author: BEACH, J.

text:
    STEVEN J. BLOOM, TRUSTEE, ET AL. v. LESLIE MIKLOVICH, EXECUTOR (ESTATE OF HILLARD E. BLOOM), ET AL.
    (AC 27184)
    Bishop, Beach and Mihalakos, Js.

      Argued September 8
    officially released November 25, 2008

      A. Reynolds Gordon, with whom, on the brief, was Frank A. DeNicola, Jr., for the appellants (plaintiffs).

      Patrick D. McCabe, with whom, on the brief, were Robert S. Bello, Lawrence M. Lapine and Thomas M. Cassone, for the appellees (named defendant et al.).

      Eric M. Higgins, for the appellee (defendant Leslie Miklovich, executor of the estate of Joan Bloom).
   Opinion

BEACH, J.

The plaintiffs, Steven J. Bloom and Robert Weiss, trustees of the Steven J. Bloom revocable trust (Steven Bloom trust), appeal from the judgment of the trial court following the granting of both the motion to dismiss and the motion to strike brought by the defendants, Leslie Miklovich and Joseph Richichi. On appeal, the plaintiffs claim that the court improperly (1) granted the defendants’ motion to strike counts two and three on the bases of misjoinder and nonjoinder and (2) granted the defendants’ motion to dismiss count four as unripe for adjudication. We affirm the judgment of the trial court.

The following facts are not in dispute for the purpose of the motions. This appeal concerns two pieces of waterfront property located in Norwalk. The first, located at 38 Cove Avenue, was purchased by twin brothers Norman R. Bloom and Hillard E. Bloom in 1959 as tenants in common, each with one-half interest in the parcel. In 1963, the brothers purchased the adjacent property at 40 Cove Avenue, again as tenants in common with one-half interest each. Upon his death in 1989, Norman Bloom’s interest in both properties passed to the Steven Bloom trust, leaving it with a one-half interest as a tenant in common in both the 38 and 40 Cove Avenue properties. In 1991, Hillard Bloom quitclaimed his interest in 40 Cove Avenue to his wife, Joan Bloom. Hillard Bloom died in 2001, and his interest in 38 Cove Avenue passed to his estate and then to the Hillard E. Bloom revocable trust indenture (Hillard Bloom trust). Thus, as it stood at the time of the court’s decision, the owners of 38 Cove Avenue were the Steven Bloom trust and the Hillard Bloom trust as tenants in common, and the owners of 40 Cove Avenue were the Steven Bloom trust and the Joan Bloom estate as tenants in common.

By amended complaint dated June 2, 2004, the plaintiffs sought partition in kind of 38 Cove Avenue in count one, partition in kind of 40 Cove Avenue in count two, partition in kind of 38 Cove Avenue and 40 Cove Avenue as a single parcel in count three, the imposition of easements over the properties in count four, an accounting and money damages as to 38 Cove Avenue in count five, and an accounting and money damages as to 40 Cove Avenue in count six.

The defendants, whose trust had an interest in only 38 Cove Avenue, moved to dismiss count four of the complaint on the ground that the easement claims were not ripe for adjudication. These defendants also moved to strike counts two, three and six of the amended complaint on the ground of misjoinder. They claimed that these counts, which apply to 40 Cove Avenue, could not be properly joined with claims seeking partition of 38 Cove Avenue because resolution of the claims involving 40 Cove Avenue would not affect the moving defendants. In the alternative, the defendants moved to strike counts two, three and six on the ground of nonjoinder. They claimed that even if the court should find the counts otherwise properly joined because of the common grantor exception, that exception does not apply because other parties who received other properties from the common grantors have not been joined in the action.

Finding that the easement issue was not ripe for adjudication, the court granted the defendants’ motion to dismiss count four. It also granted the motion to strike counts two and three because the claims were not properly joined. The court further found that the common grantor exception did not save the counts because even if the exception was generally applicable, the failure to join other parties who were successors in interest to the original cotenants as to all parcels owned by them precluded its application. The court then granted the plaintiffs’ motion for judgment on the second and third counts. Additional facts will be set forth as necessary. This appeal followed.

I

The plaintiffs first claim that the court improperly granted the defendants’ motion to strike counts two and three of the complaint. We disagree.

As an initial matter, we identify the appropriate standard of review for a motion to strike. “Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling on the [defendants’ motion] is .plenary. . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. . . . Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged. ... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.” (Internal quotation marks omitted.) Violano v. Fernandez, 88 Conn. App. 1, 4-5, 868 A.2d 69 (2005), aff'd, 280 Conn. 310, 907 A.2d 1188 (2006). “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.” Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).

A

First, the plaintiffs claim that the court improperly struck counts two and three on the ground that the Joan Bloom estate was misjoined in this action. We disagree.

Causes of action and parties may not be joined in a single action unless “[t]he several causes of action so united . . . affect all the parties to the action . . . .” General Statutes § 52-97; Practice Book § 10-21. Joinder is proper when “each defendant is so related to the group of facts constituting the primary basis of liability that upon proper proof recovery may be had against him . . . .” Veits v. Hartford, 134 Conn. 428, 434-35, 58 A.2d 389 (1948). “Naming an improper person as a party in a legal action constitutes misjoinder. . . . The exclusive remedy for misjoinder of parties is by motion to strike.” (Citation omitted.) Zanoni v. Hudson, 42 Conn. App. 70, 73, 678 A.2d 12 (1996). Partition requires “undivided possession” to “be severed, and [to grant] each person having the right to be in possession of the whole property [the] right for one more exclusive in its nature . . . .” (Internal quotation marks omitted.) Fernandes v. Rodriguez, 255 Conn. 47, 55-56, 761 A.2d 1283 (2000). “[T]here can be no partition of several parcels of land unless each of the parties to the partition proceeding has an interest in the entire property or estate sought to be partitioned.” 59A Am. Jur. 2d, Partition § 76 (2003). “Partition requires commonality of ownership; it is not precluded by it.” (Emphasis in original.) Sclafani v. Dweck, 85 Conn. App. 151, 157, 856 A.2d 487, cert. denied, 271 Conn. 944, 861 A.2d 1177 (2004). Joining parties to a partition action that do not have an interest in the entire property to be partitioned, therefore, constitutes misjoinder.

The plaintiffs argue that the Hillard Bloom trust and the Joan Bloom estate share an identity of interests that allows them to be joined in this partition action. The plaintiffs maintain that the properties located at 38 and 40 Cove Avenue in reality compose a single parcel and, for the purposes of deciding the defendants’ motion to strike, should be treated as such by the court. The plaintiffs argue that all well pleaded facts in the complaint should be deemed to be true when deciding the motion, that the complaint alleged that there is commonality of ownership and identity of interests among the defendants in both parcels, and that both parcels were owned by the same parties. Although we take the facts to be those alleged in the complaint; see Violano v. Fernandez, supra, 88 Conn. App. 4; whether the two properties have become merged or are deemed to compose a single tract is a conclusion rather than a fact.

In their amended complaint, the plaintiffs alleged that “there is a commonality of ownership and identity of interests among the defendants in both parcels ... in that both parcels were owned and controlled by the same parties, both parcels are now owned and controlled by the same parties and, absent [the partition requested], both parcels will be owned and controlled by the same parties . . . .’’In support of this conclusion, the plaintiffs alleged the following facts: 38 Cove Avenue and 40 Cove Avenue are adjacent properties that share a common driveway and parking area; the two properties originally shared two owners as tenants in common; each property is integral to access of the other; each of the properties loses substantial value without the access provided by the other; the Hillard Bloom trust is the owner as a tenant in common with the plaintiffs in the 38 Cove Avenue property; and the Joan Bloom estate is the owner as a tenant in common with the plaintiffs in the 40 Cove Avenue property.

