text:
    STATE OF CONNECTICUT v. JONATHAN BRADLEY
    (12942)
    Landau, Schaller and Freedman, Js.

      Argued March 20
    decision released August 29, 1995

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

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael A. Pepper, assistant state’s attorney, for the appellee (state).
   LANDAU, J.

The defendant appeals from the judg-

ment of conviction, after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), carrying a pistol without a permit in violation of General Statutes § 29-35, and criminal possession of a firearm in violation of General Statutes § 53a-217 (a). On appeal, the defendant claims that the trial court improperly (1) denied his request for a continuance to obtain new counsel, (2) denied his motion to set aside the verdict of guilty of carrying a pistol without a permit and criminal possession of a firearm because the state failed to prove the element of operability beyond a reasonable doubt, (3) denied his motion to set aside the verdict of guilty of carrying a pistol without a permit and criminal possession of a firearm because the verdict was inconsistent with the guilty verdict of robbery in the first degree pursuant to § 53a-134 (a) (4), and (4) denied his motion to dismiss the second part of the information due to the clerk’s failure to notify him of its content before the trial began as required by Practice Book § 648. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On August 2, 1992, the defendant, wearing a face mask, approached a parking lot attendant at the Broadway Parking Lot in New Haven. The defendant pointed a silver colored handgun at the attendant, took approximately $60 and fled on foot. The attendant called the police. Officers patrolling the immediate vicinity observed the defendant running away. After a brief pursuit, the police apprehended the defendant who was hiding in a shed. The police recovered a black face mask and $66 but did not find the handgun.

Toneka Home saw the defendant drop something as he fled from the police. She recovered the object, which was a silver colored .40 caliber semiautomatic pistol with a black handle. Home sold the gun to a dmg dealer and four days later, upon request by the police, retrieved it. The police tested the gun and found it to be operable. At trial, Home positively identified the gun as the same one the defendant had dropped.

On August 18,1992, the trial court appointed Attorney Michael Moscowitz as special public defender to represent the defendant. The case was set down for trial on July 22, 1993. On that date, two state’s witnesses were unavailable and the court continued the start of the trial until August 4, 1993. The defendant then made an oral motion for the trial court to assign new legal counsel to replace Moscowitz and the court denied his motion.

On August 4, 1993, the day the trial was to begin, Attorney Max Brunswick appeared in court. He informed the court that the defendant’s mother wanted to hire him to represent the defendant. Brunswick had not yet filed an appearance. Brunswick stated that he would do so only if the court granted the defendant a continuance until August 16 or 17. Brunswick told the court that he needed the continuance because he was scheduled to begin a civil trial that would last approximately one week, and that he needed time to prepare the defendant’s case for trial. The court offered to delay jury selection for one day, but Brunswick refused. The court denied the continuance.

The state charged the defendant with two counts of robbery, carrying a pistol without a permit and criminal possession of a firearm. On July 13, 1993, pursuant to Practice Book § 619, the state filed a part B information charging the defendant with being apersistent dangerous felony offender in violation of General Statutes § 53a-40 (a) and with being a persistent serious felony offender in violation of General Statutes § 53a-40 (b). Upon conviction, the defendant entered a plea of nolo contendere to the part B information. This plea was conditional on his right to appeal the denial of his motion to dismiss the part B information. See General Statutes § 54-94a; Practice Book § 4003. This appeal followed.

I

The defendant first claims that he was deprived of his constitutional right to be represented by counsel of his choice because the trial court improperly denied his request for a continuance to obtain new counsel on the day his trial was scheduled to begin. He argues that the trial court acted unreasonably and arbitrarily in light of the information available to it in denying the continuance and, therefore, abused its discretion. We disagree.

Our review of a trial court’s decision to grant or deny a continuance is limited to whether the court abused its discretion. State v. Hamilton, 228 Conn. 234, 239, 636 A.2d 760 (1994). An abuse of discretion must be proven by the appellant by showing that the denial of the continuance was unreasonable or arbitrary. Id., 240. Our assessment of the reasonableness of the trial court’s exercise of discretion is limited to a consideration of those factors on the record known to the court at the time it rendered a decision. Id., 241-42. We must afford the trial court every reasonable presumption in favor of the proper exercise of its discretion. Id., 240.

The defendant makes two arguments to support his claim that the trial court acted unreasonably and arbitrarily when it denied his request for a continuance to obtain new counsel. He first argues that any inconvenience to the court in granting the continuance would have been minimal and therefore it should have been granted. He offers the following reasons in support of this argument: jury selection had not yet begun, backup cases were available, and the continuance was for a specified duration of only twelve or thirteen days. We find this argument unpersuasive.

The question of whether, and to what degree, a trial court is inconvenienced by a continuance can be answered only by the court itself. In re Mongillo, 190 Conn. 686, 691, 461 A.2d 1387 (1983). “Our judicial system cannot be controlled by the litigants and cases cannot be allowed to drift aimlessly through the system. . . . Judges must be firm and create the expectation that a case will go forward on the specific day that it is assigned.” Id. Moreover, whether jury selection had begun is not determinative of whether the court’s denial of the continuance was arbitrarily refused. Motions for continuance on the eve of trial are disfavored. See, e.g., State v. Robinson, 227 Conn. 711, 726, 631 A.2d 288 (1993); Sekou v. Warden, 216 Conn. 678, 686, 583 A.2d 1277 (1990).

The defendant next argues that the court acted unreasonably in denying the continuance because he had a “specific, articulate objection” to Moscowitz’ performance. In light of this information, he claims, the continuance should have been granted to allow him to obtain new counsel. The defendant also argues that Brunswick was “ready, willing and able” to replace Moscowitz.

Whether there was any merit to these claims regarding Moscowitz was for the trial court to decide. State v. Watson, 198 Conn. 598, 610, 504 A.2d 497 (1986). Prior to the start of jury selection, the court heard from the defendant and Moscowitz. Although the defendant claimed that he was not able to communicate effectively with Moscowitz, that Moscowitz never visited him, and that Moscowitz was unprepared, Moscowitz presented a different version of their relationship. Moscowitz told the court that he had visited the defendant in jail and had discussed the case with him on several occasions. The defendant also told the court that he had filed a grievance against Moscowitz. The court then attempted, unsuccessfully, to ascertain whether any grievance had actually been filed with the statewide grievance committee, and eventually denied the defendant’s oral motion to terminate Moscowitz. After a review of the court’s inquiry into the defendant’s objection to Moscowitz, we are unconvinced that the trial court was unreasonable or arbitrary in its decision not to terminate Moscowitz. Finally, the argument that the continuance should have been granted because Brunswick was “ready, willing and able” to represent the defendant is without substance. The record clearly shows that Brunswick had not yet filed an appearance and refused to do so unless the court granted the continuance.

