text:
    Alan J. Koepke v. Zoning Board of Appeals of the Town of Coventry et al.
    (8672)
    Norcott, Heiman and Cretella, Js.
    Argued May 31
    decision released August 27, 1991

      Ma/rkK. Branse, for the appellant (defendant Susan Oygard).

      Duncan J. Forsyth, for the appellee (plaintiff).
   Norcott, J.

This is an appeal from the judgment of the trial court sustaining the appeal of the plaintiff, Alan J. Koepke, from a decision of the defendant zoning board of appeals of the town of Coventry, which had revoked his permission to erect a 150 foot radio antenna on his property. The defendant Susan Oygard, who brings this appeal, owns and resides on real property abutting that of the plaintiff. We affirm the judgment of the trial court.

The following relevant facts were found by the trial court in a well drafted and well reasoned memorandum of decision. On June 9, 1986, the plaintiff spoke with Robert Isner, the Coventry zoning officer at that time, about a preliminary drawing for a 150 foot radio antenna and a small adjacent concrete block building that the plaintiff wanted to construct on the subject property. The plaintiff told Isner that he would purchase the property if he obtained a zoning permit to erect the antenna. Soon thereafter, Isner met with Patricia Gatzkiewicz, the Coventry town planner, to discuss the plaintiffs application.

On June 11, 1986, Isner told the plaintiff that he would have to wait thirty days before filing an application for a zoning permit so the owners of the property abutting the subject property could be notified of his plans and could be provided with an opportunity to submit written comments on or before July 11, 1986. In the meantime, the plaintiff was advised by Isner to prepare his plans. On June 25,1986, notice of the plaintiffs proposed construction was sent to Norvald and Susan Oygard. The Oygards did not, however, submit any written objections to or comments on the proposed radio antenna.

On June 17,1986, the plaintiff submitted a new plot plan to the Coventry building office. This plan differed from the plaintiffs original plan in that the tower was located on the east side of the building rather than on the north side. The new plot plan also showed that the tower would be erected on three concrete pylons and would be 160 feet high.

On July 11, 1986, the plaintiff was advised that no adverse comments on the antenna had been received from any abutting property owners. That same day the plaintiff presented an application for a permit together with the new plot plan to the Coventry building office. The plaintiff and Al Broderson, a representative of the building office, then went to the zoning office where Gatzkiewicz, in her capacity as an assistant zoning enforcement officer, signed the permit. The plaintiff paid the $22 fee and received a receipt of payment numbered 10109. The zoning permit was also numbered 10109.

The plaintiff obtained the permits from the building office that were necessary to construct the radio antenna and, on July 22,1986, purchased the subject property. Shortly thereafter, he began construction of the antenna and concrete building.

On August 7,1986, the plaintiff received a telephone call from Isner regarding the manner in which the tower would be attached to the building. Because of Isner’s concern, the plaintiff revised the plot plan. The revision did not alter the subject of the permit but merely provided for the tower to be erected on a concrete slab that was connected to the building, thereby complying with the “10 percent” requirement of the Coventry zoning regulations § 6.6.

At Isner’s request, the plaintiff then submitted a new application together with the revised plot plan, and a new zoning permit was issued to him on August 7, 1986. This permit was also numbered 10109 and was issued without an additional permit fee. Subsequently, the plaintiff received a letter from Isner dated August 7,1986, which stated that the July permit was revoked.

On August 12,1986, Oygard appealed to the zoning board from its issuance of the August 7, 1986 permit to the plaintiff. Oygard claimed (1) that approval of the permit would adversely affect her property, (2) that the tower was not permitted in an RU-40 zone and (3) that the height exemptions of § 6.6 of the Coventry zoning regulations were not applicable. A public hearing was held on Oygard’s appeal on September 16, 1986. The zoning board sustained her appeal, and on September 18, 1986, a stop work order was issued to the plaintiff.

The plaintiff then successfully appealed the zoning board’s decision to the trial court, which found that the board was without jurisdiction to hear Oygard’s appeal (1) because her appeal to the zoning board was untimely and (2) because the notice of the zoning board’s hearing on that appeal was invalid and improper. From the decision of the trial court, Oygard now appeals.

Oygard challenges (1) the trial court’s jurisdiction over the revocation of the plaintiff’s first permit, (2) the trial court’s failure to find that the plaintiff made a judicial admission that his first permit had been revoked, (3) the trial court’s finding that the zoning agent had no authority to revoke the plaintiffs first permit, (4) the trial court’s finding that Oygard’s appeal to the zoning board was untimely, (5) the trial court’s finding that the notice of the zoning board’s hearing on Oygard’s appeal was legally inadequate and (6) the plaintiff’s standing to raise the issue of notice. We find that the issues raised with respect to notice are dispositive of this appeal.

General Statutes § 8-7 requires that notice of a public hearing of a zoning board of appeals be published at specific intervals in a newspaper of significant distribution. Whether a particular notice adequately satisfies these statutory requirements has been the subject of many Connecticut court decisions. Oygard attempts to distinguish among illegal, misleading and vague notices, arguing that the plaintiff claims only that the notice at issue was vague and that vague notices are not inadequate for jurisdictional purposes. We do not focus on these distinctions because they are distinctions without a difference. For the purposes of this appeal, the fundamental question is whether the notice was legally adequate to confer jurisdiction on the zoning board. Oygard claims that the prehearing notices of September 5 and 12,1986, while brief, were legally adequate to confer jurisdiction. We disagree.

The trial court found, as one basis for its ruling, that the notice of Oygard’s appeal to the zoning board was inadequate because, essentially, the advertisements “failed to state the subject matter to be considered at the hearing.” The trial court’s decision will not be reversed unless it is clearly erroneous. Practice Book § 4061. “ ‘[Wjhere the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .’” Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 723, 563 A.2d 1339 (1989).

“Compliance with statutorily prescribed notice requirements is a prerequisite to a valid action by a land use commission and failure to give proper notice constitutes a jurisdictional defect. Wright v. Zoning Board of Appeals, 174 Conn. 488, 489, 391 A.2d 146 (1978).” Peters v. Environmental Protection Board, 25 Conn. App. 164, 168, 593 A.2d 975 (1991); Hall v. Planning Board, 2 Conn. App. 49, 54, 475 A.2d 1114 (1984). Adequate prehearing notice is necessary to inform affected and properly interested parties of their opportunity to be heard and to be apprised of the relief sought. Id.; see also R. B. Kent & Son, Inc. v. Planning Commission, 21 Conn. App. 370, 378, 573 A.2d 760 (1990). “Constructive, rather than actual, notice is required so that as much of the populace as possible is constructively notified of the proposed action.” Peters v. Environmental Protection Board, supra. “ ‘[N]otice of a hearing is not required to contain an accurate forecast of the precise action which will be taken on the subject matter referred to in the notice. It is adequate if it fairly and sufficiently apprises those who may be affected of the nature and character of the action proposed, so as to make possible intelligent preparation for participation in the hearing.’ Shrobar v. Jensen, 158 Conn. 202, 207, 257 A.2d 806; Neuger v. Zoning Board, 145 Conn. 625, 630, 145 A.2d 738.” Danseyar v. Zoning Board of Appeals, 164 Conn. 325, 330, 321 A.2d 474 (1973).

The notice here advised the public that, on September 16, 1986, the zoning board would hear, inter alia, the “[application of Norvald & Susan Oygard, seeking an appeal of the Zoning Agent’s decision to issue a permit under § 6.6 (§ 13.1.1).” This notice was excessively frugal. It was vague to the point of being misleading. As the trial court accurately noted in its memorandum of decision, the notice failed to identify (1) the subject matter of the appeal, (2) the location or identity of the property in question, (3) the nature of the use from which the appeal was being made and (4) the holder of the permit and for what purpose the permit had been issued. The only identifiable reference in the notice was to Coventry zoning regulations §§ 6.6 and 13.1.1. This reference by itself did not adequately permit any member of the public to determine more precisely the specific nature of the Oygard appeal. Neither section of the regulations would lead a member of the public to be aware, as the trial court stated in its decision, “that the plaintiff’s property, the erection of a radio antenna, and public safety communication networks were in any way affected by the appeal of Susan Oygard.” As such, the published notice in the present case was insufficient in that it failed to “apprise the public of the proposed action so as to enable intelligent preparation for participation in the hearing.” R. B. Kent & Son, Inc. v. Planning Commission, supra.

Given the paucity of information provided by the notice, Oygard’s argument that the notice fostered an obligation on the reader to inquire further about the substance of the appeal is without merit. The cases cited by her in support of this proposition are clearly distinguishable from the present case with respect to the quantity and quality of the information in those notices. See Shrobar v. Jensen, supra; Passero v. Zoning Commission, 155 Conn. 511, 235 A.2d 660, cert. denied, 390 U.S. 1004, 88 S. Ct. 1248, 20 L. Ed. 2d 104 (1967).

Similarly without merit is Oygard’s argument that the plaintiff had no standing to raise the issue of notice. Oygard contends that, because the plaintiff actually attended and participated in the public hearing, any defect in the notice was waived and cured. Again, we disagree.