These facts are insufficient to support a conclusion that 38 and 40 Cove Avenue constitute a single parcel and that the owners of each share an identity of interests. First, the properties are analytically and historically distinct and separate from each other. The Hillard Bloom trust has no interest in the 40 Cove Avenue property and the Joan Bloom estate has no interest in the 38 Cove Avenue property. The two parcels were purchased as separate tracts roughly four years apart. When Hillard Bloom quitclaimed his interest in 40 Cove Avenue to Joan Bloom, he retained his interest in 38 Cove Avenue. This severance tends to show that the two properties are distinct from one another and were treated as such. Second, the owners of the two properties are distinct entities. The plaintiffs are tenants in common at 38 Cove Avenue with the Hillard Bloom trust and at 40 Cove Avenue with the Joan Bloom estate. The Hillard Bloom trust and the Joan Bloom estate are distinct entities with separate legal identities. Although they apparently share common individuals who are acting in representative capacities in each, the plaintiffs have not alleged facts sufficient to “pierce the veil” of the respective estate and trust and to find a common identity on this basis alone. The plaintiffs, therefore, failed to plead sufficient facts to support the legal conclusion that the defendants share a virtual identity of interests. Counts two and three were properly stricken on the ground of misjoinder.

B

The plaintiffs next claim that the court improperly struck counts two and three of their complaint on the additional basis of nonjoinder. We disagree.

In addition to granting the motion to strike on the basis of misjoinder, the court struck counts two and three on the basis of nonjoinder for failing to include all those parties who have a successor interest deriving from the original cotenancy. The plaintiffs argued in the alternative that even if the court found that the defendants did not share a unity of interests, the “common grantor” exception saves the partition action from misjoinder. The plaintiffs argue that the common grantor exception applies to this case because both 38 and 40 Cove Avenue were owned by Norman Bloom and Hillard Bloom as tenants in common. The defendants argue, however, that the nonjoinder of indispensable parties precludes the plaintiffs from relying on the common grantor exception. We agree.

The following additional facts are relevant to our resolution of the plaintiffs’ claim. The defendants alleged that the original tenants, Norman Bloom and Hillard Bloom, owned, in addition to the properties located at 38 and 40 Cove Avenue, as many as nine other properties as tenants in common. The record shows that the plaintiffs did not contest this representation.

According to the common grantor exception, “[t]he rule requiring the parties to be interested in all the land is subject to the exception that if the rights of the parties are all derived from a cotenancy as a common source of title, partition of different parcels will be granted even though one or more of the parties are interested in only one parcel.” 59A Am. Jur. 2d, supra, § 76. The common grantor exception “is confined to the single situation where all of the property was originally held by the same cotenants, but one of those tenants conveyed an interest in one of the parcels to a third party.” Id. A suit for partition, however, “should include all lands of the original cotenancy. One cotenant cannot enforce partition of part only of the common estate.” Id., § 77. This is because the exception “is based on the universally accepted doctrine that one cotenant cannot prejudice the rights of cotenants by a conveyance of his or her interest in a portion of the property held in common.” Id., § 76; see also Ianotti v. Ciccio, 219 Conn. 36, 43, 591 A.2d 797 (1991).

The common grantor exception does not apply to the plaintiffs’ requested partition because the plaintiffs have failed to join parties who are indispensable to the action. Although the court did not explicitly determine whether the common grantor exception applied to the plaintiffs, it impliedly concluded that the exception did not apply because of nonjoinder: the plaintiffs failed to include as parties the owners of the other properties that composed the entirety of the original cotenancy. In addition to the properties located at 38 and 40 Cove Avenue, the original tenants, Norman Bloom and Hillard Bloom, owned as many as nine other properties as cotenants. These properties, along with 38 and 40 Cove Avenue, composed the original estate. Failure to include those parties who hold an interest in the properties that composed the original tenancy constitutes nonjoinder because they are indispensable parties to the action.

“Parties are considered indispensable when they not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such condition that its final [disposition] may be . . . inconsistent with equity and good conscience. . . . Indispensable parties must be joined because due process principles make it essential that [such parties] be given notice and an opportunity to protect [their] interests by making [them] a party to the [action]. . . . Necessary parties, in contrast, are those [p]ersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it. . . . [B]ut if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties.” (Citations omitted; internal quotation marks omitted.) Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 225-26 n.10, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997).

The owners of the other properties derived from the original cotenancy are indispensable parties. “[W]hile a cotenant has a right, on a partition, to a share of the common estate, he has no right to demand a particular part thereof.” Ianotti v. Ciccio, supra, 219 Conn. 43. “[.0]ne tenant in common can neither sell nor [encumber] any part of the estate by metes and bounds, so as to prevent such a division or distribution as would give the other tenants in common an [unencumbered] title to the part thus sold or [encumbered].” Id., 42. By omitting the other parties who are successors in interest to the original estate, the plaintiffs are, in effect, demanding partition of a particular part of the original common estate, which included other parcels. Doing so would prejudice the rights of the tenants of the original estate. The court was correct to conclude that the common grantor exception did not apply because parties with an interest in the original cotenancy are indispensable to this action and were not joined.

II

Next, the plaintiffs claim that the court improperly granted the defendants’ motion to dismiss count four. We disagree.

The following additional facts are relevant to our resolution of the plaintiffs’ claim. In count four, the plaintiffs requested two sets of easements. The first would have benefited 40 Cove Avenue and burdened 38 Cove Avenue, and the second would have benefited 38 Cove Avenue and burdened 40 Cove Avenue. The court dismissed count four as being unripe for adjudication because the plaintiffs currently own both properties as a tenant in common and, as such, have the right to the full use and enjoyment of both properties. Therefore, the court reasoned, the need for easements matures only in a postpartition context.

The standard of review of a challenge to a court’s granting of a motion to dismiss is well established. “In an appeal from the granting of a motion to dismiss on the ground of subject matter jurisdiction, this court’s review is plenary. A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Searles v. Dept. of Social Services, 96 Conn. App. 511, 513, 900 A.2d 598 (2006). Ripeness is a justiciability doctrine, which implicates the court’s subject matter jurisdiction. See Esposito v. Specyalski, 268 Conn. 336, 347, 844 A.2d 211 (2004). We will first address the stricken counts, followed by the dismissed count.

The general rule is that a case is justiciable if it is “capable of resolution on the merits by judicial action.” Pellegrino v. O’Neill, 193 Conn. 670, 673, 480 A.2d 476, cert. denied, 469 U.S. 875, 105 S. Ct. 236, 83 L. Ed. 2d 176 (1984). This court does not have jurisdiction to resolve a controversy that is not ripe for adjudication. See George v. Watertown, 85 Conn. App. 606, 612, 858 A.2d 800, cert. denied, 272 Conn. 911, 863 A.2d 702 (2004). “When a parcel is owned by more than one party, each of whom holds the title to an undivided portion, each party has the right to be in possession of the whole property.” Sclafani v. Dweck, supra, 85 Conn. App. 159.

The court properly granted the defendants’ motion to dismiss count four on the ground that it was unripe for adjudication. At this time, the plaintiffs have no need for easements over either 38 or 40 Cove Avenue because, as tenants of each, they have the right to be in possession of the whole property. See id., 160 (finding that easements granted were not necessary because each owner holding undivided one-third interest was entitled to be in possession of whole property regardless of whether easement had been granted as to remaining two thirds). Granting the easements that the plaintiffs request, prior to partition, would have no effect on the plaintiffs’ possession and use of the properties. Therefore, the plaintiffs’ claim in count four is not ripe for adjudication.

The judgment is affirmed.

In this opinion the other judges concurred.

       During the pendency of this action, Miklovich and Richichi, executors of the estate of Hillard Bloom, transferred Hillard Bloom’s interest in the property from his estate to the Hillard E. Bloom revocable trust indenture, of which Miklovich and Richichi were trustees. They also intervened in the action in their capacities as trustees. Although Joan Bloom was named as a defendant in this action; see footnote 2; she was not party to the motions to strike and to dismiss that are at issue in this opinion. We refer in this opinion to Miklovich and Richichi as the defendants.

       Joan Bloom died on April 27,2007, and Miklovich, executor of the estate of Joan Bloom, was substituted as a defendant.

