author: Bieluch, J.

text:
    State of Connecticut v. Bobby J. Bell
    (4887)
    Borden, Bieluch and O’Connell, Js.
    Argued November 10, 1987 —
    decision released February 9, 1988

      Martin Zeldis, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Nancy L. Walker, special assistant state’s attorney, for the appellee (state).
   Bieluch, J.

The defendant appeals from the judgment of conviction, after a jury trial, of robbery in the third degree in violation of General Statutes § 53a-136d and assault of a victim sixty years or older in the third degree in violation of General Statutes § 53a-61a. The defendant claims: (1) that the trial court erred by denying his motion to suppress the victim’s out-of-court identification, and in admitting her subsequent in-court identification when such identifications were allegedly unnecessarily suggestive and unreliable; (2) that the prosecutor’s misconduct deprived him of a fair trial when, in his closing argument to the jury, he attacked the credibility of a defense alibi witness by misstating facts in evidence and by making reference to other facts not in evidence; and (3) that the trial court erred by accepting as unanimous a verdict of guilty as to the charge of robbery in the third degree when in fact such verdict was not unanimous. We find error only as to the third claim of error.

The jury could reasonably have found the following facts. The defendant was arrested in the early morning hours of September 11, 1984, in connection with the robbery of a sixty-two year old woman in the West-ville section of New Haven on the prior evening. The victim was assaulted and robbed as she was about to disembark from her automobile upon arriving home at approximately 11:30 p.m. Her assailant, who had come out of a nearby car, forced his way into the victim’s car, struck her and then stole her pocketbook.

The entire incident lasted approximately two minutes, during which time the scene was illuminated by nearby street lights and by the dome light of the victim’s car. As the car in which her assailant was a passenger pulled away after the incident, the victim, who was not able to see the car’s license plate because the marker plate light was broken, took notice of the car’s description. The victim was not able to get a good look at the driver of the car as he remained in the vehicle throughout the assault and robbery. After the police were called to the scene, the victim gave a description of her assailant and his car.

An automobile in which the defendant was a passenger was stopped by the police soon thereafter at approximately 1:00 a.m. in the same general vicinity in which the assault and robbery had occurred. It matched the victim’s description of the car from which her assailant had made his attack upon her. The victim, who was then at the police station, was taken by the police to the location where the defendant had been stopped. She identified the defendant as her assailant from a distance of approximately ten feet. The victim remained in a police cruiser during the identification process. The defendant was illuminated by street lights and by a spotlight from another cruiser. The victim also identified the car in which the defendant was a passenger as the same car that was at the scene of her assault and robbery.

The defendant, who had entered pleas of not guilty, presented an alibi defense at trial. The defendant testified that he had spent most of the evening of September 10, 1984, in the company of his girlfriend, his sister and his sister’s boyfriend. All three testified at trial as alibi witnesses. The prosecutor questioned the defendant’s sister about whether she spoke to the police after learning that her brother had been arrested for crimes which were committed on the evening she was allegedly with him and others at her house. The question was withdrawn following an objection by the defendant. During his summation to the jury, the prosecutor stated the elements of that question as fact. The defendant did not object to the prosecutor’s closing argument.

Upon return of guilty verdicts on both counts charged, the jury was polled. During the poll of the jury, one juror appeared to equivocate regarding her verdict on the robbery charge until upon subsequent questioning by the trial judge and clerk she reported a verdict of guilty.

The defendant was convicted as charged, and was sentenced on the robbery charge to a term of three years, suspended after sixteen months, with three years probation, and on the assault charge to a concurrent term of one year. This appeal followed.

I

In his initial claim of error, the defendant asserts that the trial court erred in failing to suppress the out-of-court identification by the victim which was the result of a one-on-one show-up. The defendant contends that the identification resulted from an unnecessarily suggestive police procedure and was unreliable, and that admission of this identification, as well as the victim’s subsequent in-court identification of him based upon her out-of-court identification, violated his constitutional rights to due process. We disagree.

The determination of whether an identification procedure offends a defendant’s due process rights depends oh (1) whether the procedure was impermissibly and unnecessarily suggestive, and (2) if so, whether the identification was nevertheless reliable based on the totality of the circumstances. State v. Pollitt, 205 Conn. 132, 162, 521 A.2d 125 (1987), and cases cited therein. “ ‘To prevail in his claim “the defendant must demonstrate that the trial court erred in both of its determinations regarding ‘suggestiveness’ and ‘reliability’ of identifications in the totality of the circumstances.” (Emphasis in original.) State v. Hinton, [196 Conn. 289, 292-93, 493 A.2d 836 (1985)].’ State v. Mayette, 204 Conn. 571, 581, 529 A.2d 673 (1987).” State v. Pollitt, supra.

