and Williams walked toward him. Bimey was dressed in full police uniform and visibly armed with a gun and a nightstick. After Bimey asked Williams where she and the defendant were going, he asked the defendant his name. The defendant gave him the name ‘Freddy Velez.’ Bimey told the defendant to approach the cmiser. The defendant gave the bag to Williams and stepped toward Bimey. Bimey told the defendant to bring the bag with him.

“The state characterizes this entire interaction as a consensual encounter. Under our state constitution what starts out as a consensual encounter becomes a seizure if, on the basis of a show of authority by the police officer, a reasonable person in the defendant’s position would have believed that he was not free to leave. ... In view of all the circumstances, including the lateness of the hour, the fact that Bimey was armed and the fact that there was no one other than the defendant and Williams in the vicinity, we are persuaded that a reasonable person in the defendant’s position would not have believed that he was free to ignore Bimey’s instructions and walk away.” (Citation omitted.) Id., 652-53. The court thereafter concluded that the trial court’s determination that the seizure was based on a reasonable and articulable basis of suspicion was clearly erroneous and that the court should have excluded the evidence that was tainted by the illegal seizure. Id., 657.

At issue in Oquendo, as in the present case, was the nature of the encounter between the defendant and the police officer prior to the officer’s foot pursuit. In this regard, there are some relevant factual similarities between Oquendo and the present case. In both cases, the encounter prior to pursuit occurred late at night, although it occurred nearly three hours later in the evening in Oquendo. Id., 641. In both cases, there was no one other than the defendant and an acquaintance in the vicinity when the encounter occurred. Both encounters involved an officer in uniform who initially arrived on the scene in a marked police cruiser. Id. The factual differences between the cases, however, are significant and material. In Oquendo, the officer displayed his authority by driving past the defendant before turning around and stopping his cruiser a short distance away from him. Id. The officer, visibly armed with a gun and a nightstick, did not merely ask the defendant questions concerning his identity and activities. Instead, the officer exited his cruiser on a public roadway, asked the defendant and Williams questions and attempted to restrict the defendant’s freedom of movement by telling him to approach him with his duffel bag. Id., 642. These factors, which are directly related to the display of authority by the police prior to pursuit, distinguish Oquendo from the present case.

The nature of the encounter between Grissette and the defendant, however, changed when, as the court found, the defendant “burst” out of the automobile after another police officer arrived on the scene. At that point, Grissette chased the defendant until he stopped at a fence, grabbed the defendant and handcuffed him. Grissette’s conduct in pursuing and, shortly thereafter, restraining the defendant unquestionably constituted a strong display of police authority. Such pursuit and physical restraint clearly conveyed that the encounter was no longer consensual. At this point, no reasonable person in the defendant’s position would have believed that he was free to terminate the encounter and to leave the scene. Thus, at the time of the pursuit, a seizure of the defendant had occurred.

B

Having determined the time at which a seizure of the defendant took place, we must next determine whether the court properly concluded that the seizure was constitutionally permissible.

At the suppression hearing, the state justified the warrantless seizure of the defendant on the basis of a lawful investigative detention. The state argued that the seizure was supported by a reasonable and articulable suspicion. Conversely, the defendant argued that his seizure was not supported by a reasonable and articulable suspicion. The court determined that, under the circumstances, an “investigative stop” was lawful. The parties dispute the correctness of the court’s determination that a lawful investigative detention occurred at the time of the defendant’s seizure; the defendant claims that an investigatory detention, albeit an illegal one, occurred at the moment he was seized. This court must “decide [the] case on the theory on which it was tried and decided in the trial court, and briefed and argued in this court.” State v. Martin, 2 Conn. App. 605, 612B, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985); see also State v. Groomes, 232 Conn. 455, 468 n.13, 656 A.2d 646 (1995) (court examines legality of seizure on basis of theory of seizure analyzed by defendant). That theory is that the seizure, to be lawful, must have been based on a reasonable and articulable suspicion.