       On appeal, the plaintiffs claim that the defendants waived their right to file the motion to dismiss and the motion to strike because the motions were filed in response to the amended complaint and not an earlier complaint. The plaintiffs claim that because the defendants could have filed the motion to strike and the motion to dismiss in response to the earlier complaint, but failed to do so, they waived their right to do so in response to the amended complaint. The earlier complaint included requests for both partition in kind and partition by sale. The amended complaint requested only partition in kind and did not request partition by sale.
      The standard of review for such an issue is abuse of discretion. Sabino v. Ruffolo, 19 Conn. App. 402, 404, 562 A.2d 1134 (1989) (“the court has discretion to allow the filing of pleadings out of order”). The court did not address this issue in its ruling, and the plaintiffs did not move for articulation on this issue. See Practice Book § 66-5. Therefore, there is no record from which this court may address this argument. See Celentano v. Oaks Condominium Assn., 265 Conn. 579, 589 n.9, 830 A.2d 164 (2003) (“[b]ecause our review is limited to matters in the record, we will not address issues not decided by the trial court” [internal quotation marks omitted]).

       The court did not grant the motion to strike count six. This count was subsequently withdrawn by the plaintiffs on February 15, 2005.

       It is true that Miklovich serves as both a trustee to the Hillard Bloom trust and as the executor to the Joan Bloom estate. These are, however, distinct roles with separate legal identities. See Middlebrook v. Pendleton, 47 Conn. 9, 17-18 (1879) (distinguishing between action against individual as individual and action against individual as executor). Also, it should be noted that Miklovich was not substituted as a party in her capacity as the executor of the Joan Bloom estate until September 14, 2007, more than five years after this action was instituted.

       The plaintiffs claim that the defendants’ motion to strike on the ground of nonjoinder was an impermissible “speaking motion” because it relied on evidence outside of the complaint to show the existence of the other properties. Evidence of the other properties that make up the original estate, however, was admitted properly under Practice Book § 10-39 (b), which provides: “A motion to strike on the ground of nonjoinder of a necessary party . . . must give the name and residence of the missing party or interested person or such information as the moving party has as to the identity and residence of the missing party or interested person and must state the missing party’s or interested person’s interest in the cause of action.” The defendants satisfied these requirements in its motion to strike. The defendants’ motion to strike on the basis of nonjoinder was, therefore, not an impermissible “speaking motion,” as the plaintiffs claim, in the context of this case.

       The common grantor exception has never been expressly adopted in Connecticut. Even if we assume that Connecticut should adopt that exception, it would not save the stricken counts because of nonjoinder.

       The plaintiffs also argue that to require all those who are successors in interest to the original cotenancy to be joined as parties would be impracticable. The standard of review for such an issue is abuse of discretion. See Lettieri v. American Savings Bank, 182 Conn. 1, 13, 437 A.2d 822 (1980). The court, however, did not address this issue in its ruling, and the plaintiffs did not move for articulation on this issue. See Practice Book § 66-5. Therefore, there is no record from which this court may address this argument. See Celentano v. Oaks Condominium Assn., 265 Conn. 579, 589 n.9, 830 A.2d 164 (2003) (“[bjecause our review is limited to matters in the record, we will not address issues not decided by the trial court” [internal quotation marks omitted]).


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. RANDY FLEMING
    (AC 27836)
    Bishop, Gruendel and Foti, Js.

      Argued September 15
    officially released November 25, 2008

      William B. Westcott, special public defender, for the appellant (defendant).

      Ronald G. Weller, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Roger S. Dobris, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Randy Fleming, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134, larceny in the sixth degree in violation of General Statutes § 53a-125b, attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59, and carrying a pistol without a permit in violation of General Statutes § 29-35. On appeal, the defendant claims that the trial court improperly (1) denied his motion for a judgment of acquittal because the evidence was insufficient to support his conviction and (2) instructed the jury on the crime of attempt to commit assault in the first degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On February 26, 2005, just after midnight, Salim Ali, a cashier, was finishing his shift at the Quick and E-Z Deli (deli) on Washington Street in New Haven. Ali’s colleague, Abdullah, was in the deli’s back room. Ali observed a man, whom he later identified as the defendant, approach the deli and pull what Ali described as a “half mask” over his face. After the defendant entered the deli, Ah admonished him to remove the half mask from his face. The defendant ignored Ali’s demand and approached the counter where Ali was standing. The defendant then pulled a handgun from his jacket pocket, pointed it at Ali and said, “this is a stickup, give me all your money.” Ali gave the money from the cash register, a total of $38, to the defendant, who placed it in his pocket, pointing the gun at Ali all the while.

The defendant, however, did not leave the deli but stood silent with the gun pointed at Ali. Trying to accommodate the defendant, Ali offered his own money, which was in his wallet in the pocket of his jacket hung up on the wall behind Ali, to his left in a small area out of view of the defendant. Ali assured the defendant that all he had in his jacket was his wallet, and, with his hands raised, Ali slowly moved toward his jacket. Ali lost sight of the defendant and thought that he had left the deli. Ali peered through a deli case, which had glass on both the front and back, trying to determine if the defendant had, indeed, left the deli. Ali saw the defendant crouching in front of the deli case. The defendant then fired two gunshots through the case at Ali, shattering the glass and cutting Ali’s hands, causing him to bleed. By the time Ali’s coworker, Abdullah, came from the back room and pushed the panic button alerting the police of the robbery, the defendant had left the deli. The police arrived, questioned Ali about the robbery and collected physical evidence.

On March 30, 2005, Detectives Joseph Pettola and Michael Wuchek of the New Haven police department went to another of Ali’s places of employment in New Haven with a photographic array containing a photograph of the defendant. Ali selected the photograph of the defendant in the array but could not make a positive identification, stating that the defendant’s face in the photograph was fuller than it was on the night of the robbeiy. Ali asserted that he nearly was certain that the person in the photograph was the man who robbed him on February 26, 2005, but requested that he see a more recent photograph.

On April 4, 2005, the defendant was arrested by the New Haven police for his alleged involvement in four other robberies of local businesses that occurred on March 23 and 24, 2005. On April 5, 2005, Ali saw an article in the New Haven Register that contained a photograph of the defendant. The headline of the article was, “Elm City man facing robbery charges.” The defendant was identified by name in the caption of the photograph. Soon after, Ali telephoned Pettola, telling him that he was certain that the man depicted in the photograph in the newspaper, the defendant, was the same man who had robbed him on February 26, 2005. The next day Ali went to the police department and met with Pettola and Wuchek. Ali again viewed a photographic array with a photograph of the defendant and seven other similar looking men. Ali immediately identified the defendant as the man who had robbed the deli.

The defendant subsequently was charged with various crimes stemming from the alleged robberies of these local business establishments, including the February 26, 2005 robbery of the deli. The defendant’s jury trial commenced in January, 2006. After closing arguments, the court instructed the jury. The jury found the defendant guilty only of the charges related to the robbery of the deli and found him not guilty of all other charges. On May 6, 2006, the court sentenced the defendant to a total effective term of fifteen years incarceration, execution suspended after eight years, with five years probation. This appeal followed. Additional facts will be set forth where necessary.

I

The defendant first claims that the court improperly denied his motion for a judgment of acquittal because the evidence was insufficient to sustain his conviction. Specifically, lie argues that there was insufficient evidence to prove beyond a reasonable doubt (1) the identity of the robber and (2) that the defendant carried a pistol with a barrel length of less than twelve inches. We are not persuaded.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the; evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Green, 261 Conn. 653, 667, 804 A.2d 810 (2002).

“It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. ... It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Sanchez, 75 Conn. App. 223, 238-39, 815 A.2d 242, cert. denied, 263 Conn. 914, 821 A.2d 769 (2003).

“[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . We 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.” (Internal quotation marks omitted.) State v. Davis, 68 Conn. App. 794, 798, 793 A.2d 1151, cert. denied, 260 Conn. 920, 797 A.2d 518 (2002). Furthermore, “[i]n our review of the evidence to determine its sufficiency, we do not look at the evidence to see whether it supports the defendant’s innocence. . . . Instead, our focus is whether there is a reasonable view of the evidence that supports the [trier’s] verdict of guilty.” (Citation omitted; internal quotation marks omitted.) State v. Farnum, 275 Conn. 26, 36, 878 A.2d 1095 (2005). Guided by these principles, we now turn to the defendant’s specific claims.

A

The first argument posed by the defendant is that the evidence adduced at trial was insufficient to establish his identity as the perpetrator of the February 26, 2005 robbery. On the basis of our review of the record, we conclude that sufficient evidence existed from which the jury reasonably could have found that the defendant was the perpetrator of this robbery.

