author: O’Connell, J.

text:
    John Miller et al. v. Rose M. Bourgoin et al.
    (10005)
    O’Connell, Landau and Freedman, Js.
    Argued January 22
    decision released August 4, 1992

      Alexander Scheirer, for the appellants (defendants).

      Annemarie E. Bushka, with whom, on the brief, was Charles F. Brower, for the appellees (plaintiffs).
   O’Connell, J.

The defendants appeal from the trial court’s decision rendering summary judgment in the plaintiffs’ favor on both the complaint and the defendants’ counterclaim. The appeal arises from an alleged breach of a written contract for the construction and sale of a house.

The defendants’ first four claims are subsumed under the claim that the trial court improperly granted the plaintiffs’ motion for summary judgment on the complaint because there were material factual issues to be determined. The defendants’ fifth claim is that the trial court improperly granted summary judgment on the counterclaim because it was not before the court and because there were material factual issues to be determined. We reverse the judgment on the complaint and the counterclaim.

The following facts are relevant to the appeal. The plaintiffs were prospective buyers of a building lot and house to be constructed by the defendants. The parties’ original written contract specified a closing date of September 12, 1989. The plaintiffs paid a $16,000 deposit toward the purchase price of $190,000 with the balance to be paid at the closing.

In July, 1989, in connection with the installation of the septic leaching fields, the defendants had the property resurveyed and discovered that the foundation extended several feet over the approved building line. The defendants attempted to remedy the problem by applying for a zoning variance. The application was denied in early September and the defendants were forced to reposition the foundation, thereby incurring a delay.

Recognizing that the house would not be completed by September 12, the parties agreed to postpone the closing date to October 31, 1989. Thereafter, the defendants requested, and the plaintiffs granted, five further extensions of time for the defendants to perform the contract. Three of those extensions were granted after the plaintiffs had unilaterally notified the defendants that time was of the essence.

The final agreed upon closing date was January 2, 1990, subject to the issuance of a certificate of occupancy and a final inspection by the plaintiffs’ mortgage lender, which was to take place on December 29,1989. On the morning of December 29, the mortgage lender inspected the premises and notified the plaintiffs that the house was not sufficiently complete to allow a January 2,1990 closing. Later that day, the plaintiffs communicated to the defendants, both orally and in writing, that they were terminating the contract on the ground that the defendants had breached the contract by failing to complete the house in a timely manner. The plaintiffs further demanded the return of their $16,000 deposit. On January 4,1990, five days after the notification of termination and two days following the scheduled closing date, the town building inspector issued a certificate of occupancy for the house. The defendants ultimately sold the house to a third party in June of 1990 for a figure substantially less than the contract price.

The plaintiffs brought this action, in two counts, to recover their deposit. The first count alleged that the defendants breached the contract by failing to have the premises completed by December 29, 1989. The second count alleged that the actions of the defendants “constituted unfair, immoral, unethical, oppressive and unscrupulous business practices” in violation of General Statutes § 42-110b of the Connecticut Unfair Trade Practices Act (CUTPA).

The defendants’ answer raised special defenses concerning waiver and estoppel, substantial performance, fraudulent representation, setoff, and the nonapplicability of CUTPA. The defendants additionally filed a counterclaim in two counts to recover the difference between the contract price and the actual selling price. The plaintiffs’ answer to the counterclaim raised seven special defenses to each count.

After the pleadings were closed, the plaintiffs filed a motion for summary judgment on the complaint, supported by four affidavits, a deposition and answers to interrogatories. In opposition, the defendants offered three counter affidavits and two depositions.

The trial court granted the plaintiffs’ motion for summary judgment and, in response to the defendants’ motion for articulation, clarified that it had also granted summary judgment for the plaintiffs on the counterclaim. This appeal followed.

I

The defendants’ first four claims, taken together, contend that the trial court improperly granted the plaintiffs’ motion for summary judgment on the complaint because there were material factual issues to be determined.

Practice Book § 384 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Further, “[tjhe party seeking summary judgment bears the burden of showing the nonexistence of any material fact, which is any fact that will make a difference in the result of a case.” Bassin v. Stamford, 26 Conn. App. 534, 537, 602 A.2d 1044 (1992).

“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.” (Citations omitted; internal quotation marks omitted.) Connell v. Colwell, 214 Conn. 242, 246, 571 A.2d 116 (1990). It is axiomatic that “[i]n order to oppose successfully a motion for summary judgment, the opposing party must recite facts . . . which contradict those offered by the moving party.” (Internal quotation marks omitted.) Citizens National Bank v. Hubney, 182 Conn. 310, 312, 438 A.2d 430 (1980). “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party.” Connell v. Colwell, supra, 246-47. Moreover, “[i]n ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist.” Lomangino v. LaChance Farms, Inc., 17 Conn. App. 436, 438, 553 A.2d 197 (1989).

Among the issues claimed to require a factual determination is the question of whether the contract had been substantially performed on December 29, 1989, the date on which the plaintiffs terminated the contract.

The parties generally agree on the status of the house on the morning of December 29,1989. When the mortgage lender’s inspector arrived that morning, there were no contractors on the site. The house still lacked several items including a sewage-waste permit, a railing on the front porch, a completed garage floor, floor coverings, and bathroom fixtures. The defendants claim, however, that the inspection was conducted before the agreed upon time. Had the inspection taken place at the proper time, they argue, the inspector would have seen that the required work was being done. The defendants also submitted an affidavit and deposition as evidence that much of the work was completed by the end of the day. In contrast, the plaintiffs contend that the house could not have been substantially complete either on December 29,1989, or on the closing date of January 2, 1990, because the town building inspector declined to issue a certificate of occupancy until January 4, 1990.

The determination of “[wjhether a building contract has been substantially performed is ordinarily a question of fact for the trier to determine.” Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 472, 542 A.2d 692 (1988); Argentinis v. Gould, 23 Conn. App. 9, 14, 579 A.2d 1078 (1990), rev’d in part, 219 Conn. 151, 592 A.2d 378 (1991). The analysis necessarily involves an inquiry into the totality of facts and circumstances surrounding the performance of the contract. See 2 E. Farnsworth, Contracts § 8.12.

Although the issuance of a certificate of occupancy may be evidence of substantial performance, it is not dispositive of the question. See, e.g., Argentinis v. Gould, supra. Other factors to be considered include the extent to which the injured party will be deprived of the benefit reasonably expected, the extent to which that party can be adequately compensated for the deficiency of performance, the extent to which the performing party will suffer forfeiture, the likelihood that the performing party will cure his failure in light of the circumstances and his reasonable assurances, and the extent of good faith and fair dealing on the part of the performing party. See 2 Restatement (Second), Contracts § 237 comment d, and § 241; see also Vincenzi v. Cerro, 186 Conn. 612, 616, 442 A.2d 1352 (1982).

In light of these factual considerations, our review of the record satisfies us that the plaintiffs had not met their burden of showing the absence of any genuine issues of material fact regarding substantial performance. Genuine issues remained, for example, concerning the extent to which the status of the house conformed to the contract and the reasonable expectations of the plaintiffs on December 29, 1989, and January 2, 1990.