For the previously stated reasons, the defendant has failed to establish that the trial court acted unreasonably or arbitrarily in denying his request for a continuance. Accordingly, we conclude that the trial court did not abuse its discretion.

II

The defendant next claims that the trial court improperly denied his motion for judgment of acquittal and to set aside his conviction of carrying a pistol without a permit and criminal possession of a firearm. He argues that there was insufficient evidence presented at trial to prove beyond a reasonable doubt the element of opera-bility, which is required for both crimes.

As a threshold matter, we note that the defendant incorrectly assumes that operability of a weapon is an element of the crime of carrying a pistol without apermit. To obtain a conviction under § 29-35, the prosecution need prove only that the accused (1) carried a pistol while outside a dwelling or place of business and (2) that he did not have a permit to do so. State v. Delossantos, 211 Conn. 258, 272-76, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989). Therefore, the defendant’s claim of insufficient evidence to prove operability, as it pertains to his conviction of carrying a pistol without a permit, is without merit. The claim is appropriate, however, regarding his conviction for criminal possession of a firearm under § 53a-217.

“In reviewing a jury verdict that is challenged on the ground of insufficient evidence, we employ a two part analysis. We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. . . . The evidence must be construed in a light most favorable to sustaining the jury’s verdict. . . . State v. Ford, 230 Conn. 686, 692, 646 A.2d 147 (1994).” (Internal quotation marks omitted.) State v. Garcia, 37 Conn. App. 619, 623-24, 657 A.2d 691 (1995). In reaching its verdict, the jury can draw reasonable and lbgical inferences from the facts proven and from other inferences drawn from the evidence presented. Our review is a fact based inquiry limited to a determination of whether the jury’s inferences drawn were so unreasonable as to be unjustifiable. Id.

Restated, the issue raised in this claim is whether the jury could have drawn reasonable inferences from the evidence to enable it to conclude, beyond a reasonable doubt, that the gun that the defendant possessed was operable. The defendant correctly points out that the police did not obtain custody of the gun and test its operability until three days after the defendant allegedly possessed it. He argues that because the gun was in the possession of an unidentified drug dealer, the jury could not reasonably find it was operable at the time of the crime. The state contends that the defendant’s convictions were based on reasonable inferences drawn from the evidence. We agree with the state.

The operability of a firearm can be proven either by circumstantial or direct evidence. State v. Hopes, 26 Conn. App. 367, 376, 602 A.2d 23, cert. denied, 221 Conn. 915, 603 A.2d 405 (1992). The evidence presented established that the gun was operable when it was tested by the police after it was retrieved by Home. The guilty verdict implies that the jury drew an inference from that evidence and found that the gun was also operable at the time when the defendant possessed it. If we review the evidence in the light most favorable to sustaining the jury's finding of operability, we cannot conclude that the jury’s inference was unsupported or unreasonable. The defendant contends that the same evidence could lead the jury to infer that the gun was inoperable when the defendant possessed it and that it was repaired before the police tested it. Our task on appeal is not to second guess the jury’s findings of fact. State v. Mejia, 233 Conn. 215, 224, 658 A.2d 571 (1995). The jury must determine the facts by weighing the evidence presented at trial. State v. Scales, 38 Conn. App. 225, 229, 660 A.2d 860 (1995). We must construe the evidence in the light most favorable to sustaining the facts found by the jury, and then decide whether the cumulative effect of that evidence supports the conviction. State v. Garcia, supra, 37 Conn. App. 624.

We conclude that the evidence presented was sufficient to enable the jury reasonably to infer that the gun was operable at the time the defendant possessed it.

Ill

The defendant next claims that the trial court improperly denied his motion to set aside the verdicts of guilty of carrying a pistol without a permit and criminal possession of a firearm. He argues that these verdicts are inconsistent with the verdict of guilty of robbery in the first degree in violation of § 53a-134 (a) (4).

He contends that in order for the jury to have found him guilty of carrying a pistol without a permit and criminal possession of a firearm, it had to have determined that the gun that he possessed was operable. He further asserts that, in finding him guilty of robbery pursuant to § 53a-134 (a) (4), the jury necessarily found that the gun was inoperable. This is so, he claims, because the jury was instructed that it could convict on robbery pursuant to either § 53a-134 (a) (2) or § 53a-134 (a) (4), but not both. Because the jury chose to convict under the latter, we must necessarily infer that the jury found that the gun was inoperable, in that operability is a necessary element of robbery pursuant to § 53a-134 (a) (2).

The defendant argues that operability and inoperability are mutually exclusive elements and that the convictions cannot stand in light of the holding in State v. King, 216 Conn. 585, 593-94, 583 A.2d 896 (1990), on appeal after remand, 218 Conn. 747, 591 A.2d 813 (1991). The state claims that the defendant has misapplied King and, further, that our law permits inconsistent verdicts. We agree.

In King, our Supreme Court held that jury verdicts convicting a defendant of two offenses each of which requires a finding of a mutually exclusive element for conviction must be set aside. Id. The defendant correctly acknowledges that operability is an essential element of criminal possession of a firearm. Therefore, for King to apply, inoperability must be an essential element of robbery pursuant to § 53a-134 (a) (4). Because inoperability is not an element of that crime, the holding of King does not apply.

Any remaining claim of inconsistent verdicts is controlled by well established law. “On several occasions, [the Supreme Court has] refused to reverse a verdict of guilty on one count where that verdict appeared to be inconsistent with a verdict of acquittal on another count. See State v. Jackson, 194 Conn. 241, 243-44, 478 A.2d 1018 (1984) (inconsistent verdicts on robbery charges arising out of same incident upheld) State v. Bailey, 209 Conn. 322, 344, 551 A.2d 1206 (1988). “The law permits inconsistent verdicts because of the recognition that jury deliberations necessarily involve negotiation and compromise. Steadman v. United States, 358 A.2d 329, 332 (D.C. App. 1976).” State v. Patterson, 31 Conn. App. 278, 304-305, 624 A.2d 1146 (1993), rev’d on other grounds, 230 Conn. 385, 645 A.2d 535 (1994).

We conclude that the trial court properly allowed the convictions for carrying a pistol without a permit and criminal possession of a firearm to stand.

IV

The defendant’s final claim is that he is entitled to a dismissal on the part B information, charging him with being a persistent dangerous felony offender and a persistent serious felony offender, because the clerk failed to notify him prior to the start of trial of the contents of the part B information as required by Practice Book § 648. Section 648 provides: “Prior to the time the defendant enters a guilty plea or, if the defendant pleads not guilty, prior to the commencement of trial, the clerk shall notify the defendant, in the absence of the judicial authority, of the contents of the second part of the information. The clerk shall enter on the docket the time and place of the giving of such notification and, where necessary, shall include entry thereof in the judgment file.” The defendant argues that he was prejudiced by the clerk’s failure to comply strictly with § 648 because he was deprived of the opportunity to voir dire the jurors as to all the charges brought against him.