Because an adequate prehearing notice is a jurisdictional prerequisite, “the public hearing and decisions predicated on it are void and even may be attacked in proceedings brought after the expiration of the deadline for appealing the decision based on the public hearing.” T. Tondro, Connecticut Land Use Regulation, pp. 173-74 (1979). Because the public is entitled to constructive notice of the hearing, the fact that some members of the public, including the plaintiff, appeared at the hearing cannot cure the jurisdictional defect. Cocivi v. Plan & Zoning Commission, 20 Conn. App. 705, 708, 570 A.2d 226, cert. denied, 214 Conn. 808, 573 A.2d 319 (1990). Oygard’s argument that she was the only significant party with an interest in the case is not in accord with the trial court’s unchallenged conclusion that the subject matter of the appeal was of concern to many Coventry residents.

We conclude that the notice of the public hearing was inadequate and, therefore, insufficient to confer jurisdiction on the zoning board to act on Oygard’s appeal. Because of our disposition of this issue, we need not reach Oygard’s other claims of error.

The judgment is affirmed.

In this opinion the other judges concurred.

       Neither the zoning regulations nor the record before us reveals the basis for this thirty day waiting period.

       Section 6.6 of the Coventry regulations provides as follows:
      “Height Limits. Notwithstanding the height limitations imposed by other provisions of these Regulations, church spires, belfries, cupolas, towers, domes, chimneys, flagpoles, radio and television antenna, ventilators, skylights, bulkheads, water tanks and similar features occupying in the aggregate not more than 10 percent of the ground area of the building and not used for human occupancy may be erected to such reasonable height as may be necessary to accomplish the purpose they are to serve.”

       General Statutes § 8-7 provides in pertinent part: “Notice of the time and place of such hearing shall be published in a newspaper having a substantial circulation in such municipality at least twice at intervals of not less than two days, the first not more than fifteen days, nor less than ten days, and the last not less than two days before such hearing. In addition to such notice, such board may, by regulation, provide for notice by mail to persons who are owners of land which is adjacent to the land which is the subject of the hearing.”
      The notice provision of General Statutes § 8-3 (a), regarding prehearing notice of changes in zoning regulations and districts, is identical to § 8-7.

       The Coventry zoning regulations provides in pertinent part: “13.1 There shall be a Board of Appeals established in accordance with the statutes authorizing such a board. The Zoning Board of Appeals shall have the following powers and duties.
      “13.1.1 To hear and decide appeals where it is alleged that there is an error in any order, requirement or decisions made by the official charged with the enforcement of these Regulations.”


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    State of Connecticut v. Gary L. Parker
    (9746)
    Dupont, C. J., Sfallone and Heiman, Js.
    Argued June 7
    decision released September 3, 1991

      B. Paul Kaplan, with whom, on the brief, was Marguerite T. Friar, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom, on the brief, was Mark Solak, state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the judgment of conviction of one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (3). The defendant claims that the trial court should not have denied his motion to strike a substitute information which added that charge after a prior mistrial on an assault charge arising out of the same incident and brought under a different subdivision of the assault statute. We affirm the trial court’s judgment.

It is essential to an understanding of the issue presented by this appeal to describe the procedural background leading to the defendant’s conviction. By information dated October 11,1988, the defendant was charged with assault in the first degree in violation of General Statutes § 53a-59 (a) (l). The jury was unable to reach a verdict on that charge, and the trial court, Shaughnessy, J., declared a mistrial (hereinafter first trial). On August 29,1990, the state filed a substitute information that added the charge of assault in the first degree in violation of § 53a-59 (a) (3). The trial court, Potter, J., denied the defendant’s motion to strike the substitute information, and, after a trial to the court, he was acquitted of intentional assault under § 53a-59 (a) (1), but was found guilty of reckless assault under § 53a-59 (a) (3) (hereinafter second trial).

We must first determine which section of our rules of practice controls the defendant’s challenge to the substitute information. Practice Book §§ 623 and 624 regulate whether the state is permitted to amend an information. “If the amendment of the information [is] made before the commencement of the trial, Practice Book § 623 [will] govern, but if the amendment [is] made after the commencement of the trial, Practice Book § 624 [will] apply.” State v. Cole, 8 Conn. App. 545, 549, 513 A.2d 752 (1986).

Although the defendant argues, in his brief, that neither provision applies to the circumstances of this case “because the substitute information was filed . . . after the first trial and before the second trial,” he relies on cases that interpret Practice Book § 624. Essentially, the defendant argues that once the first trial began, any subsequent amendments to the information occurred “[ajfter commencement of the trial,” notwithstanding the intervening mistrial. The state, on the other hand, urges us to examine the facts of this case under Practice Book § 623. We conclude that the provisions of § 623 apply where the state seeks to amend the information or file a substitute information after a mistrial and before a retrial.

A mistrial where a jury has been unable to reach a verdict terminates a trial but leaves the criminal proceedings unresolved. See Arizona v. Washington, 434 U.S. 497, 505, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978). Upon mistrial, the criminal prosecution is returned to the pretrial stage. The defendant after the mistrial, therefore, was in the position of one who awaits the commencement of trial. This conclusion does not undermine the due process concerns of §§ 623 and 624 “to protect a defendant’s right to fair and adequate notice of the charges against him so as to afford him an opportunity to prepare an adequate defense.” State v. Cole, supra, 550. Not only did the substitute information in this case give the defendant sufficient notice of the additional charge against him prior to the commencement of the second trial, but the defendant relied on the same defense of self-defense at both trials.

Section 623 allows the trial court to “strike the . . . substitute information, if the trial or the cause would be unduly delayed or the substantive rights of the defendant would be prejudiced.” Our focus now turns to whether the challenged substitute information prejudiced the substantive rights of the defendant. See State v. Brunori, 21 Conn. App. 331, 337, 574 A.2d 222 (1990); State v. Servello, 14 Conn. App. 88, 98, 540 A.2d 378, cert. denied, 208 Conn. 811, 545 A.2d 1107 (1988); State v. Huff, 10 Conn. App. 330, 345, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987). The fact that there was a mistrial and the circumstances surrounding that mistrial may very well be relevant to the § 623 inquiry of whether “the substantive rights of the defendant would be prejudiced” by the amendment to the information.

The defendant claims that he was prejudiced by the substitute information in that “the state learned from the first trial that it had insufficient evidence that the defendant intentionally assaulted the alleged victim” and therefore “amended the information to include the ‘reckless assault’ charge.” The defendant claims prejudice to his defense “because the crime of reckless assault is not a lesser included offense of intentional assault and requires proof of additional elements beyond those required by intentional assault.” The state, on the other hand, argues that there was no prejudice to the defendant because “[t]he trial court gave full consideration to his claim of self-defense as it related to the offense of reckless assault.”

We agree with the state that the defendant’s opportunity to prepare his defense was not impaired by the amendment. The fact that the defendant was then required to defend against a new charge is not prejudicial where the new offense charged was not significantly different than the charge already faced by the defendant, where the defendant had sufficient time to refine his preparation for trial and where the defendant intended to offer the same defense of self-defense to both charges. State v. Huff, supra, 346.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides in 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. . . .”

       The defendant thereafter sought to bar his retrial on the charge of assault in the first degree in violation of General Statutes § 53a-59 (a) (1), claiming that further prosecution for that offense violated his double jeopardy rights. That motion was denied, and no double jeopardy claim is raised by the defendant in this appeal.

       General Statutes § 53a-59 (a) provides in part: “A person is guilty of assault in the first degree when ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person.”

       Practice Book § 623 provides: “If the trial has not commenced, the prosecuting authority may amend the information, or add additional counts, or file a substitute information. Upon motion of the defendant, the judicial authority, in his discretion, may strike the amendment or added counts or substitute information, if the trial or the cause would be unduly delayed or the substantive rights of the defendant would be prejudiced.”

       Practice Book § 624 provides: “After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information or indictment at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. An amendment may charge an additional or different offense with the express consent of the defendant.”

       The defendant does not contend, and the record does not show, that the challenged amendment of the information unduly delayed the trial. We do not, therefore, address this aspect of Practice Book § 623.


author: Norcott, J.

text:
    State of Connecticut v. Myles McCarthy
    (9440)
    Dupont, C. J., Nokcott and Foti, Js.
    Argued June 5
    decision released September 3, 1991

      Brian M. O’Connell, for the appellant (defendant).

      Margaret Gaffney Rodionovas, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Edward Wilson, deputy assistant state’s attorney, for the appellee (state).
   Norcott, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of cocaine in violation of General Statutes § 2 la-279 (a) and tampering with physical evidence in violation of General Statutes § 53a-155. He was given a total effective sentence of two years, execution suspended, probation for three years and a fine of $12,500. On appeal, the defendant argues that his conviction should be overturned because the amount of cocaine at issue cannot be classified as a quantity pursuant to § 21a-279 (a). We affirm the trial court’s judgment.