“While a one-on-one confrontation between a victim of a crime and a person whom the police present as a suspect is presumptively suggestive, it does not automatically follow that such a show-up is impermissibly suggestive. State v. Collette, 199 Conn. 308, 310, 507 A.2d 99 (1986). Prompt on-the-scene confrontations tend under some circumstances to ensure accurate identifications and the benefit of promptness not only aids reliability but permits a quick release of an innocent party if there is no positive identification, allowing the police to resume the investigation with only a minimum of delay. State v. Dejesus, 7 Conn. App. 309, 315-16, 508 A.2d 463 (1986).” State v. Sims, 12 Conn. App. 239, 242, 530 A.2d 1069 (1987).

The show-up in this case occurred less than two hours after the assault and robbery were committed. The defendant and the car in which he was a passenger fit the descriptions given to the police by the victim, and both were found by the police in the area of New Haven where the crimes had occurred. The victim, who had given a complete description of her assailant to the police, was unable before then to identify her attacker from photo arrays within the short interval before his apprehension, finding the process “overwhelming.” Under the circumstances of this case, the one-on-one show-up between the victim and the defendant was reasonably necessary and a permissible investigative technique. State v. Sims, supra, 242-43; see also State v. Mitchell, 204 Conn. 187, 198-99, 527 A.2d 1168 (1987); State v. Collette, supra, 311. This conclusion renders further analysis unnecessary. State v. Pollitt, supra. The trial court did not err in refusing to suppress the evidence of the defendant’s identification at confrontation with the victim and in court. See State v. Pollitt, supra, 164-65; State v. Mayette, 583-84; State v. Sims, supra.

II

The defendant also claims that the prosecutor’s misconduct deprived him of a fair trial when, in his summation to the jury, he attacked the credibility of a defense alibi witness by misstating testimonial facts and by making reference to other facts not in evidence. The defendant, who did not object or take exception to the prosecutor’s closing argument at trial, now seeks review of this claim under the second prong of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973) (review will be made when an adequate record supports a claim of a clear deprivation of a fundamental constitutional right), and the related doctrine of plain error noticed “in the interests of justice.” Practice Book § 4185.

Having failed to preserve his claim of prosecutorial misconduct at trial, the defendant is not entitled to review of his claim under either State v. Evans, supra, or the plain error doctrine. “Only in [the] most exceptional circumstances can and will this court consider a claim, constitutional Or otherwise, that has not been raised and decided in the trial court.” State v. Evans, supra, 69.

“Ordinarily, where a criminal defendhnt does not object and- take exception to allegedly prejudicial remarks of the state’s attorney, either at the time they were made or at the close of argument, he waives his right to press the claimed error on appeal. State v. Lubesky, 195 Conn. 475, 484, 488 A.2d 1239 (1985); State v. Malley, 167 Conn. 379, 387, 355 A.2d 292 (1974). Where counsel fails to object or to request a curative charge ‘we have presumed that defense counsel did not view the remarks as so prejudicial that his client’s right to a fair trial was seriously jeopardized. State v. Lubesky, supra; State v. Falcone, 191 Conn. 12, 23 n.13, 463 A.2d 558 (1983).’ State v. TylerBarcomb, 197 Conn. 666, 673, 500 A.2d 1324 (1985).” State v. Chace, 199 Conn. 102, 108, 505 A.2d 712 (1986).

On the record before us, we cannot say that the prosecutor’s remarks in this case were so abusive or prejudicial as to support a claim that the defendant has “ 'clearly been deprived of a fundamental constitutional right and a fair trial.’ State v. Evans, supra.” (Footnote omitted.) State v. Chace, supra. In cases where our courts have denied Evans review, the claimed misconduct consisted of isolated and brief episodes, and did not reveal a pattern of conduct repeated throughout the trial. The prosecutorial misconduct was also not blatantly egregious. See State v. Chace, supra, 107; State v. Tyler-Barcomb, supra, 673; State v. Lubesky, supra, 483-84. As in those cases, we conclude that the record here does not adequately support the defendant’s claim that he was clearly deprived of a fundamental constitutional right and a fair trial so as to warrant review under Evans. See State v. Chace, supra, 108 n.2; State v. Peterson, 13 Conn. App. 76, 81, 534 A.2d 1237 (1987); cf. State v. Williams, 204 Conn. 523, 535-40, 529 A.2d 653 (1987) (review under Evans of claim of serious misconduct by prosecutor).

The record also fails to support the defendant’s argument that his claim of prosecutorial misconduct may be reviewed under the plain error doctrine of Practice Book § 4185. This rule provides that this court “may in the interests of justice notice plain error not brought to the attention of the trial court.” See also Practice Book § 2000. We are not convinced that there was any manifest injustice under all of the circumstances of this case. In addition, “[sjuch review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). The defendant has not established that his claim meets the standard for review under the plain error doctrine. The defendant has, therefore, waived his right to raise the claim of prosecutorial misconduct on appeal.