In this case, the record reveals that the defendant had actual notice of the persistent felony offender charges contained in the part B information prior to the August 4, 1993, start of trial on the underlying charges. The state filed the part B information on July 13, 1993. The defendant’s attorney received a copy of this information directly from the prosecutor on July 22, 1993. The state then filed an amended long form information on July 22, 1993. The defendant pleaded not guilty to the underlying charges on the first part and the clerk did not read the second part. On that date, the court informed the defendant on the record: “Of course, if there is a guilty verdict on these charges, there is a part B of this information that’s been filed that would require a relatively brief proceeding following the guilty verdict.” Later in that same proceeding, the court added: “On the other hand, if you are convicted, my rough estimate that if you are convicted on these charges and then you are also convicted of being a persistent dangerous felony offender and being a persistent serious felony offender, my rough estimate of the exposure you will have, I think it adds up to something in the area of forty-five years in prison, which is, you know, a rather substantial period of time.” In summary, we are convinced that the defendant had actual notice of the part B information prior to the start of his trial and was therefore not prejudiced during jury voir dire.

We conclude that because the defendant had actual notice of the part B information, the clerk substantially complied with Practice Book § 648.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 provides in pertinent part: “(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. . . .”

       General Statutes § 29-35 provides in pertinent part: “(a) No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. ...”

       General Statutes § 53a-217 provides in pertinent part: “(a) A person is guilty of criminal possession of a firearm or electronic defense weapon when he possesses a firearm or electronic defense weapon and has been convicted of . . . a class B felony, except a conviction under section 53a-86, 53a-122 or 53a-196b .... For the purposes of this section, ‘convicted’ means having a judgment of conviction entered by a court of competent jurisdiction.”

         The record does not reveal why the trial court allowed Brunswick to speak on the record for the defendant since he had not yet filed an appearance as required by Practice Book § 630. We presume, however, that the court relied on the waiver provision of that section: “Except by leave of the judicial authority, no attorney shall be permitted to appear in court or to be heard in behalf of a defendant until his appearance has been so entered. . . .”

       Although the defendant was initially charged with two counts of robbery in the first degree, namely § 53a-134 (a) (2) and § 53a-134 (a) (4), the jury was instructed that it could convict on only one of these counts. The jury acquitted the defendant of violating § 53a-134 (a) (2), and convicted him of violating § 53a-134 (a) (4).

       Although the defendant asserts that he was deprived of his “constitutional right to counsel of his choice,” he neither cites nor presents an analysis pursuant to the federal or Connecticut constitutions. We, therefore, decline to analyze any constitutional claims. We do, however, review this claim under an abuse of discretion analysis.

      Prior to the start of trial on August 4, 1993, the following colloquy took place:

        “Moscowitz: I will indicate that Mr. Bradley this morning indicated to me that he did file a grievance against me. I have not seen the grievance itself. “The Court: What do you mean he filed a grievance?
      “Moscowitz: Well, he has indicated that.
      “The Court: Where did he file it?
      “Moscowitz: I’m not quite sure, Your Honor.
      “The Court: What did he do with it? What is it?
      “Moscowitz: He indicated that he sent it to statewide Hartford “The Court,: Statewide grievance committee?
      “Moscowitz: That’s correct, Your Honor. That is what he has indicated to me, I was just notified of it by him this morning.
      “The Court: He is requesting the statewide grievance committee to take this preliminary action against you, is that what it is?
      “Moscowitz: I haven’t read it, so I don’t know.
      “The Court: Where is it?
      “Moscowitz: I don’t know.
      “The Court,: Have you got a copy of it?
      “Moscowitz: I don’t have a copy of it.
      “The Court: Does anybody?
      “The Defendant: Yes, I have a copy of it.
      “Moscowitz: Mr. Bradley indicates he has a copy.
      “Brunswick: He didn’t bring it with him.”

       The term firearm as it applies to § 53a-217 is defined under § 53a-3 (19): “ ‘Firearm’ means any sawed-off shotgun, machine gun, rifle, shotgun, pistol, revolver or other weapon, whether loaded or unloaded from which a shot may be discharged.” (Emphasis added.)

       We first note that the defendant again incorrectly assumes that operability of a weapon is an element of the crime of carrying a pistol without a permit (see part II of this opinion). He is correct, however, in his contention that operability is an element of criminal possession of a firearm. We therefore limit our discussion to whether the verdict of guilty of criminal possession of a firearm is inconsistent with the guilty verdict of robbery in the first degree pursuant to § 53a-134 (a) (4).

       In his brief, the defendant claims that because robbery under § 53a-134 (a) (2) requires a finding that the defendant used an operable firearm, a jury verdict of not guilty means that the jury determined that the defendant possessed an inoperable firearm. He further claims that the fact that the jury chose to convict him of robbery under § 53a-134 (a) (4), which requires proof of operability, supports this reasoning. His logic is flawed for two reasons. First, an acquittal under § 53a-134 (a) (2) does not necessitate a finding that the defendant possessed an inoperable firearm. Second, a guilty verdict under § 53a-134 (a) (4) does not require proof of operability. A conviction can result whether the defendant possessed a gun. All that is required is that the defendant “displays or threatens the use of what he represents by his words or conduct to be a [gun].” General Statutes § 53a-134 (a) (4).


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. LUIS RIVERA
    (12565)
    O’Connell, Landau and Heiman, Js.

      Argued June 1
    decision released September 5, 1995

      Suzanne Zitser, assistant public defender, for the appellant (defendant).

      SusannE. Gill, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John Blawie, assistant state’s attorney, for the appellee (state).
   LANDAU, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of larceny in the first degree in violation of General Statutes §§ 53a-119 (8) and 53a-122 (a) (3). On appeal, the defendant claims that the trial court improperly (1) commented on his failure to testify, (2) denied his motion for judgment of acquittal, (3) instructed the jury as to reasonable doubt, and (4) instructed the jury as to the presumption of innocence.

The jury could reasonably have found the following facts. On October 30, 1991, John Hart reported that his silver and maroon 1989 Chevrolet Astro van, valued at $13,200, had been stolen from outside his place of employment in East Fishkill, New York. The van was a “conversion” model, to which Hart had added a color television, a special console, wood trim, a special paint job and Venetian blinds.

On November 5, 1991, police officers assigned to an automobile theft task force that operated out of Bridgeport observed the van parked behind the defendant’s residence in Bridgeport. On November 27, several of the police officers returned to the location and one of them noticed that the vehicle identification number (VIN) plate looked as if it had been replaced and that there was a “for sale” sign on the van. The name Papo and a telephone number were on the sign. While the officer was surveying the van, the defendant emerged from his residence and asked whether there was a problem. After the defendant asserted that he did not own the van, the officer arranged to have the van towed to the Bridgeport police garage.