The jury could reasonably have found the following facts. While patrolling the parking area at an East Hartford restaurant shortly before 1 a.m. on July 1, 1989, Officer Robert Kornfeld of the East Hartford police department noticed a parked car with its interior light on. Kornfeld approached the car on the driver’s side from the rear and noticed three men inside including the defendant in the front passenger seat. Through the car’s windows, Kornfeld saw the defendant use two razor blades to chop a white substance into a powder on the dashboard. Believing the defendant was preparing to inhale cocaine, Kornfeld approached the car and identified himself as a police officer. The defendant then held the razor blades, the cocaine and a mirror out of the open passenger window. When Kornfeld told him to put his hand back inside the car, the defendant complied but threw everything into the air inside the vehicle.

Additional officers arrived at the scene and the three men were placed in a police cruiser. Kornfeld searched the car and recovered a piece of white paper with white powder on it, two razor blades, and “bits and pieces” of a white powdery substance from the dashboard, the front passenger seat and the rear seats. A state department of health services laboratory analysis subsequently showed the substance to be cocaine. No cocaine was detected on the razor blades, and the laboratory did not weigh the cocaine found in the car because it ordinarily does not do so when the amount of a substance is so small. Based on the lab analysis, a warrant for the defendant’s arrest was issued on December 9, 1989. At trial, department of health services toxicologist Joel Milzoff testified that, had the cocaine been weighed, it would have amounted to “milligram quantities or less.” The amount of the cocaine, he testified, represented “remnants of a consumable amount.” Komfeld testified that the powdery substance could “fit into several zeroes of [a] typewriter.”

The defendant claims that § 21a-279 (a) does not permit convictions for possession of illegal narcotics when the amount at issue is a quantity unusable for personal consumption. Our interpretation of § 21a-279 (a) must begin with the proposition that penal statutes are to be strictly construed. State v. Somerville, 214 Conn. 378, 385, 572 A.2d 944 (1990); State v. Mattioli, 210 Conn. 573, 579, 556 A.2d 584 (1989). This principle underlies the general rule of statutory interpretation that “ ‘the intent of the legislature is to be found not in what it meant to say, but in what it did say.’ ” State v. Roque, 190 Conn. 143, 150, 460 A.2d 26 (1983), quoting Gomeau v. Forrest, 176 Conn. 523, 526, 409 A.2d 1006 (1979). In ascertaining that intent, “ ‘ “[i]f the words are clear and unambiguous, ‘it is assumed that [they] express the intention of the legislature’ . . . and we need inquire no further.” ’ ” State v. Lubus, 216 Conn. 402, 407, 581 A.2d 1045 (1990), quoting State v. Mattioli, supra, 576. Further, interpretation of a penal statute “must accord with common sense and commonly approved usage of the language.” State v. Edwards, 201 Conn. 125, 132, 513 A.2d 669 (1986); State v. Roque, supra, 151. The “words used in a criminal statute should not be accorded the narrowest technical meaning in disregard of their context and in frustration of the obvious legislative intent.” State v. Hufford, 205 Conn. 386, 392, 533 A.2d 866 (1987). “ ‘A statute is not to be interpreted to thwart its purpose.’ ” State v. Roque, supra, quoting Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 489, 400 A.2d 726 (1978).

Section § 21a-279 (a) makes criminal the possession of “any quantity of any narcotic substance.” (Emphasis added.) See State v. Connelly, 194 Conn. 589, 593, 483 A.2d 1085 (1984). Our Supreme Court has repeatedly stated that “[t]he word ‘any’ has a diversity of meanings and may be used to indicate ‘all’ or ‘every’ as well as ‘some’ or ‘one’ and its meaning in a given statute depends upon the context and subject matter of the statute.” King v. Board of Education, 203 Conn. 324, 334, 524 A.2d 1131 (1987); West Hartford Taxpayers Assn., Inc. v. Streeter, 190 Conn. 736, 745, 462 A.2d 379 (1983); Donohue v. Zoning Board of Appeals, 155 Conn. 550, 556, 235 A.2d 643 (1967); Muller v. Town Plan & Zoning Commission, 145 Conn. 325, 328, 142 A.2d 524 (1958); see also New York, N. H. & H. R. Co. v. Stevens, 81 Conn. 16, 21, 69 A. 1052 (1908) (“any” is too comprehensive a word to receive a narrow construction). In State v. Connelly, supra, our Supreme Court rejected the defendant’s claim that the presence of .18 ounces of cocaine could not justify the forfeiture to the state of a car used in furtherance of criminal activity. The court stated that the prohibition in § 21a-279 (a) against “any quantity of any narcotic substance” is “precise language emphasizing that possession of‘any’amount . . . constitutes a crime . . . .” Id., 593.

Much like the defendant in Connelly, the defendant in this case asks this court to find that a conviction for possession of narcotics cannot stand when the amount of illegal narcotics involved is so small as to be unusable for personal consumption. In support of this argument, the defendant relies on decisions from other jurisdictions that held that less than measurable or usable amounts of a narcotic substance cannot sustain a conviction for possession of narcotics. See, e.g., State v. Moreno, 92 Ariz. 116, 120, 374 P.2d 872 (1962) (unusable amount insufficient to suppport conviction); Hawkins v. United States, 482 A.2d 1230, 1233 (D.C. App. 1984) (requiring more than a trace of cocaine); Payne v. United States, 294 A.2d 501, 503 (D.C. App. 1972) (unquantifiable amount results in failure of proof of evidence of a usable quantity); Edelin v. United States, 227 A.2d 395, 399 (D.C. App. 1967) (microscopic traces of heroin); Pelham v. State, 164 Tex. Crim. 226, 228-29, 298 S.W.2d 171 (1957) (unusable amount of marihuana not within meaning of possession statute); Greer v. Texas, 163 Tex. Crim. 377, 378, 292 S.W.2d 122 (1956) (trace amount of heroin on cotton in bottlecap).

We note that, notwithstanding the above cases, it is the majority view that any amount of a proscribed substance is sufficient to sustain a conviction for possession. See People v. Harrington, 396 Mich. 33, 42-45, 238 N.W.2d 20 (1976); People v. Mizell, 72 N.Y.2d 651, 654, 532 N.E.2d 1249, 536 N.Y.S.2d 21 (1988); note, “Criminal Liability for Possession of Nonusable Amounts of Controlled Substances,” 77 Colum. L. Rev. 596, 605-12 (1977). Despite this majority view, the defendant contends that our legislature intended to punish only the possession of usable amounts of illegal narcotics and advocates that this court adopt the minority view that possession of a mere trace or an unusable amount cannot constitute a crime. Numerous courts that have considered this issue have declined to impose minimum amount requirements. See, e.g., People v. Harrington, supra; State v. Humphreys, 54 N.J. 406, 411, 255 A.2d 273 (1969); People v. Mizell, supra; State v. Winters, 16 Utah 2d 139, 143, 396 P.2d 872 (1964). Even when the smallest amounts have been at issue, courts have nevertheless upheld convictions. See, e.g., Manuel v. State, 782 S.W.2d 335, 336 (Tex. Crim. App. 1989) (amount of cocaine equivalent to the size of four to six pinheads); Chavez v. State, 768 S.W.2d 366, 367-68 (Tex. Crim. App. 1989) (1.5 milligrams); Miller v. State, 723 S.W.2d 789, 790 (Tex. Crim. App. 1987) (.008 milligrams).

Despite the defendant’s urgings, we also decline to require any minimum amount or usability requirement before a conviction may be had pursuant to § 21a-279 (a). It is not the province of a court to read into a criminal statute a requirement not contained therein. State v. Duhan, 194 Conn. 347, 358, 481 A.2d 48 (1984). “ ‘[Cjourts should not imply exceptions to a statute which the legislature did not prescribe by word or implication.’ ” State v. Snook, 210 Conn. 244, 267, 555 A.2d 390 (1989), quoting Caulkins v. Petrillo, 200 Conn. 713, 719, 513 A.2d 43 (1986). Section § 21a-279 (a) neither contains nor implies any minimum amount or usability exception to its prohibition against the possession of illegal narcotics. Indeed, the defendant in his brief concedes that when the legislature enacted § 21a-279 (a), it intended to prevent drug use and did not provide for any amount or usability requirement. When a statute provides for punishment in such unequivocal language and provides for no exceptions, “ ‘it must be assumed that the legislature deemed that such enactment was necessary effectively to curb violation of the law, and we cannot impute to it an intent to make the statute less drastic and effective by adopting a strained construction of the language used, and reading into it an exception which does not there appear. . . .’ ” State v. One 1977 Buick Automobile, 196 Conn. 471, 485, 493 A.2d 874 (1985), quoting Alcorn v. Alexandrovicz, 112 Conn. 618, 623-24, 153 A. 786 (1931).

Moreover, our statutes proscribing illegal substances “reflect convincingly a strong legislative policy directed toward the complete suppression of narcotics such as heroin and cocaine.” (Emphasis added.) State v. Rawls, 198 Conn. 111, 123, 502 A.2d 374 (1985) (Dannehy, J., dissenting in part). For this court to impose a minimum amount or usability requirement would so constrict and narrow § 21a-279 (a) as to frustrate the legislature’s intention. Further, such a requirement would add uncertainly to the law. Courts that have adopted a minimum amount or usability standard have failed to offer any readily applicable definition of a usable amount. People v. Mizell, supra, 656. The unwieldy nature of such a test counsels against any usability or minimum amount requirement. “ ‘If the test were applied so that expert testimony admissible at trial would establish the standard, the result could well differ from courtroom to courtroom and expert to expert, and create the kind of uneven administration of justice we must avoid.’ ” Id., quoting People v. Harrington, supra, 46-47.