Ill

In his final claim on appeal, the defendant maintains that the trial court erred by accepting as unanimous the verdict of guilty to the charge of robbery in the third degree; General Statutes § 53a-136; when in fact such verdict was not unanimous. We agree and, accordingly, find error.

Following the announcement of the guilty verdict to the charges of robbery in the third degree and assault of a victim sixty years or older in the third degree, the six person jury was asked as a group, as part of the established rubric, if the verdicts were unanimous and responded in the affirmative. The defendant requested and was granted an individual poll of the jury. The third juror polled was questioned first by the clerk, and then by the court. After equivocating as to her verdict on the robbery charge, she finally indicated to the court that her verdict was guilty.

The defendant’s claim, although not raised at trial, is reviewable under State v. Evans, supra. The defendant asserts that he was deprived of his right, under the sixth amendment to the United States constitution, to a unanimous verdict from the six member jury. He claims the deprivation of a fundamental right and contests the fairness of his trial in that respect. We have held that a defendant’s claim that a verdict of guilty was not unanimous falls into the category of cases that may be reviewed under the Evans bypass. See State v. Diorio, 12 Conn. App. 74, 80, 529 A.2d 1320, cert, denied, 205 Conn. 813, 532 A.2d 587 (1987); State v. Lo Sacco, 11 Conn. App. 24, 32, 525 A.2d 977, cert, denied, 204 Conn. 812, 528 A.2d 1158 (1987); State v. Edwards, 10 Conn. App. 503, 511, 524 A.2d 648, cert. denied, 204 Conn. 808, 528 A.2d 1155 (1987); State v. Milledge, 8 Conn. App. 119, 122, 511 A.2d 366 (1986); State v. Benite, 6 Conn. App. 667, 671, 507 A.2d 478 (1986).

It is undisputed that the sixth amendment to the United States constitution guarantees a defendant in a criminal case the right to a unanimous verdict if his jury consists of only six members. Burch v. Louisiana, 441 U.S. 130, 134, 99 S. Ct. 1623, 60 L. Ed. 2d 96 (1979); State v. Diorio, supra, 80-81; State v. Lo Sacco, supra, 33. Our criminal procedure requires that all jury verdicts be unanimous; Practice Book § 867; and provides that a jury may be polled to determine unanimity of verdict at the request of either party, or upon the court’s own motion. Practice Book § 869.

The facts of this case clearly demonstrate that the polled juror, after first expressing doubt by her inability to state a verdict to the robbery count, was led by repeated pollings by the clerk at the court’s insistence to five progressive responses culminating in a verdict of guilty to the charge. Such conducement of the juror's verdict deprived the defendant of his right to a unanimous verdict. This polling process of the juror was improper.

In response to what her verdict was on the robbery charge, the juror initially indicated that she did not want to answer “that as a guilty,” but that she wanted to say something further by way of explanation. She was then told by the court that she could only respond by her verdict. When polled by the clerk again for her verdict on the robbery charge, she now responded that ‘T can’t say.” At that moment, the court should have realized that the juror still had some question about the defendant’s guilt of the robbery charge. The court thereupon should have responded to this situation by either sending the jury back to the jury room for further deliberations, or declaring a mistrial on this charge and proceeding to complete the polling of the jury on the assault count and discharging the jury. See Practice Book § 869.

The court did neither of these. Instead of exercising one of its two options, the court continued with the polling of the juror, telling her that both the clerk and the court wanted her to say if her verdict on the first count was guilty or not guilty. The juror’s response at that point suggests that it was forced by the pressure upon her for a verdict. She responded, ‘T said guilty to attempted larceny,” when such an offense had not been submitted to the jury for its deliberation. When the clerk thereafter asked for her verdict on the first count of robbery in the third degree, she pointedly answered, “attempted robbery, guilty of that.” When the clerk then informed her, “robbery in the third degree is the count charged,” she matter-of-factly answered, “I know what you are saying.” As the clerk thereafter started to poll the juror on the second count, the court interjected by saying: “I am not satisfied with the juror’s response. Did you understand the first question?” After the juror indicated “Yes, I did, sir,” the court ordered: “Let’s do it all over again. One moment, please, it’s very important. Put the question to the juror again with regard to the first count.” On this final poll, the juror simply replied: “Guilty.” Thereafter the poll of the juror on the second count was followed with a direct and unambiguous response in sharp contrast to the earlier poll: “That I will say guilty to.” The contrast that the juror expressed in this unqualified answer to the poll on the second count could only have been made to highlight her prior doubt about her verdict to the robbery count.