At the garage, an inspection of the van revealed that the ignition had been damaged in such a way that the vehicle could be operated without a key; the rivets on the VIN plate were scratched, indicating that the VIN plate was not factory installed; the driver’s side door lock had been removed; the passenger’s side door panels were torn apart; the exterior of the van was heavily scratched; the decals and emblems indicating a conversion model had been removed; and the windshield was cracked. From inside a compartment beneath the rear seat of the van, the police recovered several documents establishing that Hart was the van’s owner. This fact was corroborated by a check of the secondary VIN, the location of which is known only by the manufacturer.

Inside the van’s glove compartment, the police found a registration card and an insurance card in the name of Edwuin Alvino. These documents pertained to a 1985 Chevrolet Astro van, not to the 1989 van owned by Hart. The newly attached VIN also related to the 1985 van. A search of the chain of title of the 1985 van revealed that the defendant had purchased it in 1991 and thereafter sold it to Alvino. Upon further investigation, the police discovered that no one at Alvino’s purported address had any knowledge of him and that the insurance card in his name was fraudulent.

The defendant, who refers to himself as Papo, later told the police that Alvino asked him to sell the van and that he was unaware of Alvino’s whereabouts. A subsequent search of the defendant’s residence produced a telephone bill that revealed that the defendant’s telephone number was the same as that on the for sale sign. The search also yielded various implements commonly used in the theft of vehicles and alteration of VINs.'

I

The defendant first claims that the trial court twice commented improperly on his failure to testily. He asserts that the comments, which went beyond the “no adverse interest” instruction mandated by General Statutes § 54-84 (b), violated his rights against self-incrimination and to due process pursuant to the fifth and fourteenth amendments to the United States constitution.

The following facts are pertinent to our analysis of this claim. The defendant did not testify at trial. During closing argument, counsel for the defendant attempted to explain the defendant’s reaction after the prosecutor had asked Hart on direct examination whether the defendant had permission to drive the van. Defense counsel stated: “You notice that [the defendant] got all upset and you saw me, probably saw me shoosh him. . . . [The prosecutor’s question is] a standard question because obviously if you have permission to have that vehicle, then there’s no crime. . . . But my client doesn’t understand this. You know, he took it literally. ‘I don’t, you know, I don’t drive that thing.’ ” In response to an objection by the state as to the defendant’s purported statement, the trial court instructed the jury: “You’ll have to disregard any comments made in argument of what [the defendant] said. [The defendant] has not said anything. . . . There’s no evidence in this case about [the defendant].”

The defendant also challenges a remark made by the trial court in its charge to the jury. While reviewing the evidence presented at trial, the court stated: “While it is acknowledged that . . . there [are] other uses for [the items seized from the defendant’s residence] . . . there hasn’t been any demonstration as to any use here, except that they were in possession, in the apartment of the defendant at the time the search warrant was executed. So, you have to go over that testimony. Go through that stuff. Take your time. Become familiar with it. Know what the claims of the state are in regard to it. Know the claims of the defendant, but they were made in his argument and cross-examination of Detectives Meehan and MaeNamara.” (Emphasis added.)

As a threshold matter, we note that the defendant failed to object at trial to either of the remarks that he now challenges. A review of the case law makes it clear, however, that his claim is nonetheless entitled to plenary review. See State v. Walker, 206 Conn. 300, 306-307, 537 A.2d 1021 (1988); State v. Evans, 165 Conn. 61, 71, 327 A.2d 576 (1973); State v. Delosantos, 13 Conn. App. 386, 391, 536 A.2d 609 (1988).

“The fifth and fourteenth amendments to the United States constitution forbid comment by the prosecution or the court about a defendant’s failure to testify in his own behalf. [Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965)]; State v. DeMartino, 7 Conn. App. 292, 508 A.2d 809 (1986); see State v. Arline, 223 Conn. 52, 612 A.2d 755 (1992). The Connecticut legislature has affirmed this constitutional right by mandating that, unless the accused requests otherwise, the court must instruct the jury that it may draw no unfavorable inferences from an accused’s failure to testify. General Statutes § 54-84 (b).” Johnson v. Commissioner of Correction, 34 Conn. App. 153, 162, 640 A.2d 1007 (1994).

“The test to determine whether the comment violated the fourteenth amendment is whether a jury would naturally and necessarily understand the remarks to be a comment on the failure of the accused to testify. State v. Correia, 33 Conn. App. 457, 636 A.2d 860 (1994).” Id.

Turning first to the court’s remarks during the defendant’s closing argument, we conclude that the jury would not “naturally and necessarily” have interpreted them as a comment on the defendant’s failure to testify. During closing remarks, counsel for the defendant improperly interjected evidence that had not been admitted at trial —namely, the defendant’s alleged statement that he had never driven the van. Upon objection by the state, the court properly instructed the jury to disregard the statement, as it was not based on any evidence properly in the case. The challenged remarks served to underscore that fact and, in context, were likely understood by the jury to be an explanation of why it must ignore defense counsel’s statement.

The defendant also challenges the trial court’s remark in its charge to the jury, where it stated “the claims of the defendant were made in his argument and cross-examination of Detectives Meehan and MacNamara.” A fair reading of the remark leads us again to conclude that the jury would not “naturally and necessarily” have interpreted it as a substantive comment on the defendant’s failure to testify. Rather, the jury most likely interpreted the statement as a directive as to where in the evidence the defendant’s arguments could be found. For these reasons, we conclude that the defendant’s claim is without merit.

II

The defendant next claims that the trial court improperly denied his motion for judgment of acquittal. He argues that the state failed to present sufficient evidence that the defendant, beyond a reasonable doubt, knew or believed that the van in his possession was probably stolen. We disagree.

“In reviewing a jury verdict that is challenged on the ground of insufficient evidence, we employ a two part analysis. We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. . . . The evidence must be construed in a light most favorable to sustaining the jury’s verdict.” (Citations omitted; internal quotation marks omitted.) State v. Ford, 230 Conn. 686, 692, 646 A.2d 147 (1994).

Section 53a-119 (8) provides in part that “[a] person is guilty of larceny by receiving stolen property if he receives, retains, or disposes of stolen property knowing that it has probably been stolen or believing that it has probably been stolen, unless the property is received, retained or disposed of with purpose to restore it to the owner.” In order to obtain a conviction, the state needed to prove (1) that the defendant received, retained or disposed of the van, (2) that the van was stolen and (3) that the defendant knew or believed that the van was probably stolen when he received, retained or disposed of it. See State v. Gabriel, 192 Conn. 405, 473 A.2d 300 (1984); State v. Taft, 25 Conn. App. 149, 154, 593 A.2d 973, cert. denied, 220 Conn. 918, 597 A.2d 343 (1991) (language “unless the property is received, retained or disposed of with purpose to restore it to the owner” does not describe essential element of crime); State v. Payne, 12 Conn. App. 408, 530 A.2d 1110 (1987).