The law regarding investigative detentions is well settled in federal and state jurisprudence. “Article first, §§ 7 and 9 of our state constitution permit a police officer in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes even though there is no probable cause to make an arrest. ... In determining whether the detention was justified in a given case, a court must consider if [b]ased upon the whole picture the detaining officers [had] a particularized and objective basis for suspecting the particular person stopped of criminal activity. . . . A court reviewing the legality of a stop must therefore examine the specific information available to the police officer at the time of the initial intrusion and any rational inferences to be derived therefrom. . . . These standards, which mirror those set forth by the United States Supreme Court in Terry v. Ohio, [392 U.S. 1, 20-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)], with regard to fourth amendment analysis, govern the legality of investigatory detentions under article first, §§ 7 and 9 of our state constitution.” (Citations omitted; internal quotation marks omitted.) State v. Donahue, 251 Conn. 636, 643-44, 742 A.2d 775 (1999), cert. denied, 531 U.S. 924, 121 S. Ct. 299, 148 L. Ed. 2d 240 (2000).

“Police have the right to stop for investigation short of arrest where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot. . . . [I] n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Internal quotation marks omitted.) Id., 645.

“When considering the validity of a Terry stop, our threshold inquiry is twofold. . . . First, we must determine at what point, if any, did the encounter between [the police officer] and the defendant constitute an investigatory stop or seizure. . . . Next, [i]f we conclude that there was such a seizure, we must then determine whether [the police officer] possessed a reasonable and articulable suspicion at the time the seizure occurred.” (Citations omitted; internal quotation marks omitted.) State v. Santos, supra, 267 Conn. 503.

Prior to the time of the seizure, Grissette became aware of several facts. Upon arriving at the scene, he observed a black automobile with New York marker plates occupied by two black males. The automobile and its occupants fit the description provided by Grissette’s dispatcher, and the automobile was present at the exact location provided to him. There was no evidence that Grissette, or the police generally, had any prior relationship with the source of this information provided to the police. To the extent that the tipster who provided this information to the police predicted that drug activity was occurring at that location, Grissette did not observe any such activity.

Having corroborated innocuous yet detailed facts that were provided to the police, Grissette approached the automobile. The driver and the defendant replied that they did not live at that private location and did not volunteer any lawful purpose for their presence there at 10 p.m. The driver hesitantly provided factually inaccurate responses to Grissette’s basic inquiries concerning his name and date of birth. Shortly thereafter, the defendant hastily exited the automobile and began to run away from it.

The foregoing circumstances, viewed in their totality, yielded sufficient specific and articulable facts to render Grissette’s seizure of the defendant constitutionally reasonable. We must presume that Grissette applied his police experience and common sense in analyzing these circumstances. The defendant’s unexplained presence at the scene, the driver’s inaccurate responses as well as the defendant’s conduct in running from the automobile are factors that would lead a reasonable observer to believe that the defendant was acting in a suspicious manner and that criminal conduct was afoot. Our conclusion does not rest on any single factor but all of these factors in their totality. Certainly, the defendant’s flight, absent any provocation by the police, was significant. “Flight from the police properly can be considered in determining whether a reasonable and articulable basis of suspicion exists where the defendant flees before the police attempt to stop him. See Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 676, 145 L. Ed. 2d 570 (2000); State v. Groomes, supra, 232 Conn.

471-72; State v. Rodriguez, 14 Conn. App. 574, 578, 542 A.2d 342 (1988).” State v. Wright, 58 Conn. App. 136, 145-46, 752 A.2d 1147, cert. denied, 254 Conn. 907, 755 A.2d 884 (2000); see also State v. Oquendo, supra, 223 Conn. 656 (noting “police conduct that provokes flight precludes the consideration of this factor” [emphasis in original]). Also, this is not a case, as the defendant suggests, in which a seizure was based solely on uncorroborated information provided by an anonymous tipster. As discussed previously, the information provided by the tipster led to a consensual encounter; the conduct observed during that encounter reasonably constituted a particularized and objective basis to suspect that the defendant was engaged in criminal activity. Further, although the defendant does not argue that an unreasonable degree of restraint was inflicted on him during this detention, we conclude that such restraint was not unreasonable in light of his flight from Grissette.

We conclude that the defendant’s seizure was supported by a reasonable and articulable suspicion that he was engaged in criminal conduct. The defendant has failed to demonstrate that his seizure was unlawful and, thus, cannot demonstrate that the gun was in any sense the fruit of police illegality related to that seizure.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law provided a trial court has determined that a ruling on such motion to suppress or motion to dismiss would be dispositive of the case. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of noryurisdictional defects in the criminal prosecution.”

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The court sentenced the defendant to a total effective term of incarceration of twenty years, suspended after twelve years. The charges for which the defendant entered a plea of nolo contendere arose separately from the charges for which he entered a plea under the Alford doctrine. Each set of charges was brought under separate informations and separate docket numbers, which the court joined for trial prior to the date of the defendant’s pleas. The claims raised by the defendant in this appeal relate solely to his conviction of criminal possession of a firearm.