“It is black letter law that in any criminal prosecution, the state bears the burden of proving beyond a reasonable doubt the defendant’s identity as one of the perpetrators of the crime charged.” State v. Smith, 280 Conn. 285, 302, 907 A.2d 73 (2006). The defendant argues that the testimony of the one eyewitness to the robbery, Ali, was insufficient as a matter of law to support the conviction for two reasons. First, the defendant claims that Ali’s ultimate identification of him was unreliable because it was made only after Ali saw a photograph of the defendant in a newspaper article alleging his involvement in a string of local robberies. Second, the defendant asserts that because the peipetrator wore a mask, it was impossible for Ali to make a positive identification of the robber he encountered on February 26,2005. The defendant emphasizes that Ali was unable, with certainty, to identify the defendant the first time the police showed him a photographic array on March 30, 2005. The defendant also underscores the span of time between the robbery, Ali’s having seen the newspaper article and his ultimate identification of the defendant at the police station. The defendant contends that those factors indicate that the identification evidence adduced at trial was insufficient to support his conviction. We disagree.

The record reveals that the jury reasonably could have concluded that the defendant was the robber of the deli on February 26, 2005. Ali testified that he was 100 percent sure that the defendant was the man who robbed the deli that night. Ali supported this contention with testimony that he observed the defendant for an extended period of time, amounting to two minutes or more. Furthermore, Ali testified that the deli was brightly lit and that the robber stood within two to three feet of him. Ali also testified that he purposefully paid very close attention to the robber’s face. Additionally, Ali testified that the mask the robber wore was so thin that he saw much of the defendant’s face through it. He also testified that the robber wore a “half mask,” leaving exposed the man’s mouth, nose, eyes, forehead and portions of his hair. Therefore, on the basis of that evidence, the jury reasonably could have concluded that Ali was able to recognize the defendant when shown the photographs of similar looking men at the police station several weeks after the robbery, despite any intervening events. This conclusion was bolstered significantly by the fact that Ali also was able to identify the defendant in court during the trial. See State v. Morgan, 274 Conn. 790, 802, 877 A. 2d 739 (2005) (“in-court identifications . . . [are] sufficient evidence by themselves to allow the trier of fact to conclude that it was the defendant who committed the crimes charged”).

Although the defendant, for various reasons, argues that Ali’s testimony is not credible and therefore insufficient to support the conviction, it is fully within the province of the jury to determine what weight this testimony is afforded. “[W]e must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Citation omitted; internal quotation marks omitted.) State v. Mejia, 233 Conn. 215, 224, 658 A.2d 571 (1995). Moreover, because the jury has the occasion to scrutinize the behavior, deportment and attitude of the witnesses and to measure their credibility, “[i]t is axiomatic that evidentiary inconsistencies are for the jury to resolve, and it is within the province of the jury to believe all or only part of a witness’ testimony. ” State v. Meehan, 260 Conn. 372, 381, 796 A.2d 1191 (2002).

The contention that the defendant’s photograph appeared in the newspaper and was observed by Ali prior to his positive identification of the defendant had somehow made insufficient the evidence regarding the robber’s identity was also a matter for the jury. As we have just noted, the jury is the final arbiter as to the credibility of any witness. The jury was aware that Ali had seen the defendant’s photograph in the newspaper prior to his ultimate identification of him as the robber. The jury could have, therefore, chosen to afford this fact little or no weight or as much weight as it believed it deserved in the circumstances. “We do not sit as a [seventh] juror who may cast a vote against the verdict based upon . . . the cold printed record.” (Internal quotation marks omitted.) State v. Davis, supra, 68 Conn. App. 798.

Viewing the evidence in a light most favorable to sustaining the verdict, we conclude that Ali’s testimony was sufficient to establish, beyond a reasonable doubt, the identity of the defendant as the perpetrator of the robbery.

B

The defendant next claims that the state presented insufficient evidence to support his conviction of the charge of carrying a pistol without a permit. Specifically, he argues that the state presented insufficient evidence of the barrel length of the firearm used in the robbery of the deli. On the basis of our review of the record, we conclude that sufficient evidence existed from which the jury reasonably could find that the barrel length of the firearm used in the robbery was less than twelve inches.

Section 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon his or her person, except when such person is within the dwelling house or place of business of such person, without a permit to carry the same issued as provided in section 29-28. . . .” The terms “pistol” and “revolver,” as used in § 29-35, are defined as “any firearm having a barrel less than twelve inches in length.” General Statutes § 29-27. Accordingly, the defendant can be found guilty of violating § 29-35 (a) only if the state proves beyond a reasonable doubt that he was carrying a firearm that had a barrel that was less than twelve inches long. See State v. Perry, 48 Conn. App. 193, 196, 709 A.2d 564, cert. denied, 244 Conn. 931, 711 A.2d 729 (1998). We recognize, however, that direct numerical evidence of barrel length is not required to obtain a proper conviction under § 29-35 (a). See State v. Williams, 231 Conn. 235, 251-52, 645 A.2d 999 (1994), overruled in part on other grounds by State v. Murray, 254 Conn. 472, 487, 757 A.2d 578 (2000) (en banc).

The following additional facts are necessary for the resolution of the defendant’s claim. Ali testified that the defendant, on the night of the robbery, pulled a handgun out of his jacket pocket. He described the gun as flat, black and a “little bit big.” During the robbery, the defendant fired two gunshots into the deli case in Ali’s direction. At the deli, immediately after the robbery, the police recovered two spent .45 caliber shell casings and two spent bullets, the bullets being found behind the deli case.

At trial, James Stephenson, a firearms examiner from the state forensic science laboratory, testified that the majority of firearms that fire .45 caliber bullets are semiautomatic pistols. He further testified that his inspection of the spent bullets indicated that there were several possible manufacturers of the firearm used in the robbery. Included among the possible manufacturers were Colt, U.S. Military Firearms, Detonics, AMT, Fox, Browning, Kimber and Para-Ordnance. The state, during Stephenson’s testimony, introduced into evidence a photograph of a Colt .45 caliber semiautomatic pistol as an example of a firearm manufactured to fire the type of bullets found at the scene of the robbery. Stephenson indicated that the gun depicted in that photograph was representative of the class of firearm that discharges the kind of spent casings and bullets found at the scene of the robbery. Detective Richard Pelletier of the firearms unit of the New Haven police department provided testimony concerning several manufacturers of semiautomatic .45 caliber pistols. He indicated that none of those companies manufactured firearms with a barrel length of more than twelve inches capable of discharging the kind of spent casings and bullets found at the scene of the robbery.

Although the testimony of witnesses and the photograph of the Colt were the only evidence adduced at trial as to the length of the barrel of the firearm, 6there was sufficient evidence for any rational jury to conclude that the gun barrel was less than twelve inches in length. We note that “[i]t is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Emphasis added; internal quotation marks omitted.) State v. Sanchez, supra, 75 Conn. App. 238-39.

The police officer who interviewed Ali immediately after the incident testified that Ali told him that the defendant had used a handgun during the robbery. Ali testified that the defendant pulled the firearm from a jacket pocket. See State v. Williams, supra, 231 Conn. 252 (handgun pulled from jacket pocket supports inference that barrel less than twelve inches); State v. Trotter, 69 Conn. App. 1, 7, 793 A.2d 1172 (fact that gun fits in coat pocket supports inference that barrel less than twelve inches), cert. denied, 260 Conn. 932, 799 A.2d 297 (2002). Ah also testified that the defendant held the weapon at all times during the robbery with one hand and not both hands. See State v. Williams, 48 Conn. App. 361, 372, 709 A.2d 43 (jury can infer gun barrel less than twelve inches by ability to handle firearm with one hand), cert. denied, 245 Conn. 907, 718 A.2d 16 (1998).