In this case, there is no dispute on appeal that the defendant retained the van, that the van was stolen property or that it was valued in excess of $10,000. Our inquiry is thus limited to whether the state presented sufficient evidence to prove beyond a reasonable doubt that the defendant knew or believed that the van was probably stolen. “Ordinarily, guilty knowledge can be established only through an inference from other proved facts and circumstances. The inference may be drawn if the circumstances are such that a reasonable man of honest intentions, in the situation of the defendant, would have concluded that the property was stolen.” (Internal quotation marks omitted.) State v. Hobson, 8 Conn. App. 13, 25, 511 A.2d 348, cert. denied, 201 Conn. 808, 515 A.2d 379 (1986), cert. denied, 480 U.S. 917, 107 S. Ct. 1370, 94 L. Ed. 2d 686 (1987).

“Additionally, we note that possession of recently stolen property ‘raises a permissible inference of criminal connection with the property, and if no explanation is forthcoming, the inference of criminal connection may be as a principal in the theft, or as a receiver under the receiving statute, depending upon the other facts and circumstances which may be proven.’ State v. Palkimas, 153 Conn. 555, 559, 219 A.2d 220 (1966).” Id., 25-26.

Our review of the evidence in this case, undertaken in a light most favorable to sustaining the verdict, reveals a number of facts supporting the inference that the defendant knew or believed that the van had probably been stolen. The police observed the van behind the defendant’s residence less than one week after its theft. At the time of its discovery, the van was in a condition that would indicate to a reasonable person of honest intentions that it had not been acquired by lawful means. Among other things, the van’s ignition had been tampered with, rendering the vehicle operable without a key, the driver’s side door lock had been removed and the YIN plate showed obvious signs of tampering. Moreover, the discovery in the defendant’s residence of several implements commonly used in the theft of vehicles supports the inference that the defendant was familiar with the indicia of a stolen vehicle.

We conclude, on the basis of the facts established and the inferences reasonably drawn therefrom, that the jury could reasonably have concluded that the cumulative effect of the evidence established beyond a reasonable doubt that the defendant knew or believed that the van had been stolen. The trial court properly denied the defendant’s motion for judgment of acquittal.

Ill

In his final claims, both unpreserved, the defendant asserts that the trial court improperly charged the jury when it instructed (1) that “[a] reasonable doubt is a doubt for which you can assign a valid reason” and (2) that “the law is made to protect society and innocent persons, and not to protect guilty ones.” He maintains that the latter instruction undermined his right to a presumption of innocence and lessened the state’s burden of proof beyond a reasonable doubt. The defendant seeks review of his claims pursuant to State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

Since the filing of this appeal, our Supreme Court has considered whether instructions identical to those challenged by the defendant violate a defendant’s due process rights. State v. Ellis, 232 Conn. 691, 693 n.5, 657 A.2d 1099 (1995). The court affirmed the line of cases holding that, in the context of a charge that is sound in its entirety, such instructions do not dilute the state’s burden of proof or the defendant’s presumption of innocence. Id., 705-706. In light of Ellis, and after reviewing the trial court’s entire charge to the jury, we conclude that the defendant has failed to demonstrate that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial, as required by the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       The state charged the defendant by long form information with larceny in violation of General Statutes §§ 53a-119 and 53a-122 (a) (3). In its request to charge, the state particularized its allegation to subsection (8) of § 53a-119. The court subsequently charged the jury only on the elements of larceny in the first degree by receiving stolen property in violation of §§ 53a-119 (8) and 53a-122 (a) (3).
      General Statutes § 53a-119 (8) provides in relevant part: “Receiving stolen property. A person is guilty of larceny by receiving stolen properly if he receives, retains, or disposes of stolen properly knowing that it has probably been stolen or believing that it has probably been stolen, unless the property is received, retained or disposed of with purpose to restore it to the owner. . . .”
      General Statutes § 53a-122 (a) provides in relevant part: “A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and . . . (3) the property consists of a motor vehicle, the value of which exceeds ten thousand dollars . . . .”

       General Statutes § 54-84 provides: “(a) Any person on trial for crime shall be a competent witness, and at his or her option may testify or refuse to testify upon such trial. The neglect or refusal of an accused party to testify shall not be commented upon by the court or prosecuting official, except as provided in subsection (b) of this section.
      “(b) Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused’s silence.”

       While the defendant also invokes article first, § 8, of the Connecticut constitution, he has failed to provide an independent analysis of his claim thereunder. Consequently, we limit our review to a consideration of his claim pursuant to the federal constitution. See State v. Sivri, 231 Conn. 115, 140-41 n.16, 646 A.2d 169 (1994).

       In this case, the trial court complied with the mandate of § 54-84 (b) by instructing the jury that “[y]ou may draw no unfavorable inferences from the accused’s failure to testify.”

       Even if the trial court’s remarks did emphasize the defendant’s failure to testily, they do not necessarily violate the fifth amendment to the United States constitution. In United States v. Robinson, 485 U.S. 25, 108 S. Ct. 864, 99 L. Ed. 2d 23 (1988), the United States Supreme Court held that a direct comment on the silence of an accused was permitted when made in response to a defense argument. The trial court’s remarks in this case were part of a corrective ruling, necessitated by defense counsel’s improper statement.

       Pursuant to § 53a-122 (a) (3), the state also needed to prove that the van was valued in excess of $10,000.

       Under State v. Golding, supra, 213 Conn. 239-40, the defendant can prevail on an unpreserved claim of constitutional error “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. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.”


text:
    JACQULINE D. ZIEMBA v. HANOVER INSURANCE COMPANY ET AL.
    (13658)
    O’Connell, Landau and Hennessy, Js.
    Argued May 31
    decision released September 5, 1995

      James P. Connolly, with whom, on the brief, was James P. Biondolillo, for the appellant (named defendant).

      Gregory E. OBrien, with whom, on the brief, was Garrett M. Moore, for the appellee (plaintiff).
   LANDAU, J.

The named defendant appeals from the judgment of the trial court, rendered after a bench trial, in favor of the plaintiff on her uninsured motorist claim. The defendant claims that the trial court improperly (1) granted the plaintiffs motion in limine, and (2) found that it was responsible, pursuant to the terms of the insurance contract regarding uninsured motorists, for the injuries and losses sustained by the plaintiff.