       The court determined that its denial of the motion to suppress was dispositive of the possession count only. Accordingly, the possession count is the only count from which the defendant properly has exercised his right of appeal and the only count at issue in this appeal. See General Statutes § 54-94a.

       The court subsequently signed a transcript of its ruling, thereby bringing its decision into compliance with Practice Book § 64-1.

       In his principal appellate brief, the defendant asserted and fully analyzed his claim that the constitution of Connecticut “provides automatic standing to challenge the seizure of possessions in a case involving a possessory offense.” In its appellate brief, the state disagreed with this claim. Subsequent to the filing of the parties’ appellate briefs, our Supreme Court released State v. Davis, 283 Conn. 280, 929 A.2d 278 (2007). By letter, prior to the time of oral argument before this court, we invited the parties to be prepared to discuss the impact, if any, of Davis on the issue of standing in this case. During oral argument, the parties were in agreement that Davis was controlling and was adverse to the defendant’s claim that the constitution of Connecticut embodied the principle of automatic standing. We agree that Davis is dispositive of this state constitutional claim and, in reliance thereupon, we reject without further discussion the automatic standing aspect of the defendant’s claim and will analyze the issue of standing under the proper principles of law.

       Of course, a determination that an item has been detected in plain view, and not incident to a search, does not necessarily preclude a defendant from asserting successfully that such item should be suppressed as the fruit of police illegality.

       The use of the same analytical framework or methodology, however, does not necessarily dictate that the same outcome will be reached under both constitutions. See State v. Joyce, supra, 229 Conn. 18 n.12.

       “Under the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality. . . . Application of the exclusionary rule, however, is not automatic. [E]vidence is not to be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is so attenuated as to dissipate the taint. . . . [N]ot all evidence is fruit of the poisonous tree simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which [the] instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. . . . The initial determination is, therefore, whether the challenged evidence is in some sense the product of illegal government activity.” (Citations omitted; internal quotation marks omitted.) State v. Spencer, 268 Conn. 575, 599-600, 848 A.2d 1183, cert. denied, 543 U.S. 957, 125 S. Ct. 409, 160 L. Ed. 2d 320 (2004).

       In contrast, “[a] person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement . . . through means intentionally applied .... Thus, an unintended person . . . [may be] the object of the detention, so long as the detention is willful and not merely the consequence of an unknowing act. ... A police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise there is at most an attempted seizure, so far as the Fourth Amendment is concerned.” (Citations omitted; internal quotation marks omitted.) Brendlin v. California, 551 U.S. 249, 254, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007).

       Grissette opined that, once he had asked the defendant to provide his name and date of birth, the defendant was not free to leave the scene. While we note Grissette’s opinion because the defendant relies on it in support of his claims, it is of no consequence because it is the defendant’s reasonable belief, and not the police officer’s, that is pivotal to our analysis.

       Although Grissette testified that another officer arrived on the scene just prior to the defendant’s flight, there are absolutely no findings by the court or other evidence concerning that officer’s conduct or presence at the scene. Absent any findings that this second police officer had any interaction with the defendant prior to his flight from the parked automobile, or that the defendant was aware or in a position to be aware of his presence at the scene prior to that time, we do not afford significance to his mere arrival on the scene prior to Grissette’s pursuit of the defendant.

       Thus, although Grissette testified that he arrested the defendant shortly after apprehending him, we are not asked to determine whether the defendant’s seizure constituted an arrest supported by probable cause.

       The state argued before the trial court, and has argued before this court, that the defendant’s conduct supported a reasonable and articulable suspicion that the defendant had committed the crime of trespassing. The trial court also deemed it material that the defendant had been charged with criminal trespassing following his seizure.


author: PER CURIAM.

text:
    ELIAS BARON v. CULVER AND ASSOCIATES, LLC
    (AC 28551)
    DiPentima, McLachlan and Lavine, Js.
    Submitted on briefs January 4
    officially released March 25, 2008

      Garrett A. Denniston filed a brief for the appellant (defendant).

      Warren Miller filed a brief for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant, Culver & Associates, LLC, appeals from the judgment of the trial court rendered in favor of the plaintiff, Elias Baron, doing business as E. Baron Construction, in this breach of contract action. On appeal, the defendant claims that the court’s findings that a contract existed between the parties and that the plaintiff completed the work and, thus, was entitled to the remainder of his payment were clearly erroneous. We affirm the judgment of the trial court.