Under the situation that presented itself to the trial court during the polling of the third juror, the court should have followed the mandate of Practice Book § 869 and directed the jury to retire for further deliberations as to the first count or discharged the jurors from further duties and declared a mistrial as to that count. Green v. Zant, 738 F.2d 1529 (11th Cir. 1984); United States v. Spitz, 696 F.2d 916 (11th Cir. 1983); United States v. Lawrence, 618 F.2d 986 (2d Cir. 1980); United States v. Edwards, 469 F.2d 1362 (5th Cir. 1972); United States v. McCoy, 429 F.2d 739 (D.C. Cir. 1970). See State v. Gullette, 3 Conn. Cir. Ct. 153, 209 A.2d 529 (1964). In this case, the polled juror showed doubt and uncertainty about her verdict from the start of the polling. Although the court made certain that she understood the question, the juror had to be asked for her verdict on the robbery charge five separate times. She indicated doubt on all but the last occasion when finally she answered “guilty.” This juror’s guilty verdict on the robbery count in her individual poll was conduced by the trial court during the polling process. The defendant thereby was denied his right to a unanimous verdict on the charge of robbery in the third degree. Burch v. Louisiana, supra; State v. Diorio, supra; State v. Lo Sacco, supra.

The defendant also asks us to consider his claim, raised for the first time on appeal, that the guilty verdict on the assault charge should also be set aside. Specifically, the defendant argues that if the jury had been properly instructed to deliberate further, it “would have” reconsidered its verdict as to both charges because “it is certainly possible” that the doubting juror could have reconsidered her verdict of guilty on the assault charge as well as the robbery charge and convinced the other jurors with her thoughts.

As we have stated, a lack of unanimity claim falls within the category of cases that will be reviewed under the Evans bypass rule. State v. Evans, supra. There is, however, no merit to the defendant’s exorbitant tandem claim. The record clearly indicates that the juror expressed doubt only as to her verdict on the robbery charge. She emphatically confirmed her guilty verdict on the second or assault count. We will not speculate, as the defendant would have us do, as to what might have happened had the jury been directed to retire for further deliberations on the robbery count. There was no lack of unanimity on the assault charge and no necessity for further deliberations on that count.

There is error in part, the judgment of conviction as to robbery in the third degree is set aside, and the case is remanded for a new trial on that count only.

In this opinion the other judges concurred.

       General Statutes § 53a-133 defines robbery as follows: “A person commits robbery when, in the course of committing a larceny, he 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.”
      The defendant was convicted under “[General Statutes] Sec. 53a-136. ROBBERY IN THE THIRD DEGREE: CLASS D FELONY, (a) A person is guilty of robbery in the third degree when he commits robbery.
      “(b) Robbery in the third degree is a class D felony.”

       “[General Statutes] Sec. 53a-61a. assault of a victim sixty or older IN THE THIRD DEGREE. CLASS A MISDEMEANOR, (a) A person is guilty of assault of a victim sixty or older in the third degree, when he commits assault in the third degree under section 53a-61 and the victim of such assault has attained at least sixty years of age or is blind or physically disabled, as defined in section 1-lf.
      “(b) No person shall be found guilty of assault in the third degree and assault of a victim sixty or older in the third degree upon the same incident of assault but such person may be charged and prosecuted for both offenses upon the same information.
      “(c) Assault of a victim sixty or older in the third degree is a class A misdemeanor.”

       The prosecutor’s comments were as follows: “The defendant’s sister . . . she does not even go to the police. Here is Priscilla Bell, the defendant’s sister, who learns the next day that the defendant is accused of a crime which occurred while Miss Bell says that he was with her and she does not call the police. She does not go down to the police department. She did not give a statement, nothing. She did not tell anyone.”

       The exchange between the juror, the court and the clerk was as follows:
      ‘ ‘The Clerk: [I]n File No. 234464, State of Connecticut v. Bobby Bell, what say you ... is he guilty or not guilty of the crime of robbery in the third degree which he stands charged in the first count?
      “The Juror: Do I have to answer that as a guilty or can I say something?
      “The Court: Ma’am, all that you can respond to is that your verdict.
      “The Clerk: Is your verdict to the first count of robbery in the third degree guilty or not guilty?
      “The Juror: I can’t say.
      “The Court: What the Clerk is inquiring of you and what the Court wants to know, is your verdict on the first count that the defendant is guilty or not guilty?
      “The Juror: I said guilty to attempted larceny.
      “The Clerk: Well, let me—

        “The Court: One moment, please.
      “The Clerk: First count that he is charged with—
      “The Juror: Yes.
      “The Clerk: —is robbery in the third degree.
      “The Juror: Yes.
      “The Clerk; As to that count, which is robbery in the third degree, the first count, is your verdict guilty or not guilty?
      “The Juror: Attempted robbery, guilty of that.
      “The Clerk: Robbery in the third degree is the count charged.
      “The Juror: I know what you are saying,
      “The Clerk: As to the second count—
      “The Court: I am not satisfied with the juror’s response. Did you understand the first question?
      “The Juror: Yes, I did, sir.
      “The Court: Let’s do it all over again. One moment, please, it’s very important.
      Put the question to the juror again with regard to the first count,
      “The Clerk: In file No. 234464, State of Connecticut v, Bobby Bell, what say you . , . is he guilty or not guilty of the crime of robbery in the third degree which he stands charged in the first count?
      “The Juror: Guilty.
      “The Clerk: In File No, 234464, State of Connecticut v. Bobby Bell, what say you ... is he guilty or not guilty of the crime of assault of a victim sixty years of age or older in the third degree which he stands charged in the second count?
      “The Juror: That I will say guilty to.
      “The Court: Thank you; you may be seated.’’