The following procedural history is relevant to our disposition of this appeal. On September 6, 1990, the plaintiff suffered injuries when the motor vehicle that she was driving was struck from behind by a van owned by Steven Tata. At the time of the accident, the plaintiff had a contract for automobile insurance with the defendant that provided uninsured motorist coverage. The plaintiff commenced a negligence action against Tata as the owner of the van and against William Beardsley as the operator of the van. Although Tata was uninsured on the date of the accident, Beardsley had automobile liability coverage. Upon receiving affidavits from Tata and Beardsley in which they asserted that Tata was actually the operator of the van at the time of the accident, the defendant accepted the plaintiffs insurance claim as an uninsured motorist claim. The plaintiff immediately withdrew the action against Tata and Beardsley, and subsequently filed an uninsured motorist action against the defendant. After conducting further discovery and arriving at the conclusion that Beardsley was, in fact, the driver of the van, the defendant impleaded Beardsley as a third party defendant in the action.

In its answer to the plaintiffs amended complaint, the defendant pleaded the special defense that “the conditions precedent to assertion of an uninsured motorist claim have not been fulfilled.” Prior to trial, the plaintiff and Beardsley filed a joint motion in limine, seeking to bar the defendant from offering “any evidence in support of its special defense . . . specifically that the motor vehicle that injured [the plaintiff] was not uninsured because the defendant Beardsley was operating it.” After granting the motion, the trial court heard the matter as a hearing in damages and ruled that the defendant was liable to the plaintiff in the amount of $153,000. This appeal followed.

I

The defendant first claims that the trial court improperly granted the motion in limine. On appeal, the defendant claims that the granting of the motion in limine both (1) eviscerated its special defense, and (2) constituted a partial summary judgment rendered without a proper evidentiary basis. The defendant, however, failed to present these arguments to the trial court.

We will not review a claim that has not been distinctly raised at trial. Practice Book § 4185; Skrzypiec v. Noonan, 228 Conn. 1, 13, 633 A.2d 716 (1993); Baker v. Cordisco, 37 Conn. App. 515, 525, 657 A.2d 230 (1995); Brown v. Brown, 36 Conn. App. 597, 599, 652 A.2d 527, cert. denied, 232 Conn. 917, 655 A.2d 260 (1995). In this case, the defendant failed to avail itself of the several opportunities to proffer its arguments to the tiial court. The defendant could have filed a written objection to the motion in limine, voiced its arguments at the hearing on the motion, or filed any postruling motions designed to contest the court’s granting of the motion in limine, however, it did neither.

The defendant’s previous failure to raise the claim it now raises on appeal deprived the trial court of the opportunity to address the issue adequately while there was time to correct it. Baker v. Cordisco, supra, 37 Conn. App. 525; see Misiurka v. Maple Hill Farms, Inc., 15 Conn. App. 381, 385-86, 544 A.2d 673, cert. denied, 209 Conn. 813, 550 A.2d 1083 (1988). “[T]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) Baker v. Cordisco, supra, 525. For these reasons, we decline to review this claim.

II

The defendant next claims that the trial court improperly found that it was responsible, pursuant to the terms of the insurance contract regarding uninsured motorists, for the injuries and losses sustained by the plaintiff. The defendant claims that the plaintiff failed to sustain her burden of proof at the trial because she did not offer any evidence regarding causation, the lack of insurance coverage on the van, or the identity of the operator of the van. The plaintiff responds that because the trial was conducted as a hearing in damages only, to which the defendant acquiesced, she was relieved of her burden of proving the elements relating to liability.

The defendant again presents us with a claim that it failed to raise before the trial court. The defendant never objected to the nature of the proceedings at trial and subsequently filed no motion seeking to open or set aside the judgment on the ground that the plaintiff had failed to sustain her burden of proof relating to liability or that the trial had been inappropriately conducted as a hearing in damages. See id.

Counsel for the defendant admitted at trial that the proceedings were “analogous to a hearing in damages” and “essentially a hearing in damages.” “ ‘The general rule is that admissions, if relevant and material, made by an attorney incidental to the general authority of the attorney to represent his client in connection with and for the purpose of controlling the matter committed to him are admissible against the client.’ ” Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 218 Conn. 474, 478, 590 A.2d 431 (1991), quoting Collens v. New Canaan Water Co., 155 Conn. 477, 496, 234 A.2d 825 (1967). Consequently, by admission, the defendant acquiesced in the nature of the proceedings, which limited the plaintiffs burden of proof to showing damages only.

The judgment is affirmed.

In this opinion the other judges concurred.

       We refer in this opinion to the named defendant as the defendant. See footnote 2.

       The plaintiff subsequently filed an amended complaint, naming Beardsley as a codefendant, after which the defendant’s third party complaint against Beardsley was stricken.

       Following the granting of the motion in limine and before the commencement of trial, the plaintiff withdrew her action against Beardsley.


author: HEIMAN, J.

text:
    STATE OF CONNECTICUT v. RAFAEL CINTRON
    (13626)
    Foti, Heiman and Schaller, Js.

      Argued May 25
    decision released September 5, 1995

      Joseph J. Romanello, assistant public defender, with whom, on the brief, was John Booth, legal intern, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Robert Katz, senior assistant state’s attorney, for the appellee (state).
   HEIMAN, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of possession of a narcotic substance in violation of General Statutes § 21a-279 (a). On appeal, the defendant asserts that the trial court improperly (1) denied his motion to allow the jury to view the surveillance site and (2) denied his motion for a judgment of acquittal when the evidence was insufficient to support a verdict of guilty. We disagree and affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On March 23, 1993, members of the Norwalk police department’s special services division were engaged in a surveillance operation in the area of Ely Avenue and Lowe Street in Norwalk. This area had been selected by the division because of numerous complaints from citizens concerning narcotics trafficking. The police also had information that an individual known as “Dominican Ralphy” from Paterson, New Jersey, was engaged in cocaine transactions in that neighborhood.

At about 4:20 p.m., Officer Charles Perez, acting as the surveillance officer, positioned himself in a wooded area about fifteen to twenty feet above the sidewalk and about sixty to sixty-five yards away from a parking lot near an abandoned house off Lowe Street. Perez was equipped with a pair of high-powered binoculars that could make an object 1000 feet away appear as if it were only 192 feet away. Although the sky was overcast, it was still daylight and Perez had a clear view of the parking lot as well as a number of small businesses in the area, including the Red Shingle, Deflorio’s Market, a Wash and Dry Laundromat and Rivera’s Grocery Store. In addition, the trees in the area had very few leaves and, therefore, did not obstruct Perez’ view.

At about 4:45 p.m., Perez observed a gray Audi pull into the parking lot. Perez recognized the driver of the Audi as Israel Concepcion, Sr., whom he knew from previous investigations into narcotics trafficking. Concepcion stopped the vehicle and rolled down the driver’s window. A heavyset Hispanic male, later identified as Victor Contreras, approached the vehicle and conversed with Concepcion for a few seconds. Contreras then walked into the laundromat.