The court found the following relevant facts. The defendant hired the plaintiff as a subcontractor for construction of a deck and other renovations on an addition to a sunroom at premises located in Westerly, Rhode Island. The defendant agreed to pay the plaintiff the sum of $18,694 for the work. The plaintiff completed the work in accordance with the agreement on or about June 25, 2005. The plaintiff alleged that the defendant had paid him only $14,728, leaving a balance of $3966, which was due and payable upon completion of the work. The plaintiff testified that he demanded payment by the defendant after he had done the work required.

On June 28, 2005, having agreed that the plaintiff should be paid $3966, the defendant told the plaintiff that he would issue him a check for that amount. The defendant, however, did not issue a check. Instead, the defendant refused to pay the plaintiff as he had promised because he found that the work was not done or was done poorly. The plaintiff acknowledged that there was a punch list, enumerating items to be completed, and he testified that he had been willing to complete the items on the punch list. The defendant, however, ordered him to stay off the property after he had demanded payment for the balance due from the defendant and was refused payment by the defendant. The plaintiff also testified that the property owner was satisfied with the work that he had done and had paid the defendant. The plaintiff brought suit on September 27, 2005, and the defendant then filed special defenses and a counterclaim.

The court found in favor of the plaintiff and awarded him damages in the claimed amount. The court found against the defendant on the counterclaim and on the special defenses. In making its ruling, the court noted that there had been no claim of bad or incomplete work until after the plaintiff brought suit for payment. This appeal and cross appeal followed.

“As an appellate court, our review of trial court decisions is limited to determining whether their legal conclusions are legally and logically correct, supported by facts set out in the memorandum of decision. . . . Whether a contract . . . exists is a question of fact for the court to determine. ... If the factual basis of the court’s decision is challenged, our review includes determining 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. ... A court’s determination is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Citation omitted; emphasis in original; internal quotation marks omitted.) MacDonald v. Pinto, 62 Conn. App. 317, 319-20, 771 A.2d 156 (2001).

On the basis of our review of the record, we conclude that there was evidence presented to support the court’s conclusions that a contract existed between the plaintiff and the defendant and that the defendant breached the contract when he refused to pay the plaintiff. Accordingly, the court’s findings that there was a contract and that the defendant was in breach of the contract were not clearly erroneous.

The judgment is affirmed.


author: GRUENDEL, J.

text:
    WILFRED J. MEGIN v. ZONING BOARD OF APPEALS OF THE TOWN OF NEW MILFORD
    (AC 27947)
    McLachlan, Gruendel and Pellegrino, Js.

      Argued January 16
    officially released March 25, 2008

      Max F. Brunswick, for the appellant (plaintiff).

      Scott R. McCarthy, for the appellee (defendant).
   Opinion

GRUENDEL, J.

In this certified zoning appeal, the plaintiff, Wilfred J. Megin, appeals from the judgment of the Superior Court affirming the decision of the defendant, the zoning board of appeals (board) of the town of New Milford (town), to uphold a cease and desist order. The plaintiffs sole claim on appeal is that the board improperly permitted land use inspector Sarah Acheson to participate in its deliberations after the close of the public hearing, thereby violating his right to fundamental fairness. We affirm the judgment of the Superior Court.

At issue in this appeal is the storage of numerous motor vehicles and related debris on 64 Old Town Park Road, which is located in an R-40 residential zone of the town and at all relevant times was owned by the plaintiff. The town zoning regulations permit four uses in residential zones; use as a junkyard is forbidden. The term “junkyard” is defined in part in the regulations as “any place of storage or deposit, whether in connection with a business or not, for two or more unregistered, used motor vehicles which are either no longer intended or in condition for legal use on the public highways and shall also include any place or storage or deposit for used parts of motor vehicles and old metals, iron, glass, paper, cordage and other waste materials which on any lot have an aggregate bulk equal to one automobile.” New Milford Zoning Regs., § 15-010. Junkyards are permitted “as a special permit use” only in MV zones. Id., § 70-010 et al.