Last, Ali, when asked to describe the size of the gun, responded: “It big. A little bit bigger, like this.” The phrase, “like this,” is a clear indication that a gesture accompanied Ali’s verbal response. Because the question posed by the prosecution asked Ali to describe the size of the weapon, the jury reasonably could infer that Ali’s gesture was, indeed, a description of the size of that weapon. This court has concluded, in factually comparable circumstances, that a jury, after witnessing similar demonstrative evidence and being instructed on the state’s burden of proving the length of the barrel of the gun, was “not expected to lay aside matters of common knowledge or their own observations and experiences, but rather, to apply them to the facts as presented to arrive at an intelligent and correct conclusion.” (Internal quotation marks omitted.) State v. Williams, supra, 48 Conn. App. 372. We therefore conclude, viewing the evidence in the light most favorable to sustaining the verdict, that the jury reasonably could have found that the firearm used by the defendant in the robbery of the deli had a barrel of less than twelve inches in length.

II

Next, the defendant claims that the court improperly instructed the juiy on the crime of attempt to commit assault in the first degree. Specifically, he claims that although he was charged with violating § 53a-59 (a) (1), the court erroneously instructed the jury on the wrong subdivision of the statute, § 53a-59 (a) (5).* 1*3*** He contends that the court’s instruction deprived him of fair notice of the charges against him and provided the jury a legally inadequate theory of liability. We disagree.

The defendant failed to preserve his claim and now seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “This court has held that only under the most exceptional circumstances will it consider a claim, constitutional or otherwise, that has not been raised [in] and decided by the trial court. . . . However, [i]t is . . . constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged. . . . Consequently, the failure to instruct a juiy on an element of a crime deprives a defendant of the right to have the jury told what crimes he is actually being tried for and what the essential elements of those crimes are.” (Citations omitted; internal quotation marks omitted.) State v. Knight, 56 Conn. App. 845, 849-50, 747 A.2d 13 (2000). Accordingly, we agree with the defendant that “the jury instruction is subject to Golding review because the defendant raises a constitutional claim involving a fundamental right, and the record is adequate for review.” State v. Denby, 235 Conn. 477, 483, 668 A.2d 682 (1995).

The following additional procedural history is necessary for our review of the defendant’s claim. On April 19, 2005, the defendant was charged formally by information with, among other crimes, attempt to commit assault in the first degree in violation of §§ 53a-49 and 53a-59. The defendant subsequently was charged specifically with violating § 53a-59 (a) (1) on the final long form information filed with the court on January 19, 2006. On that day, following closing arguments, the court gave its final instructions to the jury. The court, when giving the jury instruction for attempt to commit assault in the first degree, instructed it on § 53a-59 (a) (5).

The court’s jury instruction, in relevant part, provided: “In count three, the state accuses the defendant of criminal attempt to commit assault in the first degree by means of a discharge of a firearm in violation of §§ 53a-49a (2) and 53a-59 (a) (5) of the Penal Code. The crime of assault in the first degree is described by our statute as follows: A person is guilty of assault in the first degree when, with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a discharge of a firearm. . . .

“So, the first element the state has to prove in this case beyond a reasonable doubt is that the defendant had the kind of mental state required for the commission of a crime of assault in the first degree. And the intent for that crime is the intent to cause physical injury to another person. . . .

“So, the state has to prove both intent and conduct beyond a reasonable doubt to obtain a conviction in this case. The crime of criminal intent to commit assault in the first degree as charged in count [three], this [crime] has four elements which the state must prove beyond a reasonable doubt—that the defendant intended to cause physical injury to another person, that he attempted, as I define that word to you, to cause physical injury to that person or [a] third person, that he attempted to cause that injury by means of a discharge of a firearm. With regard to the intent to cause physical injury: physical injury as defined by our statutes means the impairment of physical condition or pain. The state must prove beyond a reasonable doubt [that] the defendant intended to cause physical injury to another person, [and] what the defendant intended is a question of fact for you to determine guided by the instructions on intent that I’ve already given you.

“The next element the state must prove beyond a reasonable doubt is that the defendant attempted to cause physical injury by means of a discharge of a firearm, and I’ve defined that term for you before. Once again, this charge involves a criminal attempt as I’ve defined that for you and not the completed act; that is, it’s not necessary that the defendant actually caused physical injury to anybody in order to constitute the crime in this case, but only that you find beyond a reasonable doubt that he attempted to do so.

“If you find all the elements that I’ve just described to you to be proved by the state beyond a reasonable doubt, then you’ll find the defendant guilty of attempted assault in the first degree in the [third] count. If you find that the state has failed to prove any of those elements beyond a reasonable doubt, then you’ll find the defendant not guilty of that charge.”

We agree with the defendant, and the state concedes, that the court did not correctly instruct the jury on attempt to commit assault in the first degree under the subdivision that he was ultimately charged with violating. The subdivision under which the defendant was charged and the subdivision on which the court instructed the jury differ in two respects. First, § 53a-59 (a) (1), the subdivision under which the defendant was charged, requires the state to prove that the injury was attempted “by means of a deadly weapon,” while § 53a-59 (a) (5), the subdivision the court used in its instructions to the jury, requires proof that the injury was attempted “by means of the discharge of a firearm.” Second, § 53a-59 (a) (1) requires the state to prove that the defendant intended to cause serious physical injury, while under § 53a-59 (a) (5), the burden is to prove only an intention to cause physical injury. Our Supreme Court, however, has stated: “If an improper jury instruction is of constitutional magnitude, the burden is on the state to prove harmlessness beyond a reasonable doubt. ... [A] jury instruction that improperly omits an essential element from the charge constitutes harmless error if a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error . . . .” (Internal quotation marks omitted.) State v. Cote, 286 Conn. 603, 626, 945 A.2d 412 (2008). Additionally, this court has stated that “[wjhen a jury is misinstructed on an essential element of a crime and a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed.” (Internal quotation marks omitted.) State v. Youngs, 97 Conn. App. 348, 361, 904 A.2d 1240, cert. denied, 280 Conn. 930, 909 A.2d 959 (2006).

“When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety . . . and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party .... In this inquiry we focus on the substance of the charge rather than the form of what was said not only in light of the entire charge, but also within the context of the entire trial. . . . Moreover, as to unpreserved claims of constitutional error in jury instructions, we have stated that under the third prong of Golding, [a] defendant may prevail . . . only if . . . it is reasonably possible that the jury was misled . . . .” (Citations omitted; internal quotation marks omitted.) State v. Carpenter, 275 Conn. 785, 864-65, 882 A.2d 604 (2005), cert. denied, 547 U.S. 1025, 126 S. Ct. 1578, 164 L. Ed. 2d 309 (2006). With this in mind, we turn to the elements of § 53a-59 at issue and the evidence adduced at trial.

First, as to the element of the statute concerning the type of weapon the state had to prove was used in the attempt to commit assault, our review of the jury instruction as a whole leads us to conclude that the jury was not misled. The jury charge, a written copy of which the jury had during its deliberations, included instructions pertaining to a count for robbery in the first degree that occurred in conjunction with the alleged attempt to commit assault. That portion of the jury charge contained a definition of a deadly weapon that stated in relevant part: “In addition to proving that the defendant committed robbery, as I have defined it, the state must also prove beyond a reasonable doubt that in the course of a commission of a robbery, the defendant was armed with a deadly weapon. Deadly weapon means, for purposes of this case, any weapon whether loaded or unloaded from which a [gun]shot may be discharged. You should note that under this definition a weapon from which a shot may be discharged, including a pistol or a rifle or a shotgun, whether or not actually loaded at the time of the offense, is classified as a deadly weapon, and furthermore, the word ‘armed’ simply requires that the person be—that the weapon be in the defendant’s possession.” This definition, read in the context of not only the whole jury charge, but also the entire evidence, indicates clearly that the jury was not reasonably misled with respect to the misinstruction as to whether a firearm or deadly weapon was used in the alleged attempt to commit assault. This is so especially in light of the fact that the defendant was found guilty of this count of robbery in the first degree and, therefore, found beyond a reasonable doubt to have been armed with a “deadly weapon”—the very same deadly weapon the state alleged the defendant used in the attempt to commit assault.

As for the second deviation in the jury instructions from the operative information, the omission of the word “serious” in regard to the physical injury intended by the defendant, we conclude that this misinstruction is harmless beyond a reasonable doubt because the allegation of serious physical injury was not contested by the defendant and supported by overwhelming evidence. General Statutes § 53a-3 (4) defines “serious physical injury” as “physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . . .” Mere “physical injury,” however, is defined in General Statutes § 53a-3 (3) simply as “impairment of physical condition or pain . . . .” Although frequently it may be difficult to differentiate between the two, such a distinction need be drawn, as a person can be found guilty of assault in the first degree under General Statutes § 53a-59 (a) (1) only if he “causes serious physical injury to another person . . . .” See State v. Rossier, 175 Conn. 204, 207, 397 A.2d 110 (1978).