Genuine issues also remained regarding the good faith and fair dealing of the defendants. This element of the substantial performance inquiry was placed in issue by the plaintiffs’ allegations of misrepresentation on the part of the defendants. The defendants claimed, however, to have applied their best efforts, both to keep the plaintiffs informed of the progress of the house and to complete the house within the allotted time. In support of those claims, the defendants submitted affidavits that detailed the history of the construction of the house and the relationship of the parties. Additionally, the defendants alleged, by special defense, that the plaintiffs had fraudulently misrepresented their intention to purchase the house.

Allegations such as misrepresentation and fraud present issues of fact. Maturo v. Gerard, 196 Conn. 584, 587, 494 A.2d 1199 (1985). Moreover, “[w]hether evidence supports a claim of fraudulent or negligent misrepresentation is a question of fact.” McClintock v. Rivard, 219 Conn. 417, 427, 593 A.2d 1375 (1991). “It is . . . well recognized that summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions .... It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given to their testimony can be appraised.” (Citations omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 376, 260 A.2d 596 (1969). Nevertheless, it remains “incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined as a matter of law, that a genuine issue of material fact exists.” Connell v. Colwell, supra, 251. In the present case, the record reveals that the defendants had established an adequate factual predicate to demonstrate the existence of a genuine issue of material fact concerning their good faith and fair dealing.

Another issue was the question of whether time was of the essence. Generally, “[wjhere a time for performance is stated in an agreement, a party’s tender of performance within a reasonable time thereafter will be considered substantial performance unless the parties intend that time for performance be of the essence.” Mihalyak v. Mihalyak, 11 Conn. App. 610, 616, 529 A.2d 213 (1987). Because delays are typical in transactions involving real property or building contracts, time is ordinarily not of the essence in these contracts. 6 S. Williston, Contracts (3d Ed.) §§ 849, 852; 3A A. Corbin, Contracts § 720. The resolution of whether it is part of the contract involves a “question of the intent of the parties, to be determined, as a matter of fact, from the language of the contract, the circumstances attending its negotiation, and the conduct of the parties in relation thereto.” Kakalik v. Bernardo, 184 Conn. 386, 393, 439 A.2d 1016 (1981).

Where “a definite date for performance is specified in the agreement, but performance on time is not of the essence, either party has power to make on that date or on some subsequent date performance essential and a condition of his own duty by giving notice to that effect, provided that the notice leaves a reasonable time for rendering the performance.” 3A A. Corbin, Contracts § 723, p. 383; see also Fullerton v. McGowan, 6 Conn. App. 624, 629, 507 A.2d 473 (1986). The reasonableness of the time demanded “depends upon the character of the performance promised and upon all of the surrounding circumstances that the parties know or have reason to know.” 3A A. Corbin, Contracts § 723, p. 384.

In the present case, the plaintiffs notified the defendants by letter dated November 27,1989, that time was of the essence and that the closing must take place on December 12, 1989. Thereafter, the plaintiffs agreed to postpone the closing date three more times and, according to the defendants, made no further mention that time was of the essence. Consequently, the record demonstrates that there were unresolved genuine issues of material fact regarding the validity and effect of the plaintiffs’ notification as well as the reasonableness of the various times set for performance.

Accordingly, in view of the genuine issues of material fact yet to be determined, we hold that the trial court improperly granted the plaintiffs’ motion for summary judgment on the complaint.

II

The defendants next assert that the trial court improperly granted summary judgment on the defendants’ counterclaim on the basis that no motion seeking summary judgment on the counterclaim was before the court. Cummings & Lockwood v. Gray, 26 Conn. App. 293, 299, 600 A.2d 1040 (1991), which was decided after the briefs had been filed in this appeal, is dispositive of the issue.

The plaintiffs’ motion for summary judgment was directed solely to the complaint. Neither party had filed a motion for summary judgment on the counterclaim, and neither party had notice that the counterclaim was at issue. In that situation, “[a] court may not grant summary judgment suasponte. . . . The issue first must be raised by the motion of a party and supported by affidavits, documents or other forms of proof. Booth v. Flanagan, [19 Conn. App. 413, 415, 562 A.2d 592 (1989)]. Further, ‘any party may move for summary judgment upon any counterclaim . . . as if it were an independent action.’ Practice Book § 379. Because a counterclaim is a separate and distinct action; Practice Book § 379; Home Oil Co. v. Todd, 195 Conn. 333, 341, 487 A.2d 1095 (1985); a party seeking summary judgment on both a complaint and a counterclaim must file an appropriate motion addressed to each. See Practice Book § 379.” (Citations omitted.) Cummings & Lockwood v. Gray, supra.

Accordingly, the trial court was without authority to grant summary judgment on the counterclaim. Id., 299-300.

The judgment on the complaint and on the counterclaim is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       The defendants stated the issues as follows:
      “1. Did the Court err in finding as a matter of law that the defendants-appellants had ‘failed to state facts sufficient to support a finding that a genuine issue of material fact exists and that the plaintiffs are not entitled to summary judgment as a matter of law’?
      “2. Did the Court err in finding that the defendants’ submission of documents failed to establish the existence of a genuine issue of material fact?
      “3. Did the Court err as a matter of law in concluding that no genuine issue of fact existed?
      “4. Did the Court err as a matter of law in entering summary judgment [on] the plaintiffs’ Motion for Summary Judgment?
      “5. Did the Court err as a matter of law in entering summary judgment for plaintiffs on the Counterclaim of defendants-appellees?”


source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    Thomas A. Vicino et al. v. Zoning Board of Appeals of the Town of Westbrook
    (10645)
    Heiman, Freedman and Cretella, Js.

      Argued May 7
    decision released August 4, 1992

      Gerald S. Sack, with whom, on the brief, was Michael J. Lefebvre, for the appellant (defendant).

      William A. Childress, for the appellees (plaintiffs).
   Heiman, J.

The defendant Westbrook zoning board of appeals appeals from the trial court’s judgment sustaining the plaintiffs’ appeal from the denial by the zoning board of appeals of their application for a certificate of approval for the location of an automobile repair shop.

The defendant asserts that the trial court (1) incorrectly interpreted the statutory role of the zoning board of appeals in considering the plaintiffs’ application and (2) improperly substituted its judgment for that of the zoning board of appeals. We affirm the trial court’s judgment.

The following undisputed facts are necessary to resolve this appeal. The plaintiffs, Thomas A. and James A. Vicino, own a vacant parcel of land located on the Boston Post Road in Westbrook. This property is located in a district zoned for commercial use. The construction of a building as a “public garage or automobile sales agency” is a permitted use in commercial districts in Westbrook. Westbrook Zoning Regulations, Article VIII, § 800 (6). A public garage is defined in the Westbrook zoning regulations as “[a] building, not a private garage, used for the repair, servicing, or storage of motor vehicles.” Westbrook Zoning Regulations, Article I, § 101 (12).

On November 21,1989, the plaintiffs filed an application with the Westbrook zoning commission for site plan approval for the proposed use of a public garage on their property. On April 9, 1990, the zoning commission granted the application unanimously, with the sole condition that the plaintiffs agree that there be no overnight parking or outside storage of vehicles.

On May 25, 1990, the plaintiffs filed an application with the zoning board of appeals for a certificate of approval for the location of a motor vehicle repair shop on their property. See General Statutes § 14-54. The zoning board of appeals held a public hearing on the application on June 27, 1990.