By letter dated October 2, 2000, zoning enforcement officer Kathy Castagnetta informed the plaintiff that “[i]t has been brought to my attention that you are storing unregistered and/or unroadable motor vehicles including a trailer on your property in the residential zone. . . . Please be advised that . . . these activities are not permitted in the residential zone in the [t]own. ... You are hereby ordered to remove all unregistered and/or unroadable vehicles from the property within 15 days of receipt of this letter.” When the plaintiff did not comply, a cease and desist order issued on December 7, 2004. That order stated in relevant part that “[a]s a result of a field inspection on December 3, 2004, I have determined that the following violation exists: (1) This property is being used as a junkyard. This condition violates chapter 25 of the [regulations], which does not permit a junkyard in a residential zone in the town. Junk vehicles, trailers and other debris must be removed from this property.” Acheson signed the order.

In a written response, the plaintiff averred that “I am not running a junkyard, never have run a junkyard, have no intention of having a junkyard, have no certificate of business for a junkyard . . . .” By letter dated December 16, 2004, Acheson responded as follows: “According to the [regulations], your property is most definitely a junkyard. If I am wrong and the dozens of vehicles and trailers on the premises are registered, then I will lift the cease and desist order. However, until you can provide proof of registration this order will remain in effect. You do have the right to appeal it to the [board] within thirty days of receipt.” The plaintiff filed such an appeal.

More than one month prior to the hearing on the plaintiffs appeal, Acheson prepared a memorandum for the board. That February 7, 2005 memorandum stated in relevant part: “There are dozens of unregistered vehicles and trailers, as well as a variety of construction materials and debris, on this residential lot. This fact is evident in the photos I have taken on December 3, 2004, January 7, 2005 and January 25, 2005. This is the worst junkyard situation that I have seen in a residential area. It is clearly a violation and no valid reason for the presence of this junk has been offered to the zoning office. . . . The negative impact on the neighborhood can be felt from speaking with neighbors who have given up hope of ever seeing the vehicles removed. After years of living with these items within feet (in the worst case) of their backyards, they have resigned themselves to looking at the blight daily. . . . The amount of unregistered vehicles and other debris on site clearly classifies this site as a junkyard, which is not permitted in any zone other than MV motor vehicle district.”

The board held a hearing on the plaintiff’s appeal on March 16,2005. Both the plaintiff, who was represented by attorney Max F. Brunswick, and Acheson appeared. During the public hearing, the plaintiff claimed for the first time that he had a nonconforming use of the property. He did not deny that he had numerous motor vehicles and related debris stored on the property. In response to a question from a board member, Acheson stated that “ [t]here’s absolutely no record of this [preexisting] use. If it were a farm and they had equipment there, then that might be a use that went along with the farm, but as far as I know, this property is not being used as a farm.” The transcript shows that at the conclusion of the public hearing, the board commenced its “business meeting.” No explanation is provided for Acheson’s presence at that meeting.

Acheson made a total of four remarks during that meeting. First, she stated that “I think [the plaintiff is] saying it is a junkyard but it’s preexisting.” Second, in response to a question about how many vehicles were on the property, Acheson replied, “dozens, dozens.” Third, Acheson noted that the issue of preexisting use “came up tonight, by the way.” Finally, Acheson stated that the plaintiffs property was “not even a farm.” At the conclusion of the meeting, the board voted unanimously to uphold the cease and desist order. The plaintiff appealed from that decision to the Superior Court, which rendered judgment dismissing his appeal.

On appeal to this court, the plaintiff claims that Acheson’s participation in the business meeting violated his right to fundamental fairness. We generally employ a deferential standard of review to the actions of a zoning board. See, e.g., Wing v. Zoning Board of Appeals, 61 Conn. App. 639, 643, 767 A.2d 131, cert. denied, 256 Conn. 908, 772 A.2d 602 (2001). “[Cjourts are not to substitute their judgment for that of the board, and . . . the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . . .” (Emphasis added; internal quotation marks omitted.) Jaser v. Zoning Board of Appeals, 43 Conn. App. 545, 547, 684 A.2d 735 (1996). In the present case, the plaintiff challenges not the ultimate decision of the board but, rather, the fundamental fairness of the board’s hearing. The question of whether the board violated the plaintiffs right to fundamental fairness in that administrative proceeding presents a question of law over which our review is plenary. Cf. GMAC Mortgage Corp. v. Glenn, 103 Conn. App. 264, 273, 931 A.2d 290 (2007) (issue of whether court violated procedural due process rights is question of law over which review is plenary).