We have concluded previously that “intent is often inferred from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.” (Internal quotation marks omitted.) State v. Smith, 73 Conn. App. 173, 181, 807 A.2d 500, cert. denied, 262 Conn. 923, 812 A.2d 865 (2002). Here, we conclude that the state’s evidence overwhelmingly supports a finding that the defendant’s intent was to inflict a serious physical injury. There was undisputed evidence that the perpetrator shot at Ali with a firearm. Furthermore, the gunshots were aimed at his midsection and fired at close range. There can be no doubt that such action “creates a substantial risk of death, or . . . serious disfigurement . . . impairment of health or . . . loss or impairment of the function of any bodily organ . . . .” General Statutes § 53a-3 (4). We also note that this evidence went uncontested by the defendant. The defendant’s main argument against the charges at trial was one of misidentification. He did not dispute that a robbery occurred, that a firearm was used in that robbery, that the perpetrator shot at Ali or that the perpetrator’s intent was to cause serious physical injury.

It was on the basis of this unequivocal evidence that the jury found the defendant guilty of attempt to commit assault in the first degree. The court’s misinstruction as to the subdivisions of the statute with which the defendant was charged was harmless beyond a reasonable doubt and did not mislead the jury.

The judgment is affirmed.

In this opinion the other judges concurred.

       The array was of color photographs and contained the photograph of the defendant taken by the New Haven police department after his arrest on April 4, 2005, which was also the same photograph that was in the New Haven Register on April 5, 2005.

       Our Supreme Court has declared that “when determining whether a witness had sufficient time to observe a defendant to ensure a reliable identification ... a good hard look will pass muster even if it occurs during a fleeting glance. ... In particular, we have recognized that a view of even a few seconds may be sufficient for a witness to make an identification . . . and that it is for the trier of fact to determine the weight to be given that identification.” (Citations omitted; internal quotation marks omitted.) State v. Morgan, 274 Conn. 790, 801-802, 877 A.2d 739 (2005).

       Stephenson also testified that there could be other manufacturers of the weapon in question.

       Those manufacturers were Colt, U.S. Military Firearms, Detonic, Marlin, AMT, Para-Ordnance, Kirnber and Sig.

       The weapon used in the robbery of the deli has not been recovered by police.

       The defendant was charged with attempt to commit assault in the first degree under General Statutes §§ 53a-49 and 53a-59 (a) (1). General Statutes § 53a-49 provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or . . . (5) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of the discharge of a firearm.'' (Emphasis added.)

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       At that point, the defendant had not been charged under any particular subdivision of General Statutes § 53a-59.

       In his closing argument, the defendant’s counsel stated: “I suspect that the [robbery] did happen. We deny that my client did this.”


author: PER CURIAM.

text:
    MOTIVA ENTERPRISES, LLC v. TOWN OF STRATFORD ET AL.
    (AC 29181)
    McLachlan, Gruendel and Borden, Js.
    Argued September 12
    officially released November 25, 2008

      Carmine Perri, with whom, on the brief, was Kevin C. Kelly, for the appellant (named defendant).

      David L. Weiss, with whom was John A. Acampora, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The central issue in this appeal is whether the trial court improperly reduced the tax assessment of the plaintiffs real property by giving improper weight to the testimony of the plaintiffs appraiser. In April, 2005, the plaintiff, Motiva Enterprises, LLC, filed an appeal from a tax assessment by the defendant board of assessment appeals of the defendant town of Stratford (town), pursuant to General Statutes § 12-117a,* * requesting a reduction of the tax assessment to the true and actual value of the property. The court found that the town overvalued the plaintiffs property and ordered the assessed value on the grand lists reduced from $13,750,700 to $6,510,400. The town filed a timely appeal.

After examining the record on appeal and considering the briefs and arguments of the parties, we are persuaded that the judgment of the court should be affirmed. Because the court’s memorandum of decision fully addresses the arguments raised in this appeal, we adopt the court’s thorough and well reasoned decision as a statement of the facts and the applicable law on these issues. See Motiva Enterprises, LLC v. Stratford, 50 Conn. Sup. 639, 961 A.2d 485 (2007). Further discussion by this court would serve no useful purpose. See, e.g., White Sands Beach Assn., Inc. v. Bombaci, 287 Conn. 302, 950 A.2d 489 (2008).

The judgment is affirmed.

       The plaintiffs property consists of a gas and oil storage and distribution center on a total of 48.35 acres; 25.67 acres are located in Stratford, and the remaining land is located in Bridgeport. Only the portion of the land in Stratford is the subject of this dispute.

        The town also claims that the trial court improperly “relied upon speculation when determining the value of the subject property [and improperly] concluded that the Stratford portion could not be more valuable than the Bridgeport portion.” The court’s memorandum of decision shows only that the court noted that the Bridgeport property was not offered as a comparable sale, recounted the assessed value of the Bridgeport property and the improvements that it contained and stated that “[t]here is nothing to indicate that the [Stratford portion] is more valuable than the Bridgeport portion of [the plaintiffs] facility.”
      Even if we assume arguendo that the court relied on these findings, we cannot say that they are clearly erroneous. The court had uncontroverted evidence of the assessed value of the Bridgeport property and the improvements on both properties. The town has failed to show that “there is no evidence in the record to support” the court’s findings and failed to provide “the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) United Technologies Corp. v. East Windsor, 262 Conn. 11, 23, 807 A.2d 955 (2002).

       The plaintiff appealed to the board of assessment appeals from the valuation by the town assessors, but the board elected not to conduct a hearing. The plaintiff filed its application to appeal within two months of the board’s action. See General Statutes § 12-117a.

       The plaintiff subsequently amended its application to appeal to include the tax assessments for 2005 and 2006. See General Statutes § 12-117a.


author: ROBINSON, J.

text:
    STATE OF CONNECTICUT v. JASON B.

    (AC 28580)
    McLachlan, Robinson and Hennessy, Js.

      Argued September 11
    officially released November 25, 2008

      Michael Zariphes, special public defender, for the appellant (defendant).

      Adam E. Mattei, special deputy assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Joseph J. Harry, senior assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to use the defendant’s full name or to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

ROBINSON, J.

The defendant, Jason B., appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a). On appeal, the defendant claims that (1) the evidence was insufficient to sustain his conviction and (2) the court’s failure to grant his motion for a new trial was a violation of his due process rights. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, Y, and the defendant were married in September, 1999, and had a daughter, A, in August, 2002. Y and the defendant met while they were both members of the Marine Coips. Y filed for divorce in October, 2005, and their divorce became final in February, 2006.

On February 21, 2006, the defendant repeatedly contacted Y and requested to meet with her. They arranged to meet at a Dunkin’ Donuts that evening but eventually met at a Borders bookstore at about 8:30 p.m. They later walked to a nearby Boston Market for dinner, where the defendant asked Y to have sex with him. She refused, and he asked her to join him in his car for a cigarette. She got into the car, where the defendant renewed his requests for sex, which Y continued to turn down. She tried to get out of the car at least once, but the defendant pulled her back in by the arm. The defendant then informed Y that he had withdrawn all of the money from their joint bank account, approximately $6000, which was all of Y’s savings. He also told her that he was going to make her life very difficult, that he was going to take A, that she would never see A again and that he was going to hurt everyone that she knew. He told Y that if she slept with him, he would give back the money and leave her alone. Y again tried to get out of the car, but the defendant pulled her back in.

The defendant then drove off with Y in the car, and Y began screaming out the window; at some point, he had locked all of the doors. He eventually stopped the car in a dark, wooded area with no houses nearby. He climbed from the driver’s side to the passenger’s side of the car, where Y was sitting, and began touching her between her legs. Y testified that she tried to fight him off but that she was unable to because he had her left arm pinned behind her head and he was stronger than she was. At one point, he also took her cellular telephone from her and threw it in the backseat. He also repeatedly put his hand over her mouth to the point where she could not breathe, and he stopped only when she told him she would not fight him any more.