Although we are mindful of the defendant’s concerns about prosecutions based on microscopic amounts of illegal narcotics, the legislature has opted to rely in such cases on the judgment of prosecutors. Courts provide a check on the state’s accusatory powers, but we will not substitute our judgment for that of a prosecutor with respect to which cases should be tried and which are insignificant through the veil of a threshold amount or usability requirement not contained in § 21a-279 (a).

Because we affirm the defendant’s conviction for possession of narcotics, his challenges to the instructions to the jury on usability and to his conviction of tampering with physical evidence, based on the same arguments discussed above, must fail.

The judgment of the trial court is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-279 provides in pertinent part: “penalty for ILLEGAL POSSESSION. SUBSTITUTION OF MEDICAL TREATMENT FOR CRIMINAL sanctions, (a) 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.”

       General Statutes § 21a-279 (a) was then codified as § 19-480a. That statute was transferred to its present position in 1983.


author: Foti, J.

text:
    Mary G. Stillman v. Zoning Board of Appeals of the Town of Redding et al.
    (9736)
    (9737)
    Daly, Foti and Landau, Js.
    Argued April 23
    decision released September 3, 1991

      Michael N. LaVelle, for the appellant in the first appeal (named defendant).

      Marylouise S. Black, for the appellant in the second appeal (defendant Nancy H. Morgan).

      Thomas W. Beecher, for the appellee (plaintiff).
   Foti, J.

The defendants appeal from the judgment of the trial court reversing the defendant board’s decision to grant a variance to the defendant homeowner, Nancy H. Morgan. Morgan sought a variance of coverage and setback regulations from the Redding zoning board of appeals (board) in order to build an addition onto her house. The plaintiff, who is an adjoining landowner, opposed this variance before the board, and took an appeal to the Superior Court after the variance was granted. The trial court held that the board did not have the authority to grant the variance and that Morgan failed to demonstrate a legally cognizable hardship, and, therefore, reversed the decision of the board.

Having been granted certification, the defendants appeal to this court claiming (1) that the board acted within its authority in granting the variance and (2) that a legally sufficient hardship existed on Morgan’s property. We agree.

The board found the following facts. Morgan’s property is rectangular in shape and faces the south side of South Lane in Redding. The lot is located in a two acre zone, but is a legally nonconforming one-half acre lot. Morgan’s house is located on the east side of her property with a 26.9 foot setback at the western boundary of the plaintiff’s lot. Morgan’s garage is in the southeastern corner of her lot, between the house and the boundary line. The garage is also a legal nonconformity. Morgan’s septic tank is located to the south of the house, and her well was drilled to the west of the house.

This matter arose because Morgan proposed to construct an addition to her house in order to add a bathroom and a laundry room to the first floor. Morgan proposed to make these renovations because of her advancing age. This addition would enlarge the house by ninety-eight square feet by enclosing the currently recessed porch and by extending the east wall where the porch is located by 3.5 feet. The side yard setback would be reduced from 26.9 feet to 23.4 to facilitate this proposal. Morgan applied to the board, by application dated October 23,1989, for a variance from § 4.6 of the Redding zoning regulations requiring a side yard setback of forty feet, and for a variance from § 3.13 of those regulations to allow the addition to a nonconforming use that will decrease the side yard setback. The board granted the variance and the plaintiff appealed to the Superior Court.

In the trial court, the plaintiff argued (1) that the board was without authority to grant a variance where the regulations prohibit the expansion of a nonconformity, and (2) that Morgan did not show a legally cognizable hardship. The court sustained the plaintiff’s appeal, finding that the board did not have the authority to grant the variance and that no legally cognizable hardship existed. Citing Grillo v. Zoning Board of Appeals, 4 Conn. App. 205, 208, 493 A.2d 275 (1985), the court held that there was no hardship because Morgan failed to demonstrate “that the application of the regulation to the property greatly destroys its value for any of the uses to which it could reasonably be put and [that] the regulation, as applied, bears so little relationship to the purpose of zoning that, as to particular premises, the regulation has a confiscatory or arbitrary effect.”

The defendants first challenge the trial court’s determination that the board did not have the authority to grant the variance. The plaintiff argues that the legislature’s broad granting of power to local zoning boards of appeal was limited by the regulations promulgated by the local zoning commission regarding nonconforming uses.

General Statutes § 8-6 (3) empowers a zoning board of appeals “to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose . . . provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts where such uses are not otherwise allowed.”

In Wells v. Zoning Board of Appeals, 180 Conn. 193, 196-98, 429 A.2d 467 (1980), and Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 301, 429 A.2d 883 (1980), our Supreme Court construed zoning regulations that prohibited certain uses also to prohibit the issuing of variances for these uses. The plaintiff argues that these cases require by implication that the zoning regulations must explicitly authorize the issuance of variances before the zoning board of appeals can grant a variance that would expand a nonconforming use. The plaintiff reasons that because the zoning regulations from which Morgan sought a variance do not explicitly authorize the board to issue variances, the rule from Wells and Johnny Cake, Inc., prohibits the board from varying these regulations. We do not agree.

To interpret Wells and Johnny Cake, Inc., as broadly as the plaintiff suggests would violate the plain meaning of § 8-6. That statute grants broad powers to the zoning board of appeals and limits those powers only when the zoning commission passes a regulation explicitly limiting the issuance of variances.

Although the Supreme Court construed the zoning regulations in Wells and in Johnny Cake, Inc., to prohibit the respective zoning boards of appeals from issuing variances, the facts in this case make such a construction impossible. The town of Redding has a zoning regulation that delineates the zoning board of appeals’ authority to grant variances. Section 6.6 (b) of the Redding zoning regulations specifies that the zoning board of appeals shall have the power to “determine applications for variance . . . [but] shall not allow the creation, expansion, extension or intensification of non-residential uses in Residential Zones.” In light of this regulation and General Statutes § 8-6, we conclude that the board did have the authority to grant the variance sought by Morgan in this case.

The defendants’ second claim is that a legally sufficient hardship existed on Morgan’s property. The defendants argue that the trial court improperly reversed the board’s decision to grant Morgan a variance because the trial court did not apply the proper standard. The trial court determined upon its review of the record that any difficulties suffered by Morgan did not constitute a legally recognized hardship. The trial court gave the following formulation of the test for the existence of a hardship: “Exceptional difficulty or undue hardship is established where a board could reasonably find that the application of the regulation to the property greatly destroys its value for any of the uses to which it could reasonably be put and where the regulation bears so little relationship to the purpose of zoning that, as to the particular premises, the regulation has a confiscatory or arbitrary effect.” The trial court concluded that because the record is devoid of evidence that the property has little or no value because of the setback regulations, no hardship has been shown.

The defendants argue that the test applied by the trial court is overly restrictive and is not the proper test for establishing hardship in this case. We agree.

The test applied by the trial court was adopted from Grillo v. Zoning Board of Appeals, supra. This test is used in the extreme situation where the application of a regulation renders property practically worthless, and that loss of value alone amounts to a hardship. See Dolan v. Zoning Board of Appeals, 156 Conn. 426, 431, 242 A.2d 713 (1968). Although satisfying this test is a valid means of establishing a hardship, it is not exclusive.

A variance may be granted if the literal enforcement of a regulation causes exceptional difficulty or hardship because of some unusual characteristic of the property. General Statutes § 8-6 (3); Belknap v. Zoning Board of Appeals, 155 Conn. 380, 383, 232 A.2d 922 (1967). To support the granting of a variance, a hardship must arise from a condition different in kind from that generally affecting properties in the same zoning district and must be imposed by conditions outside the property owner’s control. See Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 658, 427 A.2d 1346 (1980); Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 238, 303 A.2d 743 (1972).

The defendants argue that a hardship exists on Morgan’s property because of the location of the well and the septic system, and because of the size of the lot. The placement of these improvements prevents Morgan from building an addition to her house anywhere except on the east side, which is prohibited by the setback requirement. These unique conditions make the setback regulation exceptionally burdensome and support the board’s granting of the variance.

The trial court also found that any hardship that was present was personal to Morgan and, therefore, not legally cognizable. See Garibaldi v. Zoning Board of Appeals, supra, 240. We disagree.

The hardship claimed by the defendants arises from the configuration of Morgan’s lot and the location of the well and the septic system. These conditions are not personal to Morgan and would exist no matter who owned the lot.

The plaintiff argues, as an alternative ground for affirming the trial court, that because the well and septic systems were installed by Morgan, any hardship they impose was self-created. We agree with the trial court that because the installation of these improvements predates the zoning regulations, the hardship created by their location cannot be considered self-created.

The judgment is reversed and the case is remanded with direction to render judgment affirming the board’s decision granting the variance.

In this opinion the other judges concurred.