“While proceedings before zoning and planning boards and commissions are informal and are conducted without regard to the strict rules of evidence . . . they cannot be so conducted as to violate the fundamental rules of natural justice.” (Citations omitted.) Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 207, 355 A.2d 21 (1974). “Fundamentals of natural justice require that there must be due notice of the hearing, and at the hearing no one may be deprived of the right to produce relevant evidence or to cross-examine witnesses produced by his adversary .... Put differently, [d]ue process of law requires that the parties involved have an opportunity to know the facts on which the commission is asked to act . . . and to offer rebuttal evidence.” (Citations omitted; internal quotation marks omitted.) Grimes v. Conservation Commission, 243 Conn. 266, 274, 703 A.2d 101 (1997). In short, “[t]he conduct of the hearing must be fundamentally fair.” Bancroft v. Commissioner of Motor Vehicles, 48 Conn. App. 391, 408, 710 A.2d 807, cert. denied, 245 Conn. 917, 717 A.2d 234 (1998); see also R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 20:14, p. 587.

While “zoning boards and commissions are entitled to technical and professional assistance in matters which are beyond their expertise . . . and that such assistance may be rendered in executive session,” our Supreme Court has held that “[t]he use of such assistance . . . cannot be extended to the receipt, ex parte, of information supplied by a party to the controversy without affording his opposition an opportunity to know of the information and to offer evidence in explanation or rebuttal.” (Citation omitted.) Pizzola v. Planning & Zoning Commission, supra, 167 Conn. 208. In Norooz v. Inland Wetlands Agency, 26 Conn. App. 564, 602 A.2d 613 (1992), this court discussed in detail that aspect of local administrative procedure. Echoing Pizzola, the court first noted that “[o]ur law clearly prohibits the use of information by a municipal agency that has been supplied to it by a party to a contested hearing on an ex parte basis.” Id., 569. It then discussed a number of cases from our Supreme Court that, in contrast to that general rule, “have approved the consideration of information by a local administrative agency supplied to it by its own technical or professional experts outside the confines of the administrative hearing.” Id., 570, citing Holt-Lock, Inc. v. Zoning & Planning Commission, 161 Conn. 182, 184-85, 286 A.2d 299 (1971); McCrann v. Town Plan & Zoning Commission, 161 Conn. 65, 77-78, 282 A.2d 900 (1971); Kyser v. Zoning Board of Appeals, 155 Conn. 236, 249-51, 230 A.2d 595 (1967); Yurdin v. Town Plan & Zoning Commission, 145 Conn. 416, 420-21, 143 A.2d 639, cert. denied, 358 U.S. 894, 79 S. Ct. 155, 3 L. Ed. 2d 121 (1958). The court emphasized that “[i]n each of these cases, the extrarecord information received by the . agency from its technical consultant was not sufficient reason to invalidate the administrative decision.” Norooz v. Inland Wetlands Agency, supra, 571.

Turning to the controversy before it, the Norooz court concluded that the “broad exception to the general prohibition on communications received by administrative agencies outside the confines of the hearing. . . . needs further analysis before it should be applied.” Id., 571. The court discussed the proper use of extrarecord analysis of evidence already in the record, stressing a focus on “the nature and content of the extrarecord information relied on by an administrative agency . . . .” (Citation omitted.) Id., 573. It then concluded: “The proper inquiry for a reviewing court, when confronted with an administrative agency’s reliance on non-record information provided by its technical or professional experts, is a determination of whether the challenged material includes or is based on any fact or evidence that was not previously presented at the public hearing in the matter.” Id., 573-74.

Finally, the Norooz court applied that inquiry to the facts at hand. First, the court noted that “[n] either the trial court nor the plaintiffs have identified any fact or evidence relied on in those [communications] which was not already evidence of record in the administrative proceedings.” Id., 574. Second, the court’s review of the record of the administrative proceedings indicated that the communications by the agency’s technical or professional experts outside the confines of the administrative hearing were “limited to a review of, a comment on and an opinion concerning evidence of record.” Id. In addition, the court stressed that there was “no indication or suggestion in either [communication] that facts not already of record in the lengthy administrative proceeding were considered by [the town engineers] in forming [their] conclusions and recommendations to the agency.” Id. As a result, the court concluded that the agency properly relied on those ex parte communications. Id.