At the hearing, the plaintiffs introduced expert testimony and documents regarding their proposed use of the property. They offered expert testimony that the proposal would not create any adverse environmental impact, nuisance from dust, noise levels higher than conversational levels or excessive vibrations to the ground outside of the shop. Their expert concluded that there would be no negative impact on any of the abutting property owners. The plaintiffs also produced a letter from the department of transportation authorizing the issuance of a driveway permit. The plaintiffs then offered the testimony of a traffic engineer that the road at the proposed site is thirty feet wide with one travel lane in each direction, that the sight lines are safe and ample, that for the anticipated type of traffic the width and radii of the driveway are adequate and that the use of the site would generate only a small amount of additional traffic. He further testified that the nearest school is 900 to 1000 feet east of the site on the opposite side of the road, that the nearest church is over one-half mile away and that there are no theaters within one mile of the site. Two auto dealerships, one of which had gone out of business at the time of the hearing, were located across the street from the proposed site.

At the hearing, local residents spoke in opposition to the application. Although they questioned the qualifications and credentials of the plaintiffs’ experts, they did not introduce any expert testimony of their own.

On July 11, 1990, the zoning board of appeals announced its decision denying the plaintiffs’ application. It based its denial on: (1) the disparity between the proposed use and the town’s master plan of development; (2) the proximity of the site to a school; and (3) the proximity of the site to a densely populated residential area.

The plaintiffs appealed the zoning board of appeals’ decision to the Superior Court. On August 1,1991, the trial court, finding that the denial of the plaintiffs’ application was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record, sustained the appeal and ordered that the plaintiffs’ application be granted. This appeal followed.

I

The zoning board of appeals first claims that the trial court incorrectly interpreted the role of the zoning board of appeals under General Statutes §§ 14-54 and 14-55. Specifically, it claims that the trial court equated a “permitted activity” under the Westbrook zoning regulations with the suitability of a proposed location under General Statutes § 14-55. We disagree.

When considering the plaintiffs’ application for approval of a certificate of location for its motor vehicle repair facility, the zoning board of appeals acted as a special agent of the state. Mason v. Board of Zoning Appeals, 143 Conn. 634, 637, 124 A.2d 920 (1956); see also New Haven College, Inc. v. Zoning Board of Appeals, 154 Conn. 540, 542, 227 A.2d 427 (1967) (zoning board of appeals acts as a special agent of the state when considering a certificate of approval for location of a gasoline station under General Statutes § 14-322). When receiving, hearing and eventually deciding whether to grant the application, the zoning board of appeals does not act pursuant to either the municipal zoning ordinance or the zoning statutes. Mason v. Board of Zoning Appeals, supra. Thus, the zoning board of appeals does not act as the “voice of the people,” as it claims. Rather, it acts in a special capacity, serving as the local agency “named by the General Assembly to determine whether a certificate of approval should be issued” for a motor vehicle repair facility. Id.

As an agent of the state, the zoning board of appeals must follow the statutory criteria in determining whether to issue the certificate of approval. Id. General Statutes § 14-55 sets forth the criteria to be followed by an agency when making its decision. The zoning board of appeals cannot grant a certificate until the application “has been approved and such location has been found suitable for the business intended, with due consideration to its location in reference to schools, churches, theaters, traffic conditions, width of highway, and effect on public travel. ...” General Statutes § 14-55.

Because the zoning board of appeals acts as a special agent of the state in issuing certificates of approval, the trial court’s scope of review of the zoning board of appeals’ decision is governed by the Uniform Administrative Procedure Act, General Statutes § 4-183 (j) (5). See New Haven College, Inc. v. Zoning Board of Appeals, supra, 543-44. General Statutes § 4-183 (j) (5) mandates that the trial court “shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are . . . clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.” An administrative agency can find that substantial evidence exists if “the administrative record affords a substantial basis of fact for which the fact in issue can be reasonably inferred.” (Internal quotation marks omitted.) Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 601, 590 A.2d 447 (1991). Substantial evidence exists when the evidence is sufficient for a trial court to deny a directed verdict if the trial had been brought before a jury to decide a question of fact. Lawrence v. Kozlowski, 171 Conn. 705, 713, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977); Tanner v. Conservation Commission, 15 Conn. App. 336, 339, 544 A.2d 258 (1988).

The zoning board of appeals argues that the trial court apparently considered a permitted activity under the zoning regulations to be the same as a finding of suitability of the proposed location under General Statutes § 14-55. The zoning board of appeals misinterprets the trial court’s decision. The trial court made only a passing reference to the fact that the plaintiffs’ proposed use is a permitted activity in this district. The trial court, in its memorandum of decision, reviewed the evidence presented at the zoning board of appeals hearing, applied the appropriate standard of review and concluded that the appeal should be sustained. The trial court’s review and findings fully met the requirements of General Statutes § 4-183 (j) (5).

II

The zoning board of appeals next claims that the trial court improperly substituted its judgment for that of the zoning board of appeals. We disagree.

When reviewing the trial court’s decision, we seek to determine whether it comports with the Uniform Administrative Procedure Act. Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986). We look to see if the court reviewing the administrative agency acted unreasonably, illegally, or in abuse of discretion. Id. We conclude that the trial court did not act in such a way. Rather, it properly determined that there was no reliable, probative, or substantial evidence on the record to justify denying the plaintiffs’ application.

We already have noted that the trial court’s scope of review is statutorily limited. See General Statutes § 4-183 (j) (5). Its function is not to retry the case or to substitute its judgment for that of the agency; Connecticut Light & Power Co. v. Department of Public Utility Control, 219 Conn. 51, 57, 591 A.2d 1231 (1991); but to determine whether the judgment is based on reliable, probative, and substantial evidence on the whole record. See General Statutes § 4-183 (j) (5).

The zoning board of appeals articulated three reasons for denying the application: (1) the project’s being contrary to the town’s master plan of development; (2) the proximity of the site to the school; and (3) the proximity of the site to a densely populated residential area. The trial court properly held that the first and third reasons were not relevant to the statutory criteria of suitability because neither is included in the statutory criteria to be considered by a zoning board of appeals in deciding whether to grant a certificate of approval for the location of a motor vehicle repair facility.

The trial court properly evaluated the substantial evidence test in regard to the statutory criteria of suitability dealing with the proximity of the site to schools. Unlike the two other reasons articulated by the zoning board of appeals, the proximity of a school to the site is one of the statutory criteria that must be addressed in determining suitability of the site for the proposed use as a repair facility. Relying on Torsiello v. Zoning Board of Appeals, 3 Conn. App. 47, 50, 484 A.2d 483 (1984), the zoning board of appeals claims that it was within the province of its members to use knowledge acquired by their personal observation of the site. Even if the zoning board of appeals is correct, however, it cannot prevail. A site’s mere proximity to a school is insufficient to support a denial of an application for a certificate of approval. Rather, § 14-55 requires some evidence on which a zoning board of appeals reasonably may conclude that the proximity to a school impacts adversely on the site’s suitability for the proposed use. Here, the record contains no evidence indicating that the proximity of the site to a school rendered the site unsuitable for use as an automobile repair facility. The zoning board of appeals was not entitled to rely on the site’s proximity to a school as a basis for denying the application.

As a result, the trial court appropriately rejected each of the three reasons advanced by the zoning board of appeals in support of its denial of the plaintiffs’ application and found no reliable, probative and substantial evidence on the whole of the record to support the defendant’s decision.

The judgment is affirmed.

In this opinion the other judges concurred.

       A residential area that is in proximity to the site is located in the same commercial zoning district.