Shortly thereafter, Contreras emerged from the laundromat accompanied by the defendant. Contreras stationed himself outside the laundromat while the defendant approached the vehicle and handed Concepcion a small package. Although Perez could not identify what the package contained, he observed Concepcion take the package in his left hand. Perez then observed Concepcion hand the defendant money with his right hand. The defendant and Contreras went back into the laundromat and Concepcion drove away.

Perez, on the basis of his training and experience, concluded that he had witnessed the sale of narcotics. This conclusion was based on his past experience that persons engaged in the illegal sale of drugs often work in pairs: one of the participants takes the order from the customer and the other delivers the drugs and collects the money. Additionally, a third person is sometimes involved to hold the money received from these illegal transactions. Perez immediately radioed the nearby arrest team that Concepcion, driving a gray Audi, had purchased narcotics.

The arrest team followed Concepcion until he stopped and parked his vehicle on Washington Street near a post office. When Concepcion exited his vehicle and approached a mailbox, the arrest team intercepted him and informed him that they were police officers. Officer Melissa Lee told Concepcion that he had been observed purchasing narcotics and asked him where the narcotics were. Concepcion told Lee that they were in his left jacket pocket, from which Lee retrieved three small bags of a substance that field-tested positive for the presence of cocaine.

Concepcion was arrested and transported to police headquarters in a patrol car. The arrest team then proceeded to the location where the sale had been witnessed by Perez. The defendant was arrested in the laundromat and was taken outside where he was identified by Perez as the man who had made the delivery of the package to Concepcion and had received the money in return. In the defendant’s possession at the time of his arrest was $92. Contreras was arrested inside Rivera’s Market which is accessible from the laundromat by a connecting door. In Contreras’ possession at the time of his arrest was $855.

I

The defendant first asserts that the trial court improperly denied his motion to allow the jury to view the crime scene from the surveillance site. We disagree.

Certain additional facts are necessary for the resolution of this issue. On February 8, 1994, the defendant filed a motion pursuant to Practice Book § 844 seeking a court order allowing the jury to view the area of the “alleged incident of March 23, 1993, from the point of the surveillance utilized by Officer Perez on that date.” On February 10, 1994, the defendant withdrew the motion.

On February 14,1994, the state rested and the defendant moved for a judgment of acquittal. The trial court denied the defendant’s motion and the defendant rested without presenting evidence. The jury was then excused for the day and the defendant renewed his motion for acquittal, which was again denied.

On February 15, 1994, the defendant renewed his motion to permit the jury to view the crime scene from the surveillance site. In support of his motion, the defendant claimed that there was a dispute as to what Perez was able to see from his surveillance vantage point and that it would be beneficial to the jury’s ability to determine the facts of the case if they could “utilize the same site and the same conditions.” In response, the state asserted that the area was, at that time, under one foot of snow. In addition, the state argued that the defendant had not presented any evidence to establish that the conditions at that time were substantially the same as they had been eleven months earlier at the time of the surveillance. The trial court denied the defendant’s motion, stating that the defendant had failed to demonstrate that the conditions of the surveillance site were substantially similar to those on the day the surveillance was conducted by Perez.

“Pursuant to Practice Book § 844, a trial court may permit a viewing of the scene of the crime if it is of the opinion that a viewing would be helpful to the jury in determining some material factual issue in the case.” State v. Flynn, 14 Conn. App. 10, 28, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988). The determination as to whether to permit the jury to view the scene of a crime is within the sound discretion of the trial court. Id.; State v. Cato, 21 Conn. App. 403, 409, 574 A.2d 240, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990). Thus, unless the action of the trial court in denying the motion constitutes an abuse of discretion, the decision of the trial court must stand. State v. Flynn, supra, 28.

In deciding a motion to view the scene “[t]he court should consider whether viewing the scene is necessary or important so that the jury may clearly understand the issues and properly apply the evidence.” State v. Cato, supra, 21 Conn. App. 410; see also Giannitti v. Stamford, 25 Conn. App. 67, 71-72, 593 A.2d 140, cert. denied, 220 Conn. 918, 597 A.2d 333 (1991). “Although discretionary, the power to authorize a view of the scene should be invoked only after the court is satisfied that the present conditions at the site are the same as those that existed on the date of the underlying incident, and that such a personal inspection is fair to both parties and reasonably necessary to do justice. ” (Internal quotation marks omitted.) Giannitti v. Stamford, supra, 72, quoting Mackin v. Mackin, 186 Conn. 185, 190, 439 A.2d 1086 (1982).

Here, the trial court found that there was nothing in the record to indicate that the conditions that existed at the site were the same as those that existed on the day of the crime. It was incumbent upon the defendant as the moving party, to make a preliminary showing that the conditions were sufficiently similar to the conditions on the day of the occurrence as to make a view meaningful in the resolution of the issues in dispute. Giannitti v. Stamford, supra, 25 Conn. App. 72; C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 9.3.2, p. 276.

Moreover, the defendant failed to persuade the trial court that a viewing of the surveillance scene was necessary or important to an understanding of the proper application of the evidence. The site, as well as Perez’ position and location at the site, were fully described to the jury. The jury was presented with evidence regarding Perez’ utilization of high-powered binoculars and Perez testified that he had an unobstructed view of the area due to the lack of foliage on the trees. Perez described in detail his sight lines and the areas to which he had a clear and unobstructed view. In addition to the testimony, the jury was shown a map of the area and the layout of the scene. The defendant also had an adequate opportunity to cross-examine Perez. The jury, therefore, had sufficient evidence before it to allow it to understand the scene of the crime and a firsthand view was not necessary for the jury’s understanding of the issues. See State v. Cato, supra, 21 Conn. App. 410.

We conclude that the trial court did not abuse its discretion in denying the defendant’s motion for a view by the jury of the surveillance site.

II

The defendant next asserts that the evidence was insufficient to sustain a conviction of illegal possession of a narcotic substance. Specifically, he asserts that the evidence presented at trial regarding the incident on March 23,1993, did not permit a jury to find that he was illegally in possession of cocaine. We are not persuaded.

“We begin our analysis by restating the principles that guide and define the scope of our review. When called on to review a challenge to the sufficiency of the evidence to support a conviction, we undertake a two part analysis. . . . 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.” (Citations omitted; internal quotation marks omitted.) State v. Haggood, 36 Conn. App. 753, 760, 653 A.2d 216, cert. denied, 233 Conn. 904, 657 A.2d 644 (1995); see also State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994).

“In applying this analytical framework to the circumstances before us, we acknowledge that it appears that the defendant’s conviction is premised, in large measure, on circumstantial evidence. [I]t is of no moment that much of the relevant evidence may be circumstantial. . . . [TJhere 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. Haggood, supra, 36 Conn. App. 760-61, quoting State v. Simino, 200 Conn. 113, 117, 509 A.2d 1039 (1986); State v. Foster, 202 Conn. 520, 536, 522 A.2d 577 (1987).