       Practice Book § 867 provides in relevant part: “The verdict shall be unanimous and shall be announced by the jury in open court. . . .”

       “[Practice Book] Sec. 869. —poll of jury
      “After a verdict has been returned and before the jury have been discharged, the jury may be polled at the request of any party or upon the judicial authority’s own motion. The poll shall be conducted by the clerk of the court by asking each juror individually whether the verdict announced is his verdict. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or they may be discharged.”

       The defendant was initially charged with three counts: robbery in the second degree, in violation of General Statutes § 53a-135; assault of a victim sixty years of age or older in the second degree, in violation of General Statutes § 53a-60b; and larceny in the second degree, in violation of General Statutes § 53a-123. As a substitute information the larceny offense was dropped and he was brought to trial on robbery in the third degree, in violation of General Statutes § 53a-136; and assault of a victim sixty years of age or older in the third degree, in violation of General Statutes § 53a-61a.


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    Maurice D. Lynch v. Anita J. Lynch
    (5238)
    Spallone, Bieluch and Stoughton, Js.

      Argued December 15, 1987 —
    decision released February 16, 1988

      Melissa A. Grauel, with whom, on the brief, was Marcella Gereg, for the appellant (defendant).

      Maurice D. Lynch, pro se, the appellee, filed a brief.
   Spallone, J.

The defendant appeals the postjudgment orders entered by the trial court in an action for dissolution of marriage. The marriage of the parties was dissolved by the court on May 4, 1983. The judgment mandated that the plaintiff former husband pay to the defendant former wife the sum of $87.50, per week, for child support.

On April 30,1985, the plaintiff filed a pro se appearance and a motion to modify child support which contained a certification that a copy of the motion was mailed to the defendant on April 30,1985. The motion for modification was heard on the short calendar for May 13, 1985. The defendant did not file an appearance, nor did she appear in court to oppose the motion. The court, Moraghan, J., after questioning the plaintiff and learning of the plaintiffs unemployment, stated: “At this point, it appears as though the motion for modification is well taken.” The court then entered an order changing the child support payments from $87.50 per week to $30 per week for a period of four weeks. The court ordered that a review of the order be scheduled for June 10,1985. On that date, the court entered an order as follows: “The plaintiff having come before the court for review of orders entered pursuant to the plaintiffs Motion for Modification, it is hereby ORDERED: That the orders entered May 13, 1985, shall continue in effect. The matter is continued to July 15, 1985, at 2 p.m. for further review.” The defendant did not attend that hearing.

On July 15, 1985, pursuant to the continuance contained in the order of June 10,1985, the plaintiff again appeared before the court and again the defendant failed to attend the proceedings. The July 15, 1985 court order stated in part: “The plaintiff shall pay the sum of $30 per week as child support. The order is permanent as of today’s date and until such time as the Plaintiff obtains employment. As soon as the Plaintiff is employed he shall notify the Defendant and the amount of child support shall return to $87.50 per week.” On this order, there is a notation initialed by the clerk of the court that a copy was sent to the defendant on July 25, 1985.

The defendant filed a pro se appearance on August 1, 1985. She took no further action, however, and continued to accept the $30 per week payments of child support for the next year. On April 15, 1986, counsel filed an appearance on behalf of the defendant. On May 1, 1986, counsel for the defendant filed a motion to open or modify the order of child support. In her motion, the defendant claimed that she had never been notified of the date of any of the court proceedings held pursuant to the plaintiffs original motion to modify, nor of the subsequent dates when the court reviewed its orders. The defendant acknowledged that she received notice of the court’s July 15,1985 order which required the plaintiff to notify her when he became employed and at which point the support order was to return to $87.50 per week. She also alleged in her motion that the plaintiff was indeed employed but had not increased the payments to $87.50 per week as required under such order.

The trial court, W. Sullivan, J., conducted a hearing and took evidence as to whether the defendant had actual notice of the earlier hearings held before Judge Moraghan, and, finding that the defendant had indeed received notice, refused to vacate the previous order. The court did find that the plaintiff was employed and pursuant to the order of July 15,1985, found that the plaintiff owed an arrearage of $1495 in his support payments. The defendant has appealed that order.

The defendant claims that the trial court erred (1) in finding that she had notice of the May 13, 1985 or July 15, 1985 hearings on the plaintiff’s motion to modify, (2) in refusing to open and vacate the order of May 13,1985, and (3) in determining the amount of the arrearage.