       General Statutes § 14-54 provides in pertinent part: “Any person who desires to obtain a license for dealing in or repairing motor vehicles shall first obtain and present to the commissioner a certificate of approval of the location for which such license is desired from the selectmen . . . wherein the business is located or is proposed to be located, except in any city or town having a zoning commission and a board of appeals, in which case such certificate shall be obtained from the board of appeals. ...”

       The defendant earlier had granted approval for automotive uses for these businesses. They were granted on October 26,1988, and December 27,1989. The facilities are located on the same side of the street as the school.

       General Statutes § 14-55 provides in pertinent part: “No such certificate shall be issued until the application has been approved and such location has been found suitable for the business intended, with due consideration to its location in reference to schools, churches, theaters, traffic conditions, width of highway and effect on public travel. . . .”

       The trial court stated in its memorandum of decision that there was a “total absence of any real evidence that this type of business was not suitable for this location. Although individuals opposed the application, their opposition appears to be based on their personal opinion of the suitability of this type of business in their neighborhood. It is impossible to determine what standards they used in forming their opinions. It should be noted once again that this is a permitted activity, within this particular zone and public opposition based on personal interest is not a stated criteria enumerated in General Statutes § 14-55 . . . .”


author: Norcott, J.

text:
    State of Connecticut v. Matthew MacNeil
    (10570)
    Dupont, C. J., Daly and Norcott, Js.

      Argued June 2
    decision released August 11, 1992

      Thomas P. Cody and Bonnie R. Vairo, special public defenders, with whom, on the brief, was Sally S. King, special public defender, for the appellant (defendant).

      Rita M. Shair, assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and Timothy J. Liston, senior assistant state’s attorney, for the appellee (state).
   Norcott, J.

The defendant challenges the trial court’s denial of his motion to suppress cocaine and drug related paraphernalia seized during a warrantless search of his sister’s house. After the court denied the motion, the defendant entered a conditional plea of nolo contendere, pursuant to General Statutes § 54-94a, to the charge of possession of cocaine with intent to sell in violation of General Statutes § 2 la-277 (a). He was sentenced to a term of fifteen years imprisonment, suspended after ten years, and five years probation.

The defendant claims that the trial court improperly denied the suppression motion because the police (1) entered his sister’s house without her consent, (2) conducted an unconstitutional search of a shopping bag containing his clothes, and (3) improperly seized evidence pursuant to the plain view doctrine. We affirm the judgment of the trial court.

The trial court relied on the following facts. On the morning of July 30,1989, state police received a report that someone was in a wooded area behind a house in Killingworth, calling out for help. Trooper William Logiodice investigated and learned that Andy Peoples, who lived in the residence, had given an individual he knew as Matt a ride to Haddam. Peoples said that during the ride Matt had stated that his “father would kill [him] if he saw [him] like this,” and had asked to be driven to his sister’s house.

Logiodice then discussed what he had learned with Troopers Thomas Murray and Joseph Delehanty. On the basis of this information and other factors known to Murray, he suspected that the person known as Matt was Matthew MacNeil, the defendant, whom he had known for about a year and who he suspected was a narcotics user. Thereafter, the three troopers went with Trooper David Brundage to an address in the Higganum section of Haddam, which they believed to be the residence of the defendant’s sister, in order to investigate further.

When the troopers arrived, Murray knocked at the door and was met by the defendant’s sister, Alanna Wheeler, an owner of the house. He told her there may be a problem with the defendant and asked to see him. Wheeler said she would check to see if he could do so and went back into the house while Murray waited at the door. While there, Wheeler’s son came to the door and said that the defendant was lying on a couch inside. Wheeler then returned and led Murray into the living-room, where the defendant was asleep on a couch, clad only in a tee shirt and underwear.

Shortly thereafter, when the defendant awoke, he began shaking. His arms and legs were thrashing about, and he looked sick, confused and frightened. Wheeler, who had never seen him in this condition before, agreed with Murray that an ambulance should be summoned. She then began discussing the defendant’s clothes with Murray and handed him a shopping bag that contained them. When Murray reached in and pulled out the defendant’s pants, a large packet of cocaine fell to the floor. Murray seized the shopping bag, along with the cocaine, some plastic bags and a brown paper bag. Thereafter, he obtained Wheeler’s written consent to search the rest of the house. Other drug related items were found, including a scale used in the preparation of illicit narcotics.

The defendant filed a motion to suppress in which he claimed that the warrantless search and seizure of his personal belongings violated his rights under the fourth and fourteenth amendments to the United States constitution, and article first, § 7, of our state constitution. In its memorandum of decision, the trial court found that the troopers had entered the Wheeler house with the owner’s consent, that no search of the shopping bag had occurred and that the subsequent search of the house had been conducted with the owner’s consent. The defendant entered a plea of nolo contendere, conditioned on his right to take an appeal.

I

The defendant first claims that his suppression motion should have been granted because the police entered his sister’s house without her consent. We disagree.

As a threshold matter, we must set forth the appropriate standards under which we review a trial court’s denial of a suppression motion. The court’s conclusions will not be disturbed “ ‘unless they are legally and logically inconsistent with the facts.’ ” State v. Cofield, 220 Conn. 38, 44, 595 A.2d 1349 (1991). Its factual findings will be reversed only if they are clearly erroneous. State v. Jones, 193 Conn. 70, 79-80, 475 A.2d 1087 (1984); State v. Zindros, 189 Conn. 228, 244, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984). This involves a two part procedure. First, where the court’s legal conclusions are challenged, we must decide if they are legally and logically correct, and if they are supported by the facts set forth in the memorandum of decision. State v. Zindros, supra, 238. Second, if the factual basis of the court’s decision is challenged, we must determine whether the facts in the memorandum are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. Id.

In our resolution of this matter, we remain ever mindful that “[o]ne of the most fundamental propositions of our criminal jurisprudence”; State v. Harris, 10 Conn. App. 217, 222, 522 A.2d 323 (1987); is that “searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); State v. Guertin, 190 Conn. 440, 446, 461 A.2d 963 (1983). A warrantless search or entry into a house is not unreasonable, however, under the fourth amendment to the United States constitution or article first, § 7, of the Connecticut constitution when a person with authority to do so has freely consented. State v. Reagan, 209 Conn. 1, 7, 546 A.2d 839 (1988). It is the state’s burden to prove that the consent was freely and voluntarily given, and that the person who purported to consent had the authority to do so. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968); State v. Reagan, supra. Such consent may not be established by mere acquiescence to police authority. State v. Jones, supra, 79.

Moreover, whether consent was freely and voluntarily given, or was the product of coercion, express or implied, is “ ‘a question of fact to be determined from the totality of all the circumstances.’ ” State v. Reagan, supra, 7-8, quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). It is to be decided by the trial court on the basis of the evidence before it that it finds credible, along with the reasonable inferences that may be drawn from that evidence. State v. Reagan, supra, 8; Dotson v. Warden, 175 Conn. 614, 619, 402 A.2d 790 (1978). The ultimate question “is whether the will of the consenting individual was overborne, or whether the consent was his unconstrained choice.” State v. Cobbs, 7 Conn. App. 656, 659, 510 A.2d 213 (1986).