       The trial court apparently believed that Morgan was claiming the circumstances regarding her advancing age as a hardship. It, therefore, found these circumstances to be personal and not capable of constituting a legally recognized hardship.


author: Lavery, J.

text:
    Lillian Nelson v. Stop and Shop Companies, Inc.
    (9675)
    O’Connell, Landau and La very, Js.

      Argued June 11
    decision released September 3, 1991

      William F. Gallagher, with whom were Donald G. Walsh and, on the brief, Elizabeth A. Gallagher, for the appellant (plaintiff).

      Dion W. Moore, with whom, on the brief, was Bruno deBiasi, for the appellee (defendant).
   Lavery, J.

The plaintiff appeals challenging the trial court’s granting of a motion to dismiss her personal injury action on the ground of improper service of process and its subsequent denial of her motions to reargue and to set aside the judgment of dismissal. The plaintiff claims that the trial court was incorrect in (1) granting the defendant’s motion to dismiss where the only evidence offered by the defendant was an affidavit that was contradictory on its face and failed to satisfy the defendant’s burden of proof, (2) refusing to set aside the judgment where the court had decided the motion to dismiss in a manner directly contradictory to the rule of law set out in Pantlin & Chananie Development Corporation v. Hartford Cement & Building Supply Co., 196 Conn. 233, 492 A.2d 159 (1985), and (3) making factual findings without hearing testimony.

The facts pertinent to the resolution of this appeal are as follows. On June 29, 1990, the plaintiff filed a personal injury suit against the defendant, a Massachusetts corporation with its principal place of business in Braintree, Massachusetts. The defendant is a supermarket chain with a number of supermarkets located in the state of Connecticut. A deputy sheriff attempted to serve the defendant corporation by leaving a true and attested copy of the writ, summons and complaint in the hands of Frank DeVince, operation store manager of one of the defendant’s supermarkets located on Whitney Avenue in Hamden.

In its motion to dismiss, the defendant alleged that leaving the writ, summons and complaint in the hands of the operation store manager at the Whitney Avenue store was improper in that it did not comply with the requirements of General Statutes § 52-57 (c) for service of process. In support of its motion, the defendant offered an affidavit signed by Raymond J. Bucci, Jr., that stated in part: “On information and belief, service of process, in the instant case, was made upon Frank DeVince, Operation Store Manager. While Mr. DeVince is an employee of the Stop & Shop Companies, Inc., he is not a president, vice-president, assistant vice-president, secretary, assistant secretary, treasurer, assistant treasurer, cashier, assistant cashier, teller, assistant teller, general or managing agent or manager. Neither is Mr. DeVince a director of the Stop & Shop Companies, Inc., and he has no authority to accept service of process on behalf of the Stop & Shop Companies, Inc.

“The first notice the Stop & Shop Companies, Inc., had of the existing lawsuit was by virtue of a letter dated August 7,1990, from plaintiffs counsel indicating that no appearance had been received and that he would soon be moving for a default for failure to appear.” (Emphasis added.)

Although this affidavit was signed by Bucci, it contains no other identification of the affiant nor does it indicate his capacity to make the assertions contained therein. At the hearing on the motion to dismiss, the defendant's attorney stated that the affiant is an officer of the company, but he admitted he did not know Bucci.

The plaintiff filed an affidavit signed by the deputy sheriff who had served DeVince, that states in pertinent part: “On June 27, 1990, I went to the Stop & Shop Company on 1245 Dixwell Avenue, Hamden, Connecticut, identified myself and stated the purpose for which I was there.

“I was referred to Mr. Frank DeVince, who identified himself as the Operation Store Manager. I identified myself and stated that I was there to serve papers upon the Stop & Shop Companies, Inc.
“Mr. DeVince accepted the papers, and never indicated that he was unauthorized to accept service.”

No testimony or other evidence was offered by the plaintiff or the defendant. After oral argument, the court granted the motion to dismiss. The motion to reargue and the motion to set aside the dismissal were denied, and the plaintiff brought the present appeal. No testimony or evidence was offered on the motions to reargue and to set aside.

On appeal, the defendant argues that service of process was not made in accordance with the provisions of § 52-57 (c) because the operation store manager of the branch supermarket was not the “general or managing agent or manager” of the defendant.

The trial court, in its response to a motion for articulation, stated in pertinent part: “Connecticut courts have not defined ‘manager’ under [General Statutes § 52-57 (c)]. . . . The facts do not reveal that the individual served has sufficient authority to be qualified to receive service of process. Requiring employees to be entrusted with responsibility ensures that appropriate officials will be notified that process has been served upon the corporation. The operations store manager of one of hundreds of stores is not the manager of a foreign corporation contemplated by the statute.”

The dispositive issue in this case is whether the plaintiff’s failure to offer any evidence on the duties of the person served is fatal to her opposition to the defendant’s motion to dismiss based on defective service. We conclude that the plaintiff’s failure to offer evidence or testimony relating to the position and responsibilities of the individual accepting service on behalf of the defendant is fatal, and we affirm the judgment of the trial court.

When a person upon whom service is to be made is designated by statute, service upon any other person as a purported representative is inadequate. Tarnopol v. Connecticut Siting Council, 212 Conn. 157, 561 A.2d 931 (1989).

As the trial court stated in its articulation, our appellate courts have not defined “manager” under § 52-57 (a). In Reed v. Ibsen Bros., Inc., 31 Conn. Sup. 160, 161 (1974), however, the Superior Court has identified relevant factors to be considered when a court undertakes a determination of who is a managing agent authorized to accept service of process on behalf of a private corporation. Such a determination requires that the fact-finder establish whether the duties of that person are such that the corporation would, in the normal course, be informed that the service has been made. We adopt this standard and hold that under § 52-57 (c) the terms “or its general or managing agent or manager” are concommitant terms meaning a person whose position, rank, duties and responsibilities make it reasonably certain that the corporation will be apprised of service made upon that person. 17 A.L.R.3d 625, 630.

A determination of the position, rank, duty and responsibilities of the person served is a question of fact. Our Supreme Court has held that in cases where constructive service of process is employed and, “[w]hen a motion to dismiss for lack of personal jurisdiction raises a factual question not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction.” Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 54, 459 A.2d 503 (1983). Thus, the burden of proving whether the operation store manager met the criteria required by the statute was on the plaintiff.

In the case before us, no evidence was offered by the plaintiff from which the factfinder could determine the duties of the individual who was served with process, nor did the plaintiff seek a continuance for the purpose of obtaining such evidence. The plaintiff offered an affidavit stipulated to by the defendant stating what the serving officer did, but the plaintiff did not seek to offer testimony concerning the position, rank, duties and responsibilities of the operation store manager who was served. The trial judge is a neutral arbiter and it is not his responsibility to instruct counsel. Swenson v. Dinner, 183 Conn. 289, 298, 439 A.2d 334 (1981). On the basis of the facts before it, the trial court found that the individual served lacked sufficient authority to be an appropriate agent for service of process on the defendant. Because the plaintiff did not sustain her burden of proof of the operation store manager’s authority, we affirm the judgment of the trial court.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-57 (c) provides: “In actions against a private corporation, service of process shall be made either upon the president, the vice president, an assistant vice president, the secretary, the assistant secretary, the treasurer, the assistant treasurer, the cashier, the assistant cashier, the teller or the assistant teller or its general or managing agent or manager or upon any director resident in this state, or the person in charge of the business of the corporation or upon any person who is at the time of service in charge of the office of the corporation in the town in which its principal office or place of business is located. In actions against a private corporation established under the laws of any other state, any foreign country or the United States, service of process may be made upon any of the aforesaid officers or agents, or upon the agent of the corporation appointed pursuant to section 33-400.”


author: O’Connell, J.

text:
    State of Connecticut v. James Fiasconaro
    (8825)
    Spallone, O’Connell and Cretella, Js.
    Argued June 7
    decision released September 3, 1991

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were MarkS. Solak, state’s attorney, Vincent Dooley, assistant state’s attorney, and
      MaryJean Kanabis, deputy assistant state’s attorney, for the appellant (state).

      James Fiasconaro, pro se, the appellee (defendant).
   O’Connell, J.

The state appealed, with the trial court’s permission, from the dismissal of its amended information charging the defendant with the crime of acting as a professional bondsman without a license in violation of General Statutes § 29-145. The state contends that the court mistakenly required an allegation of receiving a tangible benefit in return for posting bail. The state also claims that the trial court improperly distinguished between a person who obtains the pretrial release of an individual by posting cash bail and one who posts a surety bond.

The following facts are relevant to a determination of this appeal. The defendant was accused of posting cash bail for five separate individuals on five separate occasions between July 25 and November 26, 1988, without having obtained a state license to engage in the business of a professional bondsman. The trial court granted the defendant’s motion to dismiss the information on the ground that it failed to allege that the defendant received a tangible benefit for posting such bail. The court in support of its decision attempted to distinguish between cash bail and surety bonds as the term “bail” applies to this statute. We reverse the judgment of the trial court.