The defendant eventually climbed off of Y, started the car and told her he would bring her home. Instead, while he was driving, he unzipped his pants, removed his penis and ordered Y to perform fellatio. She began to do so but began to feel sick and so asked the defendant to stop the car. He stopped the car, and she opened the car door and vomited on the side of the road. The defendant started the car again and continued to drive; Y did not know where she was or what town she was in. Y asked to use a bathroom, and the defendant stopped the car again and she got out to urinate. Y returned to the car and the defendant instructed her to lie down as he reclined the seat. The defendant then began touching Y’s vagina, asking her if she liked it. She told him she wanted him to stop, and he said: “No you don’t.” He took off his belt, flexed it and ordered her into the backseat of the car. They both got into the backseat, and the defendant penetrated the victim’s vagina and anus with his penis. After he stopped, the defendant returned to the driver’s seat of the car and drove away. He eventually returned to the Boston Market, where Y had left her car, and dropped her off. Y got into her car and drove home. Y’s mother, who was at home, called 911, and, after Y was taken to a hospital, she told the emergency room physician that her former husband had forced her to have sex with him. Additional facts will be set forth where necessary.

I

The defendant claims that the court erred in failing to grant his motion for a judgment of acquittal because there was insufficient evidence to convict him of (1) sexual assault in the first degree and (2) unlawful restraint in the first degree. He made two motions for a judgment of acquittal, one after the state had rested its case and the other after the defense had presented its evidence. The court denied both of the defendant’s motions. We begin by setting forth our standard of review for sufficiency of the evidence claims.

“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proven beyond a reasonable doubt. . . . If it is reasonable and logical for the juiy to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all of the elements of the crime charged beyond a reasonable doubt. . . .

“[W]e 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. . . . Rather, we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. Pauling, 102 Conn. App. 556, 563-64, 925 A.2d 1200, cert. denied, 284 Conn. 924, 933 A.2d 727 (2007).

A

The defendant first challenges the sufficiency of the evidence to support his conviction of sexual assault in the first degree under § 53a-70 (a) (l). In particular, he argues that the state failed to prove the element of use of force because there was no physical evidence that he had put his hands on the victim or physically or mentally abused her and that Y’s testimony in this regard concerned acts that were physically impossible.

The issue of whether force was used presents a question of fact for the jury. See State v. Coleman, 52 Conn. App. 466, 469, 727 A.2d 246, cert. denied, 249 Conn. 902, 732 A.2d 776 (1999). “[Nothing ... in our law, suggests that proof of physical violence is necessary to establish that the sexual intercourse or contact has been compelled by the use of force or a threat of the use of force.” (Internal quotation marks omitted.) State v. Mahon, 97 Conn. App. 503, 510, 905 A.2d 678, cert. denied, 280 Conn. 930, 909 A.2d. 958 (2006). Furthermore, “we have consistently held that one also may be guilty of sexual assault in the first degree if one uses one’s physical size or strength to threaten another to submit to sexual intercourse and that such threat may be expressed or implied.” (Emphasis in original.) Id., 512.

We believe that there was sufficient evidence of the use of force for the jury to have concluded that the defendant was guilty of sexual assault in the first degree. Although the record does not reveal the height or weight of the defendant or the victim, Y testified that the defendant was stronger than she was. The jury reasonably could have concluded that the defendant’s removal of his belt, his flexing of it and his ordering Y into the backseat of the car satisfied the use of force requirement. In fact, Y testified that she believed at that moment that he was going to kill her and leave her in the wooded area. In addition, the victim and the emergency room physician testified that there was dried blood on her nose, which was consistent with her story that the defendant had his hand over her mouth and nose for an extended period of time. Accordingly, the defendant’s claim that the evidence was insufficient to sustain his conviction of sexual assault in the first degree must fail.

B

The defendant also challenges the sufficiency of the evidence to support his conviction of unlawful restraint in the first degree under § 53a-95 (a). The defendant claims that the state failed to prove beyond a reasonable doubt that he restrained Y against her will because Y voluntarily accompanied him into the vehicle, he allowed Y to both open the car door to vomit and to leave the car to urinate, and Y at no point called 911.

The jury was free to credit the testimony of Y over the defendant’s version of the events. Here, construing the evidence in the light most favorable to sustaining the verdict, we conclude that the jury could reasonably have found that Y tried to get out of the car on several occasions, but each time the defendant grabbed her by the arm and pulled her back. Additionally, Y testified that she did not attempt to run away when the defendant let her out of the car to urinate because “there was nowhere to go,” as they were parked in a remote and unfamiliar wooded area. Y also testified that she struggled against the defendant while he held his hand over her face to prevent her from breathing, pinned her arm behind her head and climbed on top of her against her will. The jury could have reasonably found the defendant guilty of unlawful restraint in the first degree on these facts.

II

The defendant next claims that the court abused its discretion in denying his motion for a new trial. The defendant filed a written motion for a new trial, pursuant to Practice Book §§ 42-53 and 42-54, on October 13, 2006, alleging that he was constitutionally entitled to a new trial because the court denied him a requested bathroom break during the playback of certain testimony. As a result of the corut’s denial, the defendant claims that he had no choice but to take a paper cup from the defense table, unzip his pants and attempt to ruinate into the cup. The defendant alleges that these actions prejudiced the jury to such an extent that he should be given a new trial. We decline to review the defendant’s claim due to an inadequate record.

A hearing was held on the defendant’s motion on October 23, 2006, and the court, Rodriguez, J., denied the defendant’s motion for a new trial. The defendant asserts that it was judicial misconduct for the court to deny him the opportunity to use the bathroom, and, as a result, he was prejudiced to the extent that he was denied his due process right to a fair trial because the jury witnessed his attempt to urinate into a cup under the defense table and inevitably held this against him.

“A motion for a new trial is addressed to the sound discretion of the trial court and is not to be granted except on substantial grounds.” (Internal quotation marks omitted.) State v. Newsome, 238 Conn. 588, 628, 682 A.2d 972 (1996). “The general rule in this state is that a mistrial should be granted only when it is apparent to the court that some occurrence during the trial has so prejudiced a party that he can no longer receive a fair trial . . . .” (Internal quotation marks omitted.) State v. Boone, 15 Conn. App. 34, 48, 544 A.2d 217, cert. denied, 209 Conn. 811, 550 A.2d 1084 (1988).

We are unable to review the defendant’s claim because we are unable to discern from the record what the jury did or did not witness. The present record is devoid of competent evidence that the jury was aware that the defendant unzipped his pants and attempted to urinate into a cup while sitting at the defense table. No hearing was held on the issue, and the jury was not canvassed to determine what, if anything, it saw. We cannot speculate as to what the jury might have seen. The record must demonstrate that the allegedly prejudicial actions took place in front of the jury for an allegation of judicial misconduct even to be considered. See State v. Colon, 272 Conn. 106, 368, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005); see also State v. Lopez, 93 Conn. App. 257, 271, 889 A.2d 254 (2006), aff'd, 281 Conn. 797, 917 A.2d 949 (2007). Therefore we decline to review this claim, as it was the defendant’s responsibility to provide an adequate record for review on appeal. See Practice Book §§ 60-5 and 61-10.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also forced Y to swallow a valium pill and to smoke marijuana against her will.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or third person . . .

       Although both Y and the defendant were former Marines, the jury reasonably could have credited Y’s testimony that the defendant was stronger than she was; the fact that both were former Marines does not make Y’s testimony not credible.

       The defendant’s other argument is that it would have been physically impossible for him to force the victim to perform fellatio while he was driving a vehicle with a stick shift “unless the defendant had three arms.” During oral argument, the defendant’s attorney attempted to further substantiate the physical impossibility claim by adding into the mix the acts of throwing her telephone into the backseat and forcing her to take a valium pill. The fatal flaw in this argument is that the victim never alleged that the defendant performed all of these acts simultaneously; the defendant in fact could have performed all of these acts consecutively over a short period of time. In addition, it is not clear if the jury found the defendant guilty of having committed oral, anal or vaginal sex, and the defendant’s physical impossibility argument pertains only to the circumstances surrounding the oral sex.