In this case, the trial court credited the testimony of Murray in finding that Wheeler freely and voluntarily allowed the police into the residence, and that she was not coerced and did not acquiesce to Murray’s authority as a state trooper. Although the defendant argues that the testimony of Wheeler and Michael MacNeil, the defendant’s brother, supports his claim that no consent was given and that Wheeler felt intimidated by Murray, we are mindful, as we must be, that where there is conflicting testimony, it is uniquely the function of the trier of facts to weigh the evidence and assess the credibility of witnesses. State v. Blevins, 13 Conn. App. 413, 417, 536 A.2d 1002 (1988). After careful review of the record, we cannot conclude that it was clearly erroneous for the trial court to conclude that Wheeler consented to the police entry into her house.

II

The defendant next claims that the trial court should have found that the police conducted an unconstitutional search of the shopping bag that contained his clothes. We disagree.

At the outset, we note that, while it is not this court’s function to find facts; State v. Reagan, supra; since the defendant challenges the trial court’s factual and legal conclusions, we may look not only to the facts set forth in its memorandum of decision to see if they are legally and logically correct, but to the evidence in the whole record to see if those facts are clearly erroneous. State v. Zindros, supra, 238. We also may resort to the evidence produced in support of the court’s ruling on a suppression motion when, as here, the court does not make detailed factual findings to support its decision. State v. Martin, 2 Conn. App. 605, 614, 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).

Our review of the record discloses the following undisputed facts relative to this issue. At about 8 a.m., Logiodice was dispatched to investigate the complaint at the Peoples’ residence. Later that morning, after discussing with Murray and Delehanty what he had learned from Andy Peoples, the three troopers, along with Brundage, gathered for breakfast at a restaurant in the Killingworth section of Haddam. The troopers agreed that the description Logiodice had been given fit that of the defendant and that the defendant had a reputation for narcotics involvement. Murray had known the defendant for about a year and had arrested him at least once. Murray recalled having been told by an informer six days earlier that the defendant was rumored to possess a kilo, a little more than two pounds, of cocaine. Murray also suspected the defendant of being involved with John Mann, a suspected narcotics trafficker in the Middlesex County area. At this time, the troopers did not believe there was any emergency concerning the defendant’s health.

After leaving the restaurant, the four uniformed troopers drove in separate police cars to the Wheeler house. Logiodice had with him an assigned canine trained in drug detection. En route, Logiodice and Murray stopped at a gasoline station and used a pay telephone to report their whereabouts to their barracks. Murray did not believe that any emergency existed at this time. When the troopers arrived at the Wheeler house sometime between 10 and 11 a.m., the defendant was asleep on a couch in the living room, wearing only a tee shirt and underwear. The night before, he had put his belongings, including his pants, in a shopping bag, which he placed beside the couch before going to sleep.

When Murray got out of his car, he encountered the defendant’s brother, who refused to let him inside because the house belonged to his sister and brother-in-law. Michael went inside and informed Alanna Wheeler of the situation. WTieeler, who had been asleep, put on a robe and went to the door, where she encountered Murray. He and Logiodice had gone to the side door of the house while Delehanty and Brundage waited outside. When Murray asked if he could see the defendant, Wheeler asked that he wait while she went to check with the defendant. Wheeler then went into the living room, where she straightened up various items and put the shopping bag containing the defendant’s pants in a closet.

Inside the house, Murray and Logiodice tried to awaken the defendant. Shortly thereafter, Logiodice left to go outside to secure his dog while Wheeler and Murray continued talking. After Wheeler agreed with Murray that medical help should be summoned, she suggested that the defendant should have a pair of pants to wear to the hospital. Murray asked Wheeler if the defendant had any clothes. Wheeler took the shopping bag containing the defendant’s pants from the closet and handed it to Murray. On direct examination, Murray testified that “[a]t the time, I was not thinking about finding any narcotics in the bag. I was merely reaching in to take out Matt’s pants so they could go with him to the hospital.”

In its memorandum of decision, the trial court determined that the taking of the pants from the shopping bag did not constitute a search. The court found that the information the troopers had may have led them to believe the defendant might have been acting erratically at the Peoples’ residence because of drugs he had taken, but that they had little reason to believe he was engaged in any illegal conduct in his sister’s house. The court also found that when Murray reached into the shopping bag, he had no reason to believe it contained anything but the defendant’s pants, and that his only purpose in reaching into it was to get the pants.

Our Supreme Court has stated that searches within the meaning of the fourth and fourteenth amendments “are those that arise during the course of the policeman’s function of detecting and combating criminality in the community, and . . . only 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’ .... ‘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.” (Citations omitted.) State v. Tully, 166 Conn. 126, 131, 348 A.2d 603 (1974).

In applying these principles, we are mindful of the United States Supreme Court’s admonition against attributing “ ‘too much significance to an overly technical definition of “search.” ’ ” Id., 133. Although it is unquestioned that the defendant had a legitimate expectation of privacy in the shopping bag; see State v. Mooney, 218 Conn. 85, 113, 588 A.2d 145, cert. denied, U.S. , 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991) (privacy expectation in cardboard box and duffel bag); State v. Edwards, 214 Conn. 57, 75, 570 A.2d 193 (1990) (backpack); State v. Callari, 194 Conn. 18, 24, 478 A.2d 592 (1984), cert. denied, 469 U.S. 1210, 105 S. Ct. 1178, 84 L. Ed. 2d 327 (1985) (suitcase); State v. Collins, 150 Conn. 488, 492-93, 191 A.2d 253 (1963) (small canvas bag); our own painstaking review of the record nevertheless leads us to conclude that under the circumstances of this case, the trial court correctly determined that the taking of the pants from the bag did not constitute a search.

Although the defendant argues forcefully that the troopers’ conduct discloses that their professed concern for his health was in fact a subterfuge to conceal their intention to search for incriminating evidence, we are unpersuaded. The defendant points to Murray’s awareness of the informer’s tip, the troopers’ suspicions of his drug involvement and the fact that they stopped for breakfast before checking on his condition. He argues that had the troopers been concerned about his health, they would not have brought a dog trained in drug detection and parked their police cars in a strategic manner designed to block off the Wheeler house. Finally, the defendant points to Murray’s questioning of him and Wheeler about John Mann as further indication of pretext, and claims that before Murray took the pants out of the bag, he first took out the defendant’s wallet and searched it.

These arguments, however, rely wholly on testimonial evidence, which, as stated previously, is within the purview of the trial court to credit or to disregard. State v. Blevins, supra. Although the court recognized that the troopers previously had investigated criminal activity involving the defendant and suspected that he was a narcotics user, it did not find that they came to the Wheeler residence with the intention of discovering evidence of criminal activity or engaging in an exploratory investigation. Thus, the court chose to credit the testimony of the troopers rather than that of the defendant’s witnesses in arriving at its factual findings. On the basis of our review of the record, we cannot conclude that these findings are clearly erroneous.

Ill

The defendant’s final claim, raised for the first time on appeal, is that the trial court failed to find that the police improperly seized the cocaine pursuant to article first, § 7, of our state constitution. We disagree.

At the outset, we note that, although this claim was not raised at the suppression hearing, review is warranted under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), as refined by State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), because it is of constitutional magnitude in that it alleges a violation of a fundamental right.

The essence of the defendant’s claim is that because the troopers discovered the cocaine as a result of a planned search, the trial court improperly determined that it was discovered inadvertently, within the plain view exception to the fourth amendment’s warrant requirement. The defendant argues that since the United States Supreme Court has recently determined that the fourth amendment does not require that evidence seized in plain view be discovered inadvertently; see Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990); this court should find that inadvertent discovery is required by article first, § 7, of our state constitution.