In the present case, it is undisputed that Acheson participated in the board’s business meeting following the close of the public hearing on the plaintiffs appeal. Without providing any Connecticut authority to support his proposition, the plaintiff asks us to hold that Acheson’s participation therein constituted a per se violation of the right to fundamental fairness. We decline that invitation. Instead, consistent with the aforementioned precedent, we must examine the record to determine whether Acheson’s participation in the board’s business meeting in this case amounted to a violation of the plaintiffs right to fundamental fairness.

Significantly, Acheson did not offer any fact or evidence at that meeting that was not already evidence of record. Her statement that “I think [the plaintiff is] saying it is a junkyard but it’s preexisting” is an accurate, if not verbatim, description of the plaintiffs testimony at the public hearing. Her statement that “dozens” of vehicles were on the property finds support in both her December 16, 2004 letter to the plaintiff that references “the dozens of vehicles and trailers on the premises” and her February 7, 2005 memorandum that states that “ [t]here are dozens of unregistered vehicles and trailers, as well as a variety of construction materials and debris, on this residential lot.” Acheson’s statement is also supported by the photographs of the plaintiffs property that were furnished to the board, which depict numerous vehicles thereon. Furthermore, at no stage of the proceedings did the plaintiff refute or deny that allegation. Our thorough review of the record indicates that Acheson’s observation that the preexisting use issue “came up tonight, by the way” is correct; at no time prior to the March 16, 2005 hearing did the plaintiff raise that issue before either the board, the zoning enforcement officer or Acheson. Finally, Acheson’s statement that the property was “not even a farm” simply repeats her testimony at the public hearing that “as far as I know, this property is not being used as a farm.” Thus, as in Norooz, the communications made by Acheson outside the confines of the public hearing were limited to a review of, and a comment on, evidence of record. See also Brookfield Plaza Ltd. Partnership v. Zoning Commission, 21 Conn. App. 489, 494, 574 A.2d 825 (1990) (chairman’s report “merely a summary of his personal observations of the area and of what had transpired at the public hearing”). Indeed, at oral argument before this court, counsel for the plaintiff was asked precisely what statement by Acheson at the business meeting was new evidence, and counsel conceded, “I can’t show what she said was new evidence.”

Although we are mindful that the use of professional assistance in an executive session “cannot be extended to the receipt, ex parte, of information supplied by a party to the controversy without affording his opposition an opportunity to know of the information and to offer evidence in explanation or rebuttal”; Pizzola v. Planning & Zoning Commission, supra, 167 Conn. 208; the record indicates that Acheson provided no additional information to the board during its business meeting. As such, her participation in the meeting did not violate the plaintiffs right to fundamental fairness.

Furthermore, even if we were to conclude that Acheson’s participation in the board’s business meeting was improper, we would still conclude that it did not amount to a violation of the right to fundamental fairness. Although the plaintiff insists that “there is no such thing” as a harmless deprivation of that right, he is mistaken. It is well settled that “[a]n ex parte communication raises a rebuttable presumption of prejudice. Once the plaintiff shows that an improper ex parte communication has occurred, the burden of showing that the communication was harmless shifts to the party seeking to uphold the validity of the zoning commission’s decision.” Daniel v. Zoning Commission, 35 Conn. App. 594, 597, 645 A.2d 1022 (1994); see also Maker v. Planning & Zoning Commission, 212 Conn. 471, 480, 562 A.2d 1093 (1989) (same); Connecticut Natural Gas Corp. v. Public Utilities Control Authority, 183 Conn. 128, 139, 439 A.2d 282 (1981) (inclusion of improper evidence in record on which decision based does not by itself invalidate decision; use of improper evidence requires remand only if party has affirmatively shown substantial prejudice); First Hartford Realty Corp. v. Plan & Zoning Commission, 165 Conn. 533, 545, 338 A.2d 490 (1973) (“[e]ven if the reception of the post-hearing evidence was illegal ... it was at most harmless error because the action of the commission is adequately supported by assigned reasons not based on the allegedly tainted evidence”); Kyser v. Zoning Board of Appeals, supra, 155 Conn. 251 (“plaintiffs were in no way prejudiced by what happened during the executive session”); R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 47:4, pp. 54-55 (“[t]here must be a showing of substantial prejudice resulting from illegal receipt of the evidence by the agency in order to obtain a reversal of its decision”). As this court recently observed, “[w]e know of no rule of law that requires a judgment or administrative decision automatically to be set aside because of the receipt or preclusion of a single piece of evidence in violation of the requirements of due process. Even in criminal cases, the law inquires into whether the taint resulting from the improper admission was harmful in light of the record as a whole. . . . The same rule applies to administrative hearings . . . and to zoning cases.” (Citations omitted.) Crabtree Realty Co. v. Planning & Zoning Commission, 82 Conn. App. 559, 571, 845 A.2d 447, cert. denied, 269 Conn. 911, 852 A.2d 739 (2004).