“We must also acknowledge in our review of the evidence that it is the right and the duty of the jury to draw reasonable and logical inferences from the evidence. State v. Weinberg, 215 Conn. 231, 255, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990); State v. Little, 194 Conn. 665, 673, 485 A.2d 913 (1984). Moreover, the jury may draw inferences on the basis of facts that it finds as a result of other inferences. State v. Weinberg, supra, 255; State v. Little, supra, 673. [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . State v. Grant, 219 Conn. 596, 604, 594 A.2d 459 (1991). 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. 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. 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).” (Internal quotation marks omitted.) State v. Haggood, supra, 36 Conn. App. 761.

“In considering the evidence introduced in a case, [j juries are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Citations omitted; internal quotation marks omitted.) State v. Patterson, 35 Conn. App. 405, 414, 646 A.2d 258, cert. denied, 231 Conn. 930, 649 A.2d 254 (1994); see also State v. Little, 194 Conn. 665, 674, 485 A.2d 913 (1984).

We also note that while it is necessary that the jury find that each element of the crime be proven beyond a reasonable doubt, it is not necessary that each of the basic and inferred facts underlying these conclusions be proven beyond a reasonable doubt. State v. Adams, 225 Conn. 270, 276-77, 623 A.2d 42 (1993); State v. Garcia, 37 Conn. App. 619, 624, 657 A.2d 691 (1995). Again, it is the cumulative impact of a multitude of facts that establishes guilt in a case involving substantial circumstantial evidence. State v. Haggood, supra, 36 Conn. App. 761.

After a thorough review of the evidence, we conclude that the cumulative effect of the evidence was sufficient to permit the jury to have found the defendant guilty of possession of a narcotic substance. Perez, who had been qualified as an expert in the field of illegal drug transactions, testified that he observed the delivery of a small package from the defendant to Concepcion. In addition, Perez saw the defendant receive money from Concepcion in return. Perez recognized Concepcion from prior drug investigations and testified that, based on his experience, he believed that he had witnessed a drug transaction. When Concepcion was stopped by members of the arrest team, three small bags of cocaine were found in the left pocket of his jacket. At the time of his arrest the defendant had $92 in his possession. The evidence provided enough corroborative factors to permit a jury reasonably to conclude that the defendant was guilty of possession of narcotics. See State v. Hall, 165 Conn. 599, 345 A.2d 17 (1973); State v. Baskins, 12 Conn. App. 313, 530 A.2d 663, cert. denied, 205 Conn. 811, 532 A.2d 586 (1987).

The defendant claims, however, that despite this evidence, the fact that Perez could not identify the package delivered by the defendant to Concepcion as narcotics precludes his conviction for possession of narcotics. In support of this proposition the defendant relies on State v. Mierez, 24 Conn. App. 543, 590 A.2d 469, cert. denied, 219 Conn. 910, 911, 593 A.2d 136 (1991). We conclude that the defendant’s reliance on Mierez is misplaced.

In Mierez, this court was presented with a claim of insufficient evidence to support a conviction of the sale of narcotics in violation of General Statutes § 21a-277 (a). Here, the defendant was convicted of possession of a narcotic substance in violation of § 21a-279 (a) and, thus, the defendant’s sufficiency claim is factually distinct from that presented in Mierez. “[I]n order to satisfy its burden of proof, [on a charge of sale of narcotics] the state [is] required to prove beyond a reasonable doubt that there was a sale as defined [by General Statutes § 21a-240 (50)], and that the delivery was of a narcotic substance . . . .” Id., 551. Here, the state needed to prove only that the defendant possessed a narcotic substance.

In addition, the surveillance officers in Mierez were not able to describe the object that the defendant handed to the alleged buyer and never saw money change hands. They also were not able to say that the small item that they saw Mierez deliver to the alleged buyer came from the narcotic stashes that Mierez had on his person. Id., 552. Additionally, a search of the alleged buyer failed to reveal any narcotics, nor did anyone see the alleged buyer dispose of anything. Id., 553. We, therefore, concluded that for a jury to find the defendant guilty of the crime of sale of narcotics under the facts of that case would permit the conviction to be rendered on the basis of mere speculation and conjecture. Id., 554. Here, however, Perez saw the defendant deliver a small package to Concepcion in return for money. In addition, when Concepcion was stopped and told that he had been seen buying narcotics, Concepcion indicated that the narcotics were located in his jacket pocket. Three small bags of cocaine were then retrieved from Concepcion’s pocket.

We conclude that the jury could reasonably have inferred that the cocaine found in the possession of Concepcion had, shortly before, been in the possession of the defendant. Thus, the claim of the defendant that the evidence was insufficient to support his conviction is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was charged in two separate two part informations, each alleging, in the first part, a violation of General Statutes § 21a-279 (a). The first information concerned events that occurred on March 23, 1993; the second concerned events that occurred on May 11, 1993. The two informa-tions were consolidated at trial and each resulted in a conviction. The defendant then pleaded guilty under the Alford doctrine; North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); to the second part of each information, charging him with having four previous convictions for possession of narcotics.

       General Statutes § 21a-279 (a) provides: “Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years or be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for any subsequent offense, may be imprisoned not more than twenty-five years or be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       Both of the claims raised in this appeal relate only to the defendant’s conviction on the charge that arose out of the incident on March 23, 1993. No claim has been raised regarding his conviction for the May 11, 1993 incident. Further, the record reflects that the defendant appealed from his conviction under Docket No. CR93-60655 and took no appeal from his conviction under Docket No. CR93-61216. Thus, we limit our discussion to the single incident that occurred on March 23, 1993.

       Practice Book § 844 provides inpertinentpart: “When the judicial authority is of the opinion that a viewing by the jury of the place where the offense being tried was committed, or of any other place involved in the case, will be helpful to the jury in determining any material factual issue, he may in his discretion, at any time before the closing arguments, order that the jury be conducted to such place. ...”

       We recognize that ordinarily “ [Representations and arguments of counsel are not evidence.” State v. Youdin, 38 Conn. App. 85, 95, 659 A.2d 728 (1995), citing State v. O’Brien, 29 Conn. App. 724, 732, 618 A.2d 50, cert. denied, 225 Conn. 902, 621 A.2d 285 (1993).

       In denying the motion the trial court stated: “There has been no evidence before the court that the surrounding area is substantially the same today as it was when the surveillance was done by Officer Perez. Motion to view the surveillance site is denied.”

       General Statutes § 21a-277 (a) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, 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.”

       See footnote 2.

       Since the defendant was charged with only possession of narcotics and not with the sale of narcotics, we do not decide whether the same evidence would have supported a conviction of the charge of sale of narcotics.