General Statutes § 29-144 provides in pertinent part: “Any person . . . who furnishes bail in five or more criminal cases in any one year, whether for compensation or otherwise, shall be deemed a professional bondsman . . . (Emphasis added.) General Statutes § 29-145 requires a professional bondsman to be licensed. Neither § 29-144 nor § 29-145 makes a distinction between posting cash bail and posting bail by means of a surety bond. Furthermore, we do not find that General Statutes § 54-66 supports the trial court’s conclusion that there is such a distinction for purposes of a prosecution under § 29-145.

The statute is unambiguous and the state’s information clearly alleged sufficient facts to charge a violation of § 29-145. A court cannot by construction read a provision into legislation that is not clearly stated therein. Lucarelli v. State, 16 Conn. App. 65, 68-69, 546 A.2d 940 (1988). Nor may a court substitute its own idea of what might be a wise provision in place of a clear expression of legislative will. Sutton v. Lopes, 201 Conn. 115, 119, 513 A.2d 139, cert. denied, 479 U.S. 964, 107 S. Ct. 466, 93 L. Ed. 2d 410 (1986). Section 29-144 expressly exempts the state from showing that the defendant received compensation. Accordingly, it was improper for the trial court to read into the definition of a professional bondsman a requirement that he receive a tangible benefit for posting bail. The information should be reinstated.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       General Statutes § 29-145 provides in pertinent part: “Any person desiring to engage in the business of a professional bondsman shall apply to the commission of public safety for a license therefor.”

       The trial court properly declined to consider the validity of General Statutes § 29-144 as applied to a defendant who posts bail more than five times within one year for himself or a member of his family because the facts of this case do not require such determination.

       General Statutes § 54-66 provides: “ACCEPTANCE AND DISPOSITION OF BAIL. In any criminal case in which a bond is allowable or required and the amount thereof has been determined, the accused person, or any person in his behalf, (1) may deposit, with the clerk of the court having jurisdiction of the offense with which the accused stands charged or any assistant clerk of such court who is bonded in the same manner as the clerk or any person or officer authorized to accept bail, a sum of money equal to the amount called for by such bond, or (2) may pledge real property, the equity of which is equal to the amount called for by such bond, provided the person pledging such property is the owner of such property, and such accused person shall thereupon be admitted to bail. When cash bail is offered, such bond shall be executed and the money shall be received in lieu of a surety or sureties upon such bond. Such cash bail shall be retained by the clerk of such court until a final order of the court disposing of the same is passed; provided, if such bond is forfeited, the clerk of such court shall pay the money to the payee named therein, according to the terms and conditions of the bond.”


author: Landau, J.

text:
    State of Connecticut v. Terry Alan Rice
    (8295)
    Spallone, Daly and Landau, Js.
    Argued May 29
    decision released September 3, 1991

      Carol R. Goldberg, assistant public defender, with whom, on the brief, was William Holden, public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorey, with whom, on the brief, were Donald A. Browne, state’s attorney, and Linda V. Howe, assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant was tried to a jury on an information charging him with robbery in the first degree pursuant to General Statutes § 53a-134 (a) (4). He was convicted and claims on appeal (1) that the trial court failed to instruct the jury adequately on the essential elements of the offense and thus deprived the defendant of his due process rights, (2) that the trial court improperly instructed the jury on unsupported theories of liability, and (3) that the evidence was insufficient to support a conviction of robbery in the first degree. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury could reasonably have found the following facts. On August 7, 1988, at approximately 1 p.m., the victim was standing on the sidewalk at a bus stop in Bridgeport. The defendant drove a red Ford Taurus past him, backed up and parked parallel to the sidewalk in front of him. The victim was facing the passenger side of the vehicle. The defendant got out of the car, walked around it, approached the victim and demanded his jewelry. The victim did not acquiesce. After the defendant repeated his demand, and the victim again did nothing, another man exited from the passenger side of the car and displayed a .357 magnum gun. The victim then gave the defendant two rings, a chain and some money.

The defendant first claims that the trial court failed to inform the jury that it must find that the defendant had the intention to display a gun or had knowledge that a gun was displayed in order to convict him of robbery in the first degree pursuant to § 53a-134 (a) (4). He claims that this knowledge or intent is an essential element of the crime. We do not agree.

The state, in its substitute information, charged that “in the course of the commission of the crime another participant displayed what he represented by his words and conduct to be a firearm” in violation of § 53a-134 (a) (4).

A plain reading of the statute indicates that a defendant need not possess the intent to display or threaten to use the weapon himself. Rather, the statute requires that the defendant have the intent to deprive another of property and does so by physical force. The crime is then classified as robbery in the first degree if the defendant or another participant displays or threatens to use a firearm. General Statutes § 53a-134 (a) (4); see State v. Rivera, 200 Conn. 44, 509 A.2d 505 (1986). The intent to display the gun or the knowledge of its existence, therefore, is not an essential element of the crime and the defendant’s claim is without merit.

The defendant also claims that the trial court improperly charged the jury on accessorial liability because this theory is unsupported by the evidence.

“It is well established in this state that there is no such crime as ‘ “being an accessory.” ’ State v. Foster, 202 Conn. 520, 528, 522 A.2d 277 (1987). Rather, the accessory statute, General Statutes § 53a-8, merely provides an alternative theory under which liability for the underlying substantive crime may be proved. State v. Harris, 198 Conn. 158, 163, 502 A.2d 880 (1985). ‘[A] defendant may be convicted as an accessory even though he was charged only as a principal as long as the evidence presented at trial is sufficient to establish accessorial conduct.’ State v. Fleming, 198 Conn. 255, 268 n.15, 502 A.2d 886, cert. denied, 465 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986).” State v. Hopkins, 25 Conn. App. 565, 568-69, 595 A.2d 911 (1991). Therefore, the fact that the defendant was not formally charged as an accessory does not preclude his being convicted as such. State v. Crump, 201 Conn. 489, 493, 518 A.2d 378 (1986).

A trial court is required to give jury instructions that are accurate in law, adapted to the issues and adequate to guide the jury in reaching a correct verdict. State v. Butler, 207 Conn. 619, 636, 543 A.2d 270 (1988). A review of the record reveals that the trial court, on the basis of the nature of the charge, the involvement of a participant, and the evidence, properly instructed the jury on accessorial liability.

The defendant, as part of his second claim, also states that “[t]he court stated for the jury that ‘the evidence in the case, quite obviously, suggests that another individual—that more than one individual [was] involved in this robbery.’ ” The defendant asserts that by making this statement the court “found for the jury that it was a robbery that occurred, thus taking the decision out of the hands of the jury.” A review of the record reveals that in actuality the court stated “that more than one individual is involved in this alleged robbery.” (Emphasis added.) The defendant’s claim, therefore, is wholly without merit.

Finally, the defendant argues that the evidence adduced at trial was insufficient to sustain a conviction for robbery in the first degree.

“Appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task: We must first review the evidence construing it in the light most favorable to sustaining the trial court’s verdict. . . . ‘ “ ‘We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt . . . . ’ ” ’ ” (Citations omitted.) State v. Avis, 209 Conn. 290, 309, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989).

Construing the evidence in the light most favorable to sustaining the trial court’s judgment, we conclude that the jury reasonably found that the defendant was guilty beyond a reasonable doubt. The evidence reasonably supported a finding that the defendant had the intent to deprive the victim of his jewelry, that he wrongfully obtained the victim’s property by threatening the immediate use of physical force, and that the defendant’s companion during the commission of this crime displayed a firearm.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 provides in pertinent part: “robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime 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 .... Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.”

       Robbery occurs when “in the course of committing a larceny, [a person] uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.” General Statutes § 53a-133.
      Larceny occurs when “with intent to deprive another of property or to appropriate the same to himself or a third person, [a person] wrongfully takes, obtains or withholds such property from an owner.” General Statutes § 53a-119.


author: Per Curiam.

text:
    CNA Insurance Company v. Frank Colman et al.
    (9846)
    Dupont, C. J., Foti and Landau, Js.
    Argued June 3
    decision released September 3, 1991

      Laurence V. Parnoff, with whom, on the brief, was Kathryn L. Braun, for the appellant (defendant).

      Jan C. Trendowski, with whom, on the brief, was Justin J. Donnelly, Sr., for the appellee (plaintiff).
   Per Curiam.

This case presents the issue of whether the Connecticut workers’ compensation statute bars an employee from seeking recovery from the underinsurance benefits available under his employer’s personal automobile liability policy. Because we hold that the exclusive remedy provisions of the workers’ compensation statute, General Statutes § 31-284, do not prohibit an employee from obtaining benefits pursuant to the underinsurance coverage of his employer’s personal automobile policy, we reverse the decision of the trial court granting the plaintiff’s application to vacate an arbitration award.

The defendant was injured in an automobile collision while acting within the scope of his employment and operating an automobile owned by his employer. His employer’s automobile, along with three other vehicles owned by the employer, was insured under a personal automobile policy issued by the plaintiff insurance company. Each of the vehicles carried $40,000 in uninsured-underinsured motorist coverage. After exhausting the tortfeasor’s liability coverage of $20,000 and receiving workers’ compensation benefits of $38,758.67, the defendant commenced a compulsory arbitration proceeding seeking underinsured motorist benefits from his employer’s underinsured motorist coverage.