In its memorandum of decision, the trial court relied on State v. Hamilton, 214 Conn. 692, 573 A.2d 1197, vacated and remanded, 498 U.S. 933, 111 S. Ct. 334, 112 L. Ed. 2d 299 (1990), in determining that seizure of the cocaine was proper because the troopers were on the premises lawfully, discovered the narcotic inadvertently and had probable cause to believe that a reasonable relationship existed between the evidence seized and the defendant’s conduct. Although we agree with the defendant that the trial court improperly relied on State v. Hamilton, supra, we conclude that the result it reached nevertheless was proper under our state constitution.

Prior to Hamilton, the Connecticut Supreme Court repeatedly applied the inadvertence limitation as an element of the plain view doctrine. See State v. Reddick, 207 Conn. 323, 335, 541 A.2d 1209 (1988); State v. Altrui, 188 Conn. 161, 179, 448 A.2d 837 (1982); State v. Graham, 186 Conn. 437, 443-44, 441 A.2d 857 (1982); State v. Federici, 179 Conn. 46, 56, 425 A.2d 916 (1979); State v. Watson, 165 Conn. 577, 587, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974); State v. Krause, 163 Conn. 76, 82-83, 301 A.2d 234 (1972). The court also held, however, that “inadvertence is not required if the items seized fall under the category of contraband, stolen property or objects dangerous in themselves.” State v. Couture, 194 Conn. 530, 547, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985); see State v. Ruscoe, 212 Conn. 223, 237 n.8, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990). Because the cocaine seized in this case constitutes contraband; see State v. Hamilton, supra, 701, citing State v. Ruscoe, supra, 238; the protection of our state constitution would be unavailing to the defendant even if we were to find that article first, § 7, requires an inadvertence limitation on the plain view doctrine. We conclude, therefore, that the trial court properly determined that seizure of the cocaine was not improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides in pertinent part: “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 evidence based on an unreasonable search or seizure . . . the defendant after the imposition of sentence may file an appeal within the time prescribed by law. 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 . . . .”

       General Statutes § 21a-277 (a) provides in pertinent part: “Any person who . . . possesses with the intent to sell or dispense ... to another person any controlled substance which is a hallucinogenic substance other than marihuana . . . for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       Article first, § 7, of the Connecticut constitution and the fourth amendment to the United States constitution use the same words and are read to mean the same thing. State v. Mariano, 152 Conn. 85, 95, 203 A.2d 305 (1964), cert. denied, 380 U.S. 943, 85 S. Ct. 1025, 13 L. Ed. 2d 962 (1965); State v. Grillo, 23 Conn. App. 50, 53 n.5, 578 A.2d 677 (1990).

       See footnote 1, supra.

       Murray also testified on direct examination that he asked for the clothes “[bjecause [the defendant] was going to the hospital in his underwear . . . I figured if you go to the hospital, you should have [your] clothes with you. Whether or not you have them on or not, you just take them with you.” On redirect, he again testified that “[i]t just seemed to be the thing to do at the time. The guy’s in his underwear. How’s he going to get home?”

       Under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), a defendant can prevail on such a claim “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.)

       The plain view doctrine, created by a plurality of the United States Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443, 464-73, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), “is based upon the premise that the police need not ignore incriminating evidence in plain view while they are operating within the parameters of a valid search warrant or are otherwise entitled to be in a position to view the items seized.” State v. Ruth, 181 Conn. 187, 193, 435 A.2d 3 (1980).


author: Foti, J.

text:
    State of Connecticut v. Edith Pearl
    (10034)
    Foti, Lavery and Cretella, Js.

      Argued April 2
    decision released August 11, 1992

      Richard R. Brown, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, was Patricia A. Swords, state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of larceny in the first degree in violation of General Statutes § 53a-122 (a) (2) and General Statutes § 53a-122 (a) (4), and second degree forgery in violation of General Statutes § 53a-139. The defendant claims that the trial court incorrectly (1) found sufficient evidence to sustain a guilty verdict on the two counts of first degree larceny, (2) found sufficient evidence to sustain a guilty verdict on the charge of forgery, and (3) admitted into evidence certain secondary documents in violation of the best evidence rule. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The defendant was employed as a scheduler at the Mansfield Training School, a state agency. As a scheduler, she was responsible for maintaining records of employees’ work history and attendance, including overtime, compensation time, sick leave, holidays, vacations, and personal leave, as well as keeping track of her own attendance. To keep track of employees’ attendance, the defendant listed their hours on time and attendance records which were then signed by her supervisor and thereafter kept on file in her office. The defendant then transcribed the information contained in these records onto biweekly time sheets (biweeklies) which she submitted to the payroll department. Payroll personnel then transferred the information contained in the biweeklies onto official payroll time cards and initialed the upper corner of each biweekly. Payroll personnel used the information copied from the biweeklies to calculate the amount of pay due to each employee according to the category of hours worked and the employee’s wage rate. Payroll personnel kept the payroll cards in their office and returned the biweeklies to the defendant after making photocopies of them. After she received the biweeklies from the payroll department, the defendant kept them on file in her office.

During the period of time from October 25,1985, to July 13, 1989, the defendant submitted biweeklies to the payroll department on which she inflated the actual number of hours she worked. After transcribing the numbers onto the payroll cards, the payroll department returned the biweeklies to the defendant. The defendant then either deleted the inflated hours from the biweeklies or substituted forged biweeklies so that the biweeklies on file in her office reflected only the hours actually worked. She then forged the initials of payroll personnel on the altered biweeklies.

During an investigation into the defendant’s conduct, the defendant’s biweeklies were recovered from her office. These documents revealed only a few hours of overtime in comparison to the payroll cards, which indicated that the defendant had been paid for many hours of overtime. Additionally, the defendant’s biweeklies contained numerous erasures and white-out markings. There were no similar erasures evident on the biweeklies of other employees, which were also on file in the defendant’s office. Additionally, the defendant had blank copies of biweeklies in her office.

Overall, the payroll cards and other documents indicated that the defendant had been paid for between 2800 and 2950 hours of overtime, totaling approximately $59,000, in four years. During some weeks, the defendant was paid for between forty and fifty hours of overtime. At trial, there was testimony that the defendant’s job did not require this amount of overtime. Furthermore, it was the policy of Mansfield Training School that all overtime hours be approved by the assistant director of the school. There was testimony that the defendant had received permission from her supervisor for only a few hours of overtime work during the four year period in question.

Several witnesses testified at trial that they had rarely seen the defendant work before or after her regular shift, which was from 7 a.m. until 3:30 p.m. Many of these witnesses also testified that during the times in question, they did not see the defendant’s car parked at the school. Furthermore, there was testimony that the defendant had stated to her supervisor that she always was able to complete her work within the normal work week and could not understand why other schedulers had difficulty doing so.

I

The defendant first claims that the evidence was insufficient to sustain a verdict of guilty of first degree larceny in violation of General Statutes § 53a-122 (a) (2) and (4). The defendant argues that the jury could not have reasonably concluded that she was guilty beyond a reasonable doubt, and that the state failed to prove beyond a reasonable doubt that she did not work the overtime hours she submitted to the payroll department on the biweeklies. The defendant emphasizes that none of the state’s witnesses could say definitively that she was not working during the times she claimed to have worked.