Regarding the first claimed error, the question of whether the defendant had notice of the hearings is one of fact to be determined by the trial court. Our review of the record and transcripts amply supports the trial court’s finding of notice. The defendant is asking us to retry that issue. On appeal, the function of this court is limited solely to the determination of whether the factual findings of the trial court are clearly erroneous in view of the evidence and pleadings in the whole record. Practice Book § 4061, Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981). It is the province of the trial court to pass upon the credibility of the witnesses and the weight to be accorded the evidence. Edgewood Construction Co. v. West Haven Redevelopment Agency, 170 Conn. 271, 272, 365 A.2d 819 (1976). This court cannot find facts or draw conclusions from primary facts found, but can only review such findings to determine whether they could legally, logically and reasonably be found, thereby establishing that the trial court could reasonably conclude as it did. Appliances, Inc. v. Yost, 186 Conn. 673, 676-77, 443 A.2d 486 (1982). The defendant’s assertion that there was no factual basis to support the trial court’s finding of notice is without merit. Because the defendant’s second claim of error is similarly based on the alleged lack of notice, it must also fail. The court specifically found notice was given.

The defendant’s final claim, that the court erred in computing the amount of arrearage owed by the plaintiff, is also meritless. The defendant claims that the July 15,1985 order of the court was self-executing in that, immediately upon being reemployed in October, the plaintiff’s obligation for child support returned to $87.50 per week. The defendant further argues that the fact that the plaintiff subsequently became unemployed again in January of 1986 should not have reduced the plaintiff’s obligation for support payments back to $30 per week without a further order of the court. We disagree, primarily because the defendant accepted the reduction to $30 per week in child support for over a year and, secondarily, because the obvious intent and logic of the prior orders was to take into consideration the plaintiffs inability to pay during his periods of unemployment. In deciding support matters, the trial court exercises its equitable powers and we note that “[t]he power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage.” Pasquariello v. Pasquariello, 168 Conn. 579, 585, 362 A.2d 835 (1975); see also Anderson v. Anderson, 191 Conn. 46, 57, 463 A.2d 578 (1983); Moore v. Moore, 187 Conn. 589, 590, 447 A.2d 733 (1982). Further, our review is limited to determining whether the trial court abused its discretion in making its financial award. Barnes v. Barnes, 190 Conn. 491, 494-95, 460 A.2d 1302 (1983). We find no abuse of discretion in the court’s computation of arrearage. To the contrary, we hold that the court’s finding of arrearage was logically and legally sound under the facts and circumstances in this case.

There is no error.

In this opinion the other judges concurred.

       The court computed the arrearage by taking into consideration the period of time between June of 1985 and May of 1986 that the plaintiff was employed — approximately twenty-six weeks — and assessed a $57.50 per week charge to account for the discrepancy between the $30 the plaintiff had paid, and the $87.50 that he should have paid. Because the plaintiff had again become temporarily unemployed for approximately three weeks in early 1986, the court did not assess the $57.50 charge for those weeks. It is this portion of the calculation that the defendant claims is erroneous.


author: O’Connell, J.

text:
    State of Connecticut v. Wilfredo Vega
    (6115)
    Borden, Bieluch and O’Connell, Js.

      Argued November 13, 1987 —
    decision released February 16, 1988

      Carl D. Eisenman, public defender, for the appellant (defendant).

      Dennis O’Connor, assistant state’s attorney, with whom, on the brief, was John M. Bailey, state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from a judgment of conviction, after a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103 (a), threatening in violation of General Statutes § 53a-62 (a) (1) and larceny in the sixth degree in violation of General Statutes § 53a-125b. He claims that the trial court erred (1) in denying his motion to suppress an eyewitness identification, (2) in giving the so-called Ledbetter instruction to the jury, and (3) in failing to give a jury instruction concerning the drawing of inferences. The defendant also claims that the evidence presented was insufficient to prove that he was guilty of the crimes charged beyond a reasonable doubt. We find no error.

The jury could reasonably have found the following facts. On January 24, 1986, at approximately 12:37 a.m., a pharmacy at 158 Hillside Avenue in Hartford was burglarized. Keith Harlan, an off-duty police officer living across the street from the pharmacy, heard a loud noise and went to investigate. Once outside, Harlan also heard the pharmacy’s alarm bell. Shortly thereafter, he observed a man carrying an object, emerging from a broken window in the pharmacy. Harlan pursued the man as he walked away from the pharmacy, carrying what the police officer recognized as a “boom box” portable radio. When the man realized Harlan was following him, he turned and, brandishing a knife, warned “Back off or I’ll cut you.” The man then fled with Harlan in pursuit, until Harlan lost sight of him in an alley. Harlan described the perpetrator to other police officers who arrived to investigate the burglary, and in response was given the defendant’s name as a possible suspect. Approximately one week later, Harlan obtained a photograph of the defendant from police files and identified him as the person he had chased from the burglary scene. Harlan subsequently selected the defendant’s photograph from a six-photo array and also positively identified him at trial. A “boom box” radio was the only item reported missing by the proprietor of the pharmacy after the burglary.