The arbitration panel concluded that the Connecticut workers’ compensation statute does not preclude further recovery against the employer’s underinsured motorist coverage. The plaintiff then filed an application to vacate the arbitration award. The trial court granted that application, concluding that the defendant’s claim is barred by this court’s decision in Ross v. New Haven, 19 Conn. App. 169, 561 A.2d 457, cert. granted, 212 Conn. 814, 565 A.2d 536 (1989). After Ross was decided, however, our Supreme Court effectively overruled Ross in the case of Wilson v. Security Ins. Co., 213 Conn. 532, 569 A.2d 40, cert. denied, U.S. , 111 S. Ct. 52, 112 L. Ed. 2d 28 (1990).

In Wilson, an employee was allowed to recover uninsured motorist benefits where the employer had obtained a separate uninsured motorist policy from an outside insurer. We have concluded in our recent case of Bouley v. Norwich, 25 Conn. App. 492, 595 A.2d 884 (1991), that Wilson is the present law and that there should not be any difference between an employer who is a self-insurer and an employer who obtains insurance from an independent insurance company. In either case, the exclusivity provision of General Statutes § 31-284 does not bar an employee who has received workers’ compensation benefits from also obtaining uninsured or underinsured motorist benefits reduced by any workers’ compensation benefits paid or payable.

The judgment is reversed and the case is remanded with direction to render judgment denying the plaintiff’s application to vacate the arbitration award.

       General Statutes § 31-284 provides as follows: “(a) An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment . . . but an employer shall secure compensation for his employees as follows. ... All rights and claims between employer and employees . . . arising out of personal injury . . . sustained in the course of employment . . . are abolished other than rights and claims given by this chapter, provided nothing herein shall prohibit any employee from securing, by agreement with his employer, additional benefits from his employer for such injury or from enforcing such agreement for additional benefits.”

       The wife of Frank Colman, Shirley Colman, is also a defendant. As used in this decision, defendant refers to the named defendant.

       After the Supreme Court granted the plaintiff’s petition for certification, the appeal was withdrawn.


text:
    State of Connecticut v. George Arline
    (8453)
    Dupont, C. J., Foti and Landau, Js.
    Argued April 30
    decision released September 3, 1991

      Thomas TJllman, assistant public defender, with whom, on the brief, was Shawn G. Tieman, deputy assistant public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary Elizabeth Baran, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant was convicted of one count of sexual assault in the first degree in violation of General Statutes § 53a-70. On appeal, he claims that the trial court (1) incorrectly refused to allow the defendant access to the victim’s inpatient alcohol treatment records and psychiatric evaluation, thus violating the defendant’s sixth amendment right to confrontation, (2) improperly refused to charge on a lesser included offense, (3) unconstitutionally limited the defendant’s final argument, and (4) incorrectly denied the defendant’s motion for mistrial based on prosecutorial misconduct. We affirm the judgment of the trial court.

The jury could reasonably have found certain relevant facts from the evidence adduced at trial. On December 28,1987, the victim was incarcerated at the New Haven community correctional center after having been sentenced to ninety days for two motor vehicle offenses. He was assigned to a two person cell. Shortly after lights out and the first bed check, the victim was sexually assaulted by his cell mate, the defendant. The victim reported the incident two days later to medical personnel at a correction facility to which he was transferred the day after the assault.

During the trial, outside the presence of the jury, the victim testified that on December 28, 1988, he had voluntarily entered a thirty day treatment program for alcoholism at Gaylord Hospital. Further questioning revealed that the victim had received no other inpatient treatment either before the alleged sexual assault or up to the time of his trial testimony. While attending the Gaylord program, the victim had a psychiatric interview and evaluation. The state objected to the defendant’s line of questioning about the psychiatric record of the victim, which concerned a date subsequent to the alleged sexual assault, and to the defendant’s request for the record of that hospitalization of the victim. The state argued that the time of the hospitalization, one year after the assault and five months before trial, rendered those records irrevelant. The trial court sustained the state’s objection. The defendant argues that he was denied his constitutional right to confrontation because this ruling denied him the opportunity “to reveal to the jury facts about a witness’ mental condition that may reasonably affect that witness’ credibility.” State v. D'Ambrosio, 212 Conn. 50, 57, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990).

There is a well recognized and much discussed conflict between a witness’ statutory privilege of confidentiality in his psychiatric records and a criminal defendant’s constitutional right to cross-examination. State v. D'Ambrosio, supra; State v. Hufford, 205 Conn. 386, 533 A.2d 866 (1987); State v. Pierson, 201 Conn. 211, 227, 514 A.2d 724 (1986); State v. Storlazzi, 191 Conn. 453, 457, 464 A.2d 829 (1983). Our Supreme Court has evolved a procedure to reconcile these competing interests which requires the defendant to make a threshold showing of a reasonable ground to believe that denying the defendant access to the witness’ records would impair his right to impeach the witness. State v. D’Ambrosio, supra, 58. “If in the trial court’s judgment the defendant successfully makes this showing, the state must then obtain the witness’ permission for the court to inspect the records in camera. A witness’ refusal to consent to such an in camera inspection entitles the defendant to have the witness’ testimony stricken.” Id.

The defendant must, therefore, be permitted a certain latitude in his questioning of the witness so that the defendant has a fair opportunity to make a threshold showing. The questions on review here are whether the court abused its discretion by limiting the defendant’s questioning of the victim, and, if not, whether the defendant successfully made his threshold showing. We conclude that the answer to both these questions is no.

Here, as in D Ambrosio, the precise showing that had to be made was whether “there was a reasonable probability that ... ‘at any pertinent time’ [the defendant’s] alcohol problem affected his testimonial capacity.” Id., 59. There are two times at which a witness’ possible mental unsoundness is relevant. One of those is the time of trial, and the other is the time of the incident about which the witness is to testify. State v. Herring, 210 Conn. 78, 109, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). Here, unlike D Ambrosio, there was no evidence that the victim was intoxicated at the time of the incident. The defendant did not inquire of the victim whether he was drinking heavily at or around the time of trial, or whether he was abusing alcohol on either of the two days of his testimony. The victim, however, testified that he never had suffered from delirium tremens and that he never had been admitted to an emergency room for alcoholism. He also testified that he had not suffered from blackouts prior to December, 1987. The record, therefore, does not indicate any long-term impairment of credibility. The hospitalization itself was remote in time from the incident. These facts do not suggest a relevant impairment of testimonial capacity. In this context, the trial court did not abuse its discretion in concluding that the victim’s hospitalization was too remote from either pertinent time to be relevant. Cf. State v. Pettersen, 17 Conn. App. 174, 179-80, 551 A.2d 763 (1988). Thus, we conclude that the defendant failed to make a preliminary showing that there was a reasonable probability that the hospital records were material. Without this requisite showing of materiality, no further steps under D ’Ambrosio were needed.

The defendant’s second claim is that the trial court incorrectly refused to charge on the lesser included offense of third degree sexual assault in violation of General Statutes § 53a-72a (a) (1) (A), because the definition of sexual contact pursuant to General Statutes (Rev. to 1987) § 53a-65 (3) and General Statutes § 53a-65 (8), makes it impossible to commit the greater crime, sexual intercourse by the use of force, without having first committed the lesser offense.

The state concedes that sexual assault in the third degree as prohibited in § 53a-72a (a) (1) (A) is a lesser included offense of first degree sexual assault. The elements of each crime are virtually the same, except that the latter requires sexual intercourse and the former only sexual contact. A defendant is entitled to an instruction on a lesser offense if four prerequisites are met, one of which is that it is not possible to commit the greater offense without first having committed the lesser. State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). The defendant thus meets the first two requirements of the Whistnant test, namely: “(1) an appropriate instruction is requested by . . . the defendant; [and] (2) it is not possible to commit the greater offense . . . without having first committed the lesser . . . .’’Id.

The defendant’s “claim focuses on the third and fourth requirements of the well established Whistnant test for determining whether a defendant is entitled to a lesser included offense instruction. State v. Whistnant, [supra,] 588. Those requirements are that ‘(3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense, but guilty of the lesser.’ Id.” State v. Montanez, 219 Conn. 16, 21-22, 592 A.2d 149 (1991).

The defendant claims that proof of sexual intercourse as required by the greater offense is sufficiently in dispute to permit the jury to find him not guilty of first degree sexual assault, but guilty of the lesser crime. He points to the lack of medical evidence indicating traumatic injury to the victim. Such injury, he asserts, would be the natural result of the abrupt, forcible, unlubricated anal penetration described in the victim’s testimony. The state is required to prove penetration beyond a reasonable doubt to obtain a conviction on first degree sexual assault. State v. Artis, 198 Conn. 617, 621, 503 A.2d 1181 (1986). The defendant argues, therefore, that the lack of medical evidence of penetration could cast doubt on an essential element of the crime charged. The defendant further asserts that this lack of evidence would lead the jury, if properly instructed, to conclude that the crime complained of was merely forcible sexual contact, that is, sexual assault in the third degree. In order for the defendant to have been entitled to the lesser included offense charge that he requested, the evidence must have been such that the jury could reasonably conclude that the defendant compelled the victim to submit to some form of sexual conduct other than intercourse.