Our review of the record, however, leads us to reject the defendant’s arguments. Although the state’s case rested largely on circumstantial evidence, “there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned.” State v. Haddad, 189 Conn. 383, 390, 456 A.2d 316 (1983); State v. King, 216 Conn. 585, 602, 583 A.2d 896 (1990). “It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981). “When an appeal challenges the sufficiency of the evidence to justify a verdict of guilty, we have a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the verdict. . . . We then determine whether ‘ “the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” ’ ” (Citations omitted.) State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985); State v. Kennedy, 20 Conn. App. 354, 368, 567 A.2d 841 (1989), cert. denied, 215 Conn. 805, 573 A.2d 317 (1990). It is a well established principle that we, as a reviewing court, do not “ ‘sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.’ ” State v. Rodriquez, 200 Conn. 685, 693, 513 A.2d 71 (1986), quoting State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). We will not disturb the determination of the trier of fact if, viewing the evidence in the light most favorable to sustaining the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Edwards, 201 Conn. 125, 151, 513 A.2d 669 (1986); State v. Waterman, 7 Conn. App. 326, 338-39, 509 A.2d 518, cert. denied, 200 Conn. 807, 512 A.2d 231 (1986). “The state need not offer proof of guilt ‘beyond a possible doubt.’ ” State v. Hicks, 169 Conn. 581, 585, 363 A.2d 1081 (1975).

The defendant was charged with two counts of larceny in violation of General Statutes § 53a-122 (a) (2) and (4). Larceny occurs when, “with intent to deprive another of property or to appropriate the same to himself or a third person, [a person] wrongfully takes, obtains or withholds such property from an owner.” General Statutes § 53a-119; State v. Marra, 174 Conn. 338, 342, 387 A.2d 550 (1978); State v. Rochette, 25 Conn. App. 298, 304, 594 A.2d 1006, cert. denied, 220 Conn. 912, 597 A.2d 337 (1991). To convict a person under § 53a-122 (a) (2), the state must prove that the value of the property exceeded $10,000, and to convict a person under § 53a-122 (a) (4), the state must prove that the property was obtained by defrauding a public community, with the value of the property in excess of $2000.

At trial, the state presented alternative theories of guilt. The state’s primary theory was that the defendant did not actually work the overtime hours that she claimed on her biweeklies and for which she was paid. In the alternative, the state asserted that even if the defendant had worked the overtime hours in question, she did so wrongfully because she had not received approval from her supervisor to work the extra hours, and she did so to obtain moneys to which she was not entitled. She committed a larceny by obtaining that overtime pay by false pretenses in violation of § 53a-119 (2). We conclude that there was sufficient evidence for the jury to have found the defendant guilty under either theory.

The state offered the testimony of Charles Devaux, the personnel manager at Mansfield Training School during the time in question, who investigated the irregularities in the defendant’s attendance sheets. During his investigation, Devaux compared the biweeklies that were turned into the payroll department with the time and attendance records and found many inconsistencies. On the biweeklies submitted to payroll, the defendant claimed many hours that were not listed on the time and attendance sheets. Devaux testified that there were also many erasures of overtime hours on the biweeklies made after they were returned to the defendant from the payroll department. Devaux found 352 instances in which a total of 2950 hours of unauthorized overtime was listed on the payroll time cards but not on the time and attendance sheets. Also, he discovered sixteen holidays on which the defendant reported to the payroll department that she had worked, but on the time and attendance sheets listed herself as not working. These instances totaled 128 hours. Devaux found that on forty-two occasions, the defendant had listed herself as working but had taken vacation. Additionally, he testified that on twelve occasions, the defendant called in sick, but had marked herself as working on the payroll records. This time totaled seventy hours. He discovered eight occasions on which the defendant reported to payroll that she was sick, and reported to her supervisor that she was taking vacation time. Devaux testified that in inspecting the biweeklies recovered from the defendant’s office, it appeared to him that they did not contain the correct initials of the staff in the payroll department.

With regard to the state’s primary theory that the defendant falsely claimed to have worked the hours in question, the state presented at least nine witnesses who testified that they had rarely, if ever, seen the defendant work before or after her regular shift. For example, Thomas O’Meara, a shift supervisor at Mansfield Training School, testified that during the time in question, his desk was located three feet from the defendant’s. O’Meara testified that he worked a flexible schedule, meaning that he would adapt his schedule to the needs of the unit and often worked the second, third and weekend shifts. O’Meara testified that the defendant was typically present in the office during her regularly scheduled shift, 7 a.m. until 3:45 p.m., and that to his knowledge she did not work flexible time. O’Meara testified that during the times he worked the second, third and weekend shifts, he never saw the defendant at work, nor did he observe her car parked in the parking lot.

The state introduced the biweeklies, the time and attendance records, and the official payroll time cards into evidence. For example, the defendant’s biweeklies from March 14, 1986, through March 21, 1986, show that the defendant took vacation on March 14, and March 17 through 21. The biweeklies indicate that March 15 and 16 were pass days. The time and attendance records for that period correspond to the biweeklies. The time cards submitted to the payroll department, however, indicate that on March 14, the defendant worked seven hours, on both March 15 and 16, she worked eight hours overtime, and between March 17 and 21, she worked seven hours per day.

Similarly, the time and attendance cards for October 28 and 29, 1986, indicate that the defendant took vacation on those dates. The biweeklies for those dates also reflect that the defendant took vacation on those dates. The payroll time cards indicate, however, that the defendant worked eight hours on each of those days. O’Meara testified that he approved the defendant’s vacations on those dates, and she did not request permission to reschedule her vacation time.

The evidence was also sufficient to prove the defendant’s guilt under the state’s alternative theory that, even if the defendant did in fact work all of the hours she claimed to have worked, she did so wrongfully because she had not received authorization to work overtime. Several witnesses testified at trial that employee overtime was a critical problem at Mansfield Training School and that employees were under pressure to reduce their overtime hours as much as possible. The defendant was aware of this problem and had attended several meetings where this issue was discussed. The defendant was aware that all schedulers were required to obtain the approval of their supervisors in order to work overtime. There was testimony that the defendant had been granted approval to work only a relatively small number of overtime hours during the period in question. Furthermore, the defendant admits in her brief that she did not comply with the rule requiring preapproval of overtime hours.

We conclude that the evidence was sufficient to sustain the defendant’s conviction under either of the state’s theories of guilt. From the evidence presented, the jury could have reasonably found the defendant guilty of larceny in violation of subdivisions (2) and (4) of General Statutes § 53a-122 (a).

II

The defendant next claims that there was insufficient evidence to sustain her conviction of forgery in the second degree in violation of General Statutes § 53a-139. The defendant argues that there was insufficient evidence to prove that she altered the biweeklies, and, even if there was sufficient evidence to prove that she did so, the evidence was not sufficient to show that the altered records were not true and accurate. Moreover, the defendant maintains that the state failed to meet its burden of proving that in altering the records, the defendant intended to deceive, defraud or otherwise injure another as required by General Statutes § 53a-139. We do not agree.

Our review of the record and the transcript leads us to conclude that there was sufficient evidence for the jury to find that the defendant forged the initials of payroll personnel on the biweeklies in violation of General Statutes § 53a-139.