       General Statutes § 53a-95 (a) provides: “A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.”

       The defendant’s attorney himself admitted at the hearing on the motion for a new trial that it was unclear even to him what exactly the jury had seen. He stated: “[I]t’s pretty clear to me that the jury had an indication or saw what occurred. I don’t know what they saw. I don’t know what they saw. All I know is that the defendant clearly prejudiced himself as a result of having to use the facilities.” (Emphasis added.)


author: FLYNN, C. J.

text:
    STATE OF CONNECTICUT v. JEFFREY MAURO
    (AC 28622)
    Flynn, C. J., and Bishop and Harper, Js.

      Argued October 16
    officially released November 25, 2008

      Richard Emanuel, with whom, on the brief, was Robert M. Casale, for the appellant (defendant).

      Melissa L. Streeto, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Donald S. MacCalmon, assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The defendant, Jeffrey Mauro, appeals from the judgment of conviction, rendered following a trial to the court, of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (2), public indecency in violation of General Statutes § 53a-186 (a) (2) and disorderly conduct in violation of General Statutes § 53a-182 (a) (2). On appeal, the defendant challenges the validity of the waiver of his right to a jury trial. We conclude that the record does not contain evidence demonstrating that the defendant knowingly, intelligently and voluntarily waived his right to be tried by a jury and, accordingly, reverse the judgment of conviction.

The relevant factual and procedural history of the defendant’s appeal are as follows. On March 5, 2006, the defendant was arrested and charged with sexual assault in the fourth degree, public indecency and disorderly conduct on the basis of a criminal complaint filed by a former employee of the defendant. The defendant was released on his promise to appear in court, and an initial court date was set for March 14, 2006. On March 13, 2006, attorney William H. Cashman filed an appearance via facsimile on behalf of the defendant and requested a continuance to March 28, 2006. The case eventually was continued to June 14,2006. On that date, the prosecutor informed the court that the parties had reached an agreed disposition. Because the victim had not been consulted as to the terms of the proposed plea bargain, the court continued the case until July 5, 2006.

On July 5, 2006, the prosecutor indicated to the court that the victim had been informed of the plea agreement and that the case could move forward. The following colloquy then occurred between the court, Esposito, J., and Cashman:

“The Court: And your client’s going to accept the plea today. Is that correct, counsel?
“[Defense Counsel]: No, Your Honor. We’re going to enter a plea of not guilty.
“The Court: Okay. Not guilty pleas, jury election.
“[Defense Counsel]: Court actually, Your Honor, court election.”

The court thereafter assigned the case to the pretrial docket. The defendant’s trial commenced December 7, 2006. Prior to the start of evidence, the court, Licari, J., stated: “The court has been assigned the matter of state versus Jeffrey Mauro for a court trial. I understand, counselors, that in front of some other judge that [the defendant] has been canvassed on that issue, so the court need not repeat it?” Cashman responded: “That’s correct, Your Honor.” Following a hearing on defense motions, Judge Licari, in a second effort to establish for the record that there had been an adequate canvass and waiver by the defendant, asked Cashman and the prosecutor, Donald S. MacCalmon, the following question:

“The Court: I don’t know when the canvassing concerning the waiver of the defendant’s jury right was made because it’s not noted on the court docket from across the street, but you assure the court, Mr. Cashman and Mr. MacCalmon, that that was, in fact, done and need not be done by this court?
“[Defense Counsel]: Yes, Your Honor. It was done on the same day that we made the election.
“[The Prosecutor]: Judge, I can’t speak to that. I was not present, but I’m—I’m told that it was.
“The Court: All right. Well, Mr. Cashman, you’re representing to me that’s—and you’re not requesting that it be done again?
“[Defense Counsel]: No, Your Honor.
“The Court: All right. And he has [pleaded] not guilty to the charges already. This is a new information although it contains the same charges. Pro forma not guilty and courtside election just to protect the record here, Mr. Cashman?
“[Defense Counsel]: Yes, Your Honor.
“The Court: All right. Again, without the need to recanvass on the waiver of jury right?
“[Defense Counsel]: Correct.”

Trial of the matter proceeded and evidence concluded on December 7, 2006. On the following day, the court issued its oral decision in which it found the defendant guilty on all three counts of the information. This appeal followed.

The defendant’s sole claim on appeal is that the purported waiver of his right to a jury trial was invalid because the record does not reflect that he ever personally affirmed, either in writing or orally, his desire to waive this right. Because the defendant failed to raise this issue at trial, he seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We will review the claim pursuant to Golding because the record is adequate for review and the claim is of constitutional magnitude alleging the violation of a fundamental right.

“The right to a jury trial in a criminal case is among those constitutional rights which are related to the procedure for the determination of guilt or innocence. The standard for an effective waiver of such a right is that it must be knowing and intelligent, as well as voluntary. . . . Relying on the standard articulated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), we have adopted the definition of a valid waiver of a constitutional right as the intentional relinquishment or abandonment of a known right. . . . This strict standard precludes a court from presuming a waiver of the right to a trial by jury from a silent record. ... In determining whether this strict standard has been met, a court must inquire into the totality of the circumstances of each case. . . . When such a claim is first raised on appeal, our focus is on compliance with these constitutional requirements rather than on observance of analogous procedural mies prescribed by statute or by the Practice Book.” (Citations omitted; internal quotation marks omitted.) State v. Ouellette, 271 Conn. 740, 751-52, 859 A.2d 907 (2004).

We conclude that the present appeal is controlled by our Supreme Court’s recent decision in State v. Gore, 288 Conn. 770, 955 A.2d 1 (2008), affirming this court’s decision in State v. Gore, 96 Conn. App. 758, 901 A.2d 1251 (2006). In Gore, defense counsel represented to the court that, following a “lengthy discussion” he had with the defendant, the defendant would change his election from a jury trial to a court trial. State v. Gore, supra, 774. The court accepted defense counsel’s representation without asking the defendant whether he consented to the waiver, and the defendant never personally acknowledged the waiver on the record, either in writing or orally. Id., 774-75. Following his conviction, the defendant appealed, claiming that the waiver of his right to a jury trial had been invalid. Id., 775.

Following this court’s reversal of the judgment and remand of the case for a new trial; see State v. Gore, supra, 96 Conn. App. 769; our Supreme Court granted certification to appeal; see State v. Gore, 280 Conn. 937, 901 A.2d 1251 (2006); and considered the issue of whether defense counsel may waive validly a defendant’s right to a jury trial when the defendant does not personally waive the right on the record. State v. Gore, supra, 288 Conn. 772. The court stated succinctly its holding: “We conclude that a defendant personally must waive the fundamental right to a jury trial, and that counsel may not make that decision as a matter of trial strategy. We also conclude that there must be some affirmative indication from the defendant himself or herself on the record that he or she knowingly, intelligently and voluntarily has decided to waive a jury trial. In other words, the defendant’s passive silence in this case while defense counsel purported to waive the defendant’s right to a jury trial is not sufficient to demonstrate a knowing, intelligent and voluntary waiver.” Id., 777-78.

The record in the present appeal similarly is devoid of any evidence that the defendant personally waived his right to a jury trial, either in writing or orally. Under the rule expressed in Gore, defense counsel’s purported waiver of the defendant’s right to a jury trial was not sufficient to constitute a valid waiver of this fundamental right. The state argues that Gore is distinguishable because the court in the present case repeatedly asked whether the defendant had been canvassed specifically as to his right to a jury trial. The state contends that but for defense counsel’s assurances to the court that the defendant had indeed been canvassed, the court would have canvassed the defendant properly. The record reflects that the court was misled, albeit apparently unintentionally, by the representations of both defense counsel and the prosecutor to the effect that the defendant had been canvassed previously. However, as is made clear in Gore, a defendant’s right to a jury trial cannot be waived by defense counsel only; this remains true no matter how many attempts defense counsel may make to waive the right or whether counsel makes mistaken representations to the court that a canvass has been made by another judge and that the defendant himself has made a valid waiver.

For a defendant’s waiver of his fundamental right to a jury trial to be knowing, voluntary and intelligent, it must be made personally by the defendant, whether in writing or orally. Because the record does not demonstrate that the defendant made such an affirmation here, the purported waiver of his right to a jury trial was invalid.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.