I

We find no merit in the defendant’s first claim of error, namely that the trial court wrongly denied the defendant’s motion to suppress the identifications of the defendant as the perpetrator of the burglary.

A defendant who moves to suppress identification evidence obtained by allegedly unconstitutional procedures bears the initial burden of proving (1) that the procedures were unnecessarily suggestive, and (2) that the resulting identification was unreliable in the totality of the circumstances. See State v. Williams, 203 Conn. 159, 173-74, 523 A.2d 1284 (1987), and cases cited therein. “ ‘Only if the procedures used to identify the accused are unnecessarily suggestive are we required to analyze the factors that determine the reliability of an identification for due process purposes.’ ” Id., 174, quoting State v. Miller, 202 Conn. 463, 470, 522 A.2d 249 (1987). Although the trial court found that the viewing by Officer Harlan of the single photograph of the defendant was unnecessarily suggestive, it also found that the resulting identification was reliable “in the totality of the circumstances.” We agree.

The present case clearly tracks Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). The Manson court, given a strikingly similar factual scenario, upheld the identification of a narcotics dealer by a Connecticut state police officer when that officer first viewed a single photograph of the defendant which he obtained upon the suggestion of a fellow officer. The court highlighted two aspects of reliability which are equally significant here. First, the United States Supreme Court concluded that the eyewitness skills of a police officer increased the reliability of his identification; “ ‘[the police officer] certainly was paying attention to identify the [perpetrator]. ... He was a trained police officer who realized that later he would have to find and arrest the person with whom he was dealing.’ ” (Citation omitted.) Id., 108. Second, the court also ruled that the fact that the officer obtained and viewed the photograph of the defendant while alone protected against the potential coercion sometimes found in other identification procedures. “Although identifications arising from single-photograph displays may be viewed in general with suspicion, see Simmons v. United States, [390 U.S. 377, 383, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968)], we find in the instant case little pressure on the witness to acquiesce in the suggestion that such a display entails. . . . There thus was little urgency and [the officer] could view the photograph at his leisure. And since [the officer] examined the photograph alone, there was no coercive pressure to make an identification arising from the presence of another. The identification was made in circumstances allowing care and reflection.” Manson v. Brathwaite, supra, 116.

“The reliability inquiry delineated in Manson is fact-bound and made on an ad hoc basis. Generally, where the admissibility of evidence depends upon a preliminary question of fact to be determined by the court, ‘its decision is not to be reversed unless there is clear and manifest error.’ Engelke v. Wheatley, 148 Conn. 398, 410-11, 171 A.2d 402 (1961); see Practice Book § 4061; State v. Brigandi, 186 Conn. 521, 530, 442 A.2d 927 (1982).” State v. Mitchell, 204 Conn. 187, 203, 527 A.2d 1168, cert. denied, U.S., 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987). Given the facts of the present case, we do not find that the trial court committed “clear and manifest error” in denying the defendant’s motion to suppress.

II

The defendant next claims error in the jury instruction that, with respect to identification, “a good hard look may pass muster even if it occurs during a fleeting glance.” The defendant argues that this language was inappropriate under the facts of this case. We disagree.

The language in question is derived from State v. Ledbetter, 185 Conn. 607, 615, 441 A.2d 595 (1981), where, in more restrictive language than here, the Ledbetter court stated that “a good hard look will [rather than may] pass muster even if it occurs during a fleeting glance.” (Emphasis added.) See also State v. Cubano, 9 Conn. App. 548, 553-54, 520 A.2d 250 (1987). The Ledbetter witness was a robbery victim who viewed his assailant for approximately fifteen to twenty seconds in a face to face confrontation and was able to observe his approximate age, height, weight, hair style, skin tone and the color of his pants and jacket.

The facts of the present case present a scenario even more favorable than that found in Ledbetter. While the time between the incident and identification is substantially the same, the eyewitness in the present case observed not only those characteristics supplied by the victim in Ledbetter, but in addition noted the burglar’s build, race, presence of facial hair, knife, the “boom box” radio he carried, and the furtive movement of the defendant’s eyes as he glanced about.

The defendant argues that the factors surrounding the identification in the present case are insufficient to warrant a Ledbetter instruction, and asks us to establish a per se standard for determining when such an instruction should be given, based primarily upon the length of the time an identifying witness views a defendant. This we will not do. Each case must be judged on its own facts. Setting standardized guidelines for the use of the instruction defeats its express purpose of impressing upon the jury that in some circumstances, a brief although detailed and focused viewing can be a sufficient basis for identification despite its brevity. For example, in State v. Cubano, supra, the court quoted the Ledbetter language in upholding an identification by an eyewitness who viewed the defendant’s profile for only five to ten seconds. We conclude that it was not error to give the instruction under the facts of this case.