We conclude that the defendant has met its burden of establishing that Acheson’s participation in the board’s business meeting was harmless. She provided no additional information to the board during its business meeting. Each of her four statements was based on evidence already in the record. Accordingly, the plaintiffs right to fundamental fairness was not violated in the present case.

The judgment is affirmed.

In this opinion the other judges concurred.

       In hearing the plaintiffs appeal from the decision of the zoning board of appeals, the Superior Court acts as an appellate body. See General Statutes § 8-8; see also Par Developers, Ltd. v. Planning & Zoning Commission, 37 Conn. App. 348, 353, 655 A.2d 1164 (1995) (noting zoning appeals in which Superior Court “reviewed the agency’s decision in an appellate capacity”).

       The four permitted uses in residential zones are: (1) single-family dwellings; (2) farms; (3) keeping or stabling of horses or livestock; and (4) home occupations. New Milford Zoning Regs., § 25-020.

       The plaintiff has raised no issue, either before the Superior Court or this court, with respect to Acheson’s February 7, 2005 memorandum to the board.

       The record includes half a dozen letters from the plaintiff to Acheson or the board prior to the March 16, 2005 hearing concerning the use of his property. None mention any preexisting use. We further note that, in this appeal, the plaintiff has not raised any claim as to that allegedly preexisting use.

       It is unclear from the record whether the plaintiff and his attorney left before or after the close of the public hearing. The transcript reveals that during the public hearing, Acheson stated that “I didn’t know he was leaving, ” at which point board chairwoman Joanne Chapin stated, “[w]ell, are we going to close this?” Board member Janice Dobson responded, “[l]et’s close it, and we can talk about it in the business meeting,” and a motion to close the public hearing was made and approved by all board members.

       Although the plaintiff at times references a “due process” violation, he acknowledges in his appellate brief that “[w]hat is required is the common-law right to fundamental fairness” and argues that the administrative proceeding at issue “was fundamentally unfair.” That common-law right is not coextensive with constitutional due process. As our Supreme Court explained: “The right to fundamental fairness in administrative proceedings encompasses a variety of procedural protections, including the right to adequate notice that is at issue in this case. ... In a number of administrative law cases decided after [Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972)], we have characterized these procedural protections as ‘due process’ rights. . . . Although the ‘due process’ characterization, at first blush, suggests a constitutional source, there is no discussion in these cases of a property interest in terms of constitutional due process rights. These decisions are, instead, based on aline of administrative law cases and reflect the development, in Connecticut, of a common-law right to due process in administrative hearings. Although the facts of the present case do not require us to explore its boundaries, this common-law right is not coextensive with constitutional due process. . . . Therefore, to eliminate any further confusion, we will discontinue the use of the term ‘due process’ when describing the right to fundamental fairness in administrative proceedings.” (Citations omitted.) Grimes v. Conservation Commission, 243 Conn. 266, 273 n.11, 703 A.2d 101 (1997). In accordance with that precedent, we likewise describe the plaintiffs claim as one invoking his right to fundamental fairness.

       In their respective appellate briefs, neither party to this appeal has provided a standard of review applicable to an alleged violation of the right to fundamental fairness in the administrative proceeding. The decisions addressing such a claim do not expressly state the applicable standard of review. See, e.g., Grimes v. Conservation Commission, 243 Conn. 266, 703 A.2d 101 (1997); Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 355 A.2d 21 (1974); Daniel v. Zoning Commission, 35 Conn. App. 594, 645 A.2d 1022 (1994); Norooz v. Inland Wetlands Agency, 26 Conn. App. 564, 602 A.2d 613 (1992); Brookfield Plaza Ltd. Partnership v. Zoning Commission, 21 Conn. App. 489, 574 A.2d 825 (1990). At the same time, the substance of those decisions indicates that the court’s review in each instance was plenary.

       We neither condone nor encourage the practice of permitting a party to an administrative appeal, even one that provides technical or professional assistance, to participate in the deliberations of an administrative agency. Even if that participation ultimately is harmless, it raises the specter of impropriety. For that reason, the prudent course is to prohibit all parties to an administrative appeal from appearing at an agency’s executive session.