Considering the evidence in a light most favorable to the defendant’s request, as we are required to do; State v. Herring, 210 Conn. 78, 106, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989); we conclude that the defendant was not entitled to a charge on sexual assault in the third degree. Although the defendant throughout his brief refers to the victim as “the eyewitness,” the victim in fact did not testify to what he saw, but rather to what he felt. In a brief but graphic passage, he describes being forced face down on his bunkbed and experiencing the pain of anal penetration. The absence of conclusive corroborative medical evidence of penetration might tend to show that the defendant did not commit first degree sexual assault at all; see State v. Herring, supra; but there is no evidence justifying a conviction of the lesser offense. An alternative version of the incident, namely, mere sexual contact, is unsupported by the evidence.

The facts presented here were not “sufficiently in dispute” to support an instruction on the lesser included offense of third degree sexual assault. See State v. Maselli, 182 Conn. 66, 72, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 868, 66 L. Ed. 2d 807 (1981). The defendant sought, through cross-examination and the introduction of expert testimony, to attack the credibility of the victim. The defendant did not suggest, through his questioning of witnesses, that there was only sexual contact rather than sexual intercourse. Jurors should not be encouraged to engage in speculation; State v. Manley, 195 Conn. 567, 580, 489 A.2d 1024 (1985); and, on these facts, an instruction on the lesser offense could have engendered only such speculation. Because there was no evidence to justify conviction of sexual assault in the third degree and because the proof of sexual intercourse was not sufficiently in dispute for the jury to conclude that the defendant was guilty, not of first degree sexual assault, but of sexual contact, the court did not have to charge on the lesser included offense. Cf. State v. Edwards, 214 Conn. 57, 67-68, 570 A.2d 193 (1990).

The defendant’s third claim is that the trial court improperly precluded comment on certain issues by the defendant during closing argument thereby violating his sixth amendment right to effective assistance of counsel. We disagree.

During a voir dire outside the presence of the jury, the victim testified that subsequent to the incident and his release from jail he was arrested for violation of probation, first degree larceny, attempted third degree burglary and motor vehicle charges. These charges were nolled. There were also pending against the victim charges of sixth degree larceny and driving while his license was under suspension. The victim later testified before the jury that after the incident he was released from the correctional facility after thirty days, instead of ninety. It was also revealed to the jury that a civil lawsuit based on the assault had been filed against the state on the victim’s behalf. The victim, however, also testified that he was unaware of the lawsuit and never gave his attorney authority to file it. The defendant asserts that he should have been allowed to use these facts during closing argument to suggest that the victim had fabricated his account of the sexual assault. The trial court granted the state’s motion for a cautionary ruling to prevent the defendant’s argument on the ground that the argument would be strictly speculation and without basis in the evidence.

“ ‘Counsel may comment upon facts properly in evidence and upon reasonable inferences to be drawn from them. State v. Kinsey, 173 Conn. 344, 348, 377 A.2d 1095 (1977). Counsel may not, however, comment on or suggest an inference from facts not in evidence. State v. Manley, [supra]. In general, the scope of final argument lies within the sound discretion of the court; Schwartz v. Waterbury Public Market, Inc., 6 Conn. App. 429, 437, 505 A.2d 1272 (1986); subject to appropriate constitutional limitations. Herring v. New York, 422 U.S. 853, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975) (complete denial of right to argue violates sixth amendment).’ (Emphasis in original.) State v. Huff, 10 Conn. App. 330, 523 A.2d 906, cert. denied, 203 Conn 809, 525 A.2d 523 (1987).” State v. Ross, 18 Conn. App. 423, 432, 558 A.2d 1015 (1989).

The victim testified that his testimony was not given in exchange for lenient treatment. Upon objection by the state, the trial court did not allow the defendant to question the victim about the factual basis of his pending or nolled charges. The trial court did, however, permit limited cross-examination of the victim concerning the disposition of certain cases as it pertained to favorable treatment. The trial court also granted permission to the defendant to call other witnesses, specifically, the prosecutors and attorneys involved in the other cases. These witnesses were not called, and no evidence was produced that would support the defendant’s theory that the victim fabricated a story in exchange for favorable treatment or because of a pending civil lawsuit. His claim, therefore, remained speculation and the trial court properly refused to allow comment about it.

The defendant’s last claim is that improper arguments during closing argument by the state denied him a fair trial. In particular, he claims that a question by the prosecutor to the jury was an unconstitutional comment on the defendant’s failure to testify. The question was: “What motive does George Arline have to come and deny it?” The defendant further asserts that other comments of the prosecuting attorney injected extraneous issues into the case, improperly encouraged the jury to identify with the victim, and were expressions of personal opinion. He claims, therefore, that the trial court incorrectly denied his motion for mistrial and for a new trial.

The test for evaluating a prosecutor’s argument is: “Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify?” United States ex rel. Leak v. Follet, 418 F.2d 1266, 1269 (2d Cir.), cert. denied sub nom. Leak v. Follette, 397 U.S. 1050, 90 S. Ct. 1388, 25 L. Ed. 2d 665 (1970); State v. Walker, 206 Conn. 300, 307, 537 A.2d 1021 (1988). The prosecutor’s comments are arguably improper if they can be construed to refer to actions that the defendant has no duty to assume. The comment is ambiguous, however, and, in the context of the defendant’s counsel’s argument about the credibility of the victim, is not one that would “naturally and necessarily” focus the attention of the jury on the defendant’s failure to testify. Cf. State v. Walker, supra, 309-311. Additionally, the trial court gave curative instructions directly after the defendant objected to this statment of the prosecuting attorney. We do not deem this single comment so egregious that the court’s instruction would fail to cure it.

“[A] prosecutor should not inject extraneous issues into the case that divert the jury from its duty to decide the case on the evidence. ABA Standards [for Criminal Justice (Second), The Prosecution Function § 3-5.8 (1985)].” State v. Williams, 204 Conn. 523, 547, 529 A.2d 653 (1987). Here, the defendant claims that the prosecutor injected extraneous issues into the trial by putting the hostile environment of the jail on trial. Review of the record reveals, however, that the atmosphere of the jail was discussed by several witnesses in addition to the victim and was directly relevant to questions raised about the timing of the victim’s report of the incident. Similarly, what the defendant describes as the prosecution’s attempt to have the jury identify with the victim had its basis in the victim’s description of the incident. Cf. id., 548.

The defendant also asserts that before the prosecutor’s closing argument, the prosecutor improperly-argued to the jury that the defense counsel would argue that the victim was lying. Considering that much of the defendant’s case consisted of attacks on the victim’s credibility, we do not find this suggestion by the prosecutor to be grounds for a new trial.

The defendant also claims that comments about the defendant’s expert witness amounted to expressions of personal opinion by the prosecutor. “The prosecutor may not express his own opinion, either directly or indirectly, as to the credibility of witnesses. . . . Nor may he express his opinion, directly or indirectly, as to the guilt of the defendant.” (Citations omitted.) Id., 541. None of the remarks complained of here is an opinion about the guilt of the defendant. The statements regarding the defendant’s expert witness refer to the evidence produced that the witness, a gynecologist and obstetrician, had never examined the victim, and, in fact, had never examined a male rape victim. The prosecutor’s statements, while hyperbolic, were not personal attacks on the doctor’s credibility but were permissible commentary on the weight to be afforded his testimony.

Finally, the defendant claims that the prosecutor appealed to the jurors’ emotions by addressing them as “the criminal justice system.” We recently analyzed a similar statement made in the course of a jury charge. State v. McFadden, 25 Conn. App. 171, 593 A.2d 979 (1991). There we held that such a comment neither deprived the defendant of a fair trial nor constituted plain error when the trial court’s instruction thoroughly informed the jury of its duty. Id. The same reasoning applies here. The trial court’s instructions were sufficient to cure any improper remarks of the prosecutor.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1987) § 53a-70 (a) provides: “A person is guilty of sexual assault in the first degree when such person 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 a third person.”

       The confidentiality of psychiatric records is protected by General Statutes §§ 52-146d and 52-145e.

       General Statutes § 53a-72a provides in pertinent part: “(a) A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person . . .

       General Statutes (Rev. to 1987) § 53a-65 (3) provides: “ ‘Sexual contact’ means any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or any contact of the intimate parts of the actor with a person not married to the actor for the purpose of sexual gratification of the actor.”
      General Statutes § 53a-65 (8) provides: “ ‘Intimate parts’ means the genital area, groin, anus, inner thighs, buttocks or breasts.”

       Prior to 1985, when contact with the intimate parts of the actor was added to the definition, General Statutes § 53a-65 (8) described sexual contact only as the touching of the victim’s intimate parts. It was, therefore, possible, by legal definition, to compel a victim to submit to certain forms of intercourse without committing “sexual contact” as prohibited by the statute. State v. Martin, 187 Conn. 216, 220-21, 445 A.2d 585 (1982).
      The defendant also claims that the trial court abused its discretion by denying his request for a bill of particulars so that the state would amend its information to particularize the kind of sexual intercourse alleged. Because the state concedes that third degree sexual assault is a lesser included offense of first degree sexual assault, we need not reach this issue.