Ill

The defendant’s third claim of error is that the trial court erred in failing to charge the jury that any conclusion to be drawn from the evidence, which is consistent with the innocence of the accused, must prevail. See State v. Dumlao, 3 Conn. App. 607, 616, 491 A.2d 404 (1985). The defendant contends that the trial court’s failure to give this charge diluted the state’s burden of proof by rendering the instruction on reasonable doubt “inadequate and unclear.” We disagree.

The defendant failed to preserve this claim for appeal in a proper manner, but we address it because by its terms it implicates a fundamental constitutional right, and because a limited review of the record discloses that the claim is duly of constitutional proportions. State v. Huff, 10 Conn. App. 330, 334, 523 A.2d 906 (1987); State v. Thurman, 10 Conn. App. 302, 306, 523 A.2d 891 (1987). Upon a full review of the defendant’s claim, however, we conclude that there was not in fact a deprivation of the defendant’s constitutional right to a fair trial. State v. Huff, supra; State v. Thurman, supra, 307.

The United States Supreme Court has held that when examining a claimed error based upon a failure to give a requested instruction on the presumption of innocence, the proper standard for review is an examination of the “totality of the circumstances” surrounding the trial: “[T]he failure to give a requested instruction on the presumption of innocence does not in and of itself violate the Constitution. Under Taylor [v. Kentucky, 436 U.S. 478, 98 S. Ct. 1930, 56 L. Ed. 2d 468 (1978)], such a failure must be evaluated in light of the totality of the circumstances — including all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other relevant factors — to determine whether the defendant received a constitutionally fair trial.” Kentucky v. Whorton, 441 U.S. 786, 789, 99 S. Ct. 2088, 60 L. Ed. 2d 640, reh. denied, 444 U.S. 887, 100 S. Ct. 186, 62 L. Ed. 2d 121 (1978).

Applying this standard of review to the present case, we conclude that based upon the totality of the circumstances the defendant was not deprived of a constitutionally fair trial.

IV

The defendant’s final claim of error is that the evidence was insufficient to prove he was guilty of the crimes charged beyond a reasonable doubt. “It is rudimentary that we do not retry the facts or evaluate the credibility of witnesses. Bowman v. Williams, 5 Conn. App. 235, 238, 497 A.2d 1015 (1985).” State v. Nieves, 13 Conn. App. 60, 66, 534 A.2d 1231 (1987). The defendant’s guilty verdict must stand if “ ‘[t]he jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.’ ” State v. Dumlao, supra, 613, quoting State v. Giorgio, 2 Conn. App. 204, 211, 477 A.2d 134 (1985). The evidence must also be construed in a manner most favorable to sustaining the jury’s verdict. State v. Nieves, supra, 66. Applying this analysis, we find that there was sufficient evidence, if believed by the jury, to sustain the defendant’s conviction of the crimes charged.

There is no error.

In this opinion the other judges concurred.

       The defendant subsequently entered a plea of nolo contendere to a persistent felony offender charge, General Statutes § 53a-40 (b).

       While the defendant’s motion to suppress attacks only the “identification of the defendant through comparison of photographs,” a review of the transcript reveals an attack on the in-court identification as well.

       These factors include the witness’s opportunity to view the defendant, his degree of attention, the accuracy of his description, his level of certainty and the amount of time passing between the crime and the identification. Stats v. Mitchell, 204 Conn. 187, 202, 527 A.2d 1168, cert, denied, U.S.
      , 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987); State v. Cubano, 9 Conn. App. 548, 553, 520 A.2d 250 (1987).

       Because we conclude that the out-of-court identification was properly admitted, we need not address the attack on the in-court identification. See State v. Cubano, 203 Conn. 81, 96 n.11, 523 A.2d 495 (1987).


author: Per Curiam.

text:
    Thomas Kelly et al. v. Planning and Zoning Commission of the Town of Hamden et al.
    (5652)
    Spallone, Daly and Norcott, Js.
    Argued January 21 —
    decision released February 16, 1988

      Hugh I. Manke, with whom, on the brief, was Priscilla C. Mulvaney, for the appellant (named defendant).

      Dennis N. Garvey, with whom was Barbara L. Cox, for the appellant (defendant C.M.C. Development, Inc.).

      John A. Parese, with whom, on the brief, was Arnold A. Aranci, for the appellees (plaintiffs).
   Per Curiam.

The defendants appeal from the judgment of the trial court sustaining the plaintiffs’ appeal from a decision of the defendant Hamden planning and zoning commission (commission), granting the applications of the defendant, C.M.C. Development, Inc. (C.M.C.). We find error.

On September 20, 1984, the Hamden zoning board of appeals (board) granted a variance which allowed construction of multi-family dwellings by C.M.C. Notice of the hearing and the board’s decision granting the variance was published as required. No appeal was taken from the granting of this variance. On December 10,1985, the commission approved C.M.C.’s applications for a special permit, site plan approval and for an aquifer protection zone permit, on the basis of the variance granted by the