The following additional facts are necessary to our resolution of this claim. Kathy Incandella, a payroll officer at the Mansfield Training School, testified that as a matter of course, when the biweeklies are submitted to the payroll department, she and the other payroll officers transpose the information onto official payroll time cards that remain in the payroll department. The officers then return the biweeklies to the scheduler. She testified that each payroll officer sees each timesheet and initials the biweeklies at the top of each sheet. At trial, the state showed Incandella a series of the defendant’s biweeklies that had been recovered from the defendant’s office. Incandella testified that the initials KI, which appeared on the biweeklies in the location where payroll officers typically place their initials, were not in her own handwriting. She also testified, after viewing several other biweeklies with initials purporting to be those of her coworkers, that those initials were not in the handwriting of her coworkers.

Diane Boisvert, another payroll officer at Mansfield Training School, also testified as a state’s witness at trial. She testified that she also reviewed and initialed biweeklies and transposed the information onto time cards during the period in question. After viewing several of the defendant’s biweeklies that had been recovered from the defendant’s office, she testified that although the initials DB appeared at the top left hand corner of the biweeklies, the initials were not in her handwriting. She also testified that she was familiar with the handwriting of Incandella and other payroll officers, and that the initials that were purported to be theirs on several other biweeklies were not their initials. In addition, payroll officer Kellsey Bastis offered testimony substantially similar to that of Incandella and Boisvert.

The defendant contends that the state failed to sustain its burden of proof with regard to the element of intent under General Statutes § 53a-139. The defendant asserts that if she did alter the documents in question, there was insufficient evidence to prove that she did so with fraudulent intent.

“ ‘Intent is a mental process which ordinarily can be proven only by circumstantial evidence.’ State v. Zdanis, 182 Conn. 388, 396, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981). ‘The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available.’ State v. Rodriguez, 180 Conn. 382, 404, 429 A.2d 919 (1980) . . . .” (Citation omitted.) State v. Edwards, supra. The defendant’s intent in altering the biweeklies was a question for the jury. State v. Edwards, supra, 152.

The testimony of the various payroll officers that the initials on the biweeklies recovered from the defendant’s office were not their own, in conjunction with the testimony of Devaux regarding the numerous instances of additional overtime claimed by the defendant on the biweeklies submitted to payroll, would allow a jury reasonably to conclude that the defendant had forged the initials of the payroll employees with the intent to defraud. Thus, we conclude that there was sufficient evidence from which the jury could reasonably have found the requisite intent proven, as well as the other elements necessary for a conviction of forgery in the second degree.

Ill

Finally, the defendant claims that the trial court improperly admitted into evidence certain secondary documents in violation of the best evidence rule.

The following additional facts are relevant to this claim. Jody DiCarli, the payroll supervisor at Mansfield Training School, testified that beginning on March 24, 1989, the payroll department was instructed to photocopy each biweekly received from each scheduler before returning the original biweekly to the scheduler. Over the defendant’s objection, the trial court admitted into evidence exhibit J, consisting of copies of the photocopies that were made by the payroll department. The state offered exhibit J to show that the defendant’s biweeklies on file in the payroll department corresponded with the information on the official payroll time cards, but did not match the biweeklies retrieved from the defendant’s office. The documents in exhibit J contained the words “original Xerox.”

The defendant asserts that the admission of these second generation copies violated the best evidence rule because the state offered no testimony or evidence that the original photocopies were unavailable, that a good faith effort was made to locate the original photocopies, or that the documents admitted into evidence were identical to the original photocopies. The defendant claims that, at a minimum, the court should have required the state to establish the unavailability of the original copies or held an evidentiary hearing to determine whether the documents offered were identical copies of the original copies.

“As defined by our Supreme Court, the best evidence rule forces a party to produce the original writing, if it is available, when the terms of that writing are material and must be proved. Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 10, 513 A.2d 1218 (1986); see also C. McCormick, Evidence (3d Ed. 1984) § 230. ‘The best evidence rule typically applies when attempting to prove the contents of “ ‘instruments such as deeds, wills or contracts, where a slight variation of words may mean a great difference in rights.’ ” Brookfield v. Candlewood Shores Estates, Inc., supra, 10-11, quoting C. McCormick, supra, § 231.’ ” Coelm v. Imperato, 23 Conn. App. 146, 150, 579 A.2d 573, cert, denied, 216 Conn. 823, 581 A.2d 1054 (1990). “The purpose of the [best evidence] rule is to secure the most accurate rendition of the terms and wording of a document . . . and to guard against‘fraud and imposition.’” C. Tait & J. LaPlante, Connecticut Evidence § 10.7.

Pursuant to General Statutes § 52-180 (e), reproductions of business records are admissible as originals if the conditions set forth in General Statutes § 52-180 (a) are satisfied. Burkert v. Petrol Plus of Naugatuck, Inc., 5 Conn. App. 296, 299, 497 A.2d 1027 (1985); C. Tait & J. LaPlante, Connecticut Evidence § 10.10. “A copy of a business record is admissible under the statute if (1) the copy was made in the ordinary course of business and (2) the copy accurately reproduced the original on a durable medium.” State v. Crumble, 24 Conn. App. 57, 69, 585 A.2d 1245, cert. denied, 218 Conn. 902, 588 A.2d 1077 (1991).

We note as a threshold matter that appellate review of the admission of a document under § 52-180 is limited to determining whether the trial court abused its discretion. River Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn. 787, 795, 595 A.2d 839 (1991). In this case, the original biweeklies would clearly be admissible as business records under § 52-180 (a) because (1) they were made in the regular course of business, (2) it was the regular course of Mansfield Training School to make such a record, and (3) they were made at the time of the act described in the report, or within a reasonable time thereafter. Bell Food Services, Inc. v. Sherbacow, 217 Conn. 476, 485, 586 A.2d 1157 (1991). Furthermore, copies of the original biweeklies would be admissible under § 52-180 (c). DiCarli testified that she examined exhibit J and that it correlated to the original time cards submitted to payroll by the defendant. She also testified that all of the hourly information in exhibit J was in the defendant’s handwriting. This testimony provided a sufficient basis for the trial court to conclude that the copies “accurately reproduced the original on a durable medium.” State v. Crumble, supra.

The question that we must resolve in this case is whether a photocopy of a photocopy is admissible under General Statutes § 52-180. There is no requirement in § 52-180 (c) that only an original copy may be introduced. Furthermore, our Supreme Court has stated that the statutory business record exception to the hearsay rule should be liberally construed. River Dock & Pile, Inc. v. O & G Industries, Inc., supra. We conclude that a second generation copy is also admissible under § 52-180 (c) as long as the original satisfies the conditions of § 52-180 (a). Therefore, the trial court did not abuse its discretion in admitting the second generation copies of the biweeklies. The trial court properly determined that any doubt about the accuracy of the documents went to the weight to be afforded them by the jury rather than to their admissibility. Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 387, 461 A.2d 422 (1983).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-122 (a) provides in pertinent part: “A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and ... (2) the value of the property . . . exceeds ten thousand dollars . . . .”

       General Statutes § 53a-122 (a) provides in pertinent part: “A person is guilty of larceny in the first degree when . . . (4) the property is obtained by defrauding a public community, and the value of such property exceeds two thousand dollars.”

       General Statutes § 53a-139 (a) provides in relevant part: “A person is guilty of forgery in the second degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument or issues or possesses any written instrument which he knows to be forged, which is or purports to be, or which is calculated to become or represent if completed ... (2) a public record or an instrument filed or required or authorized by law to be filed in or with a public office or public servant . . . .”

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

       General Statutes § 52-180 (a) provides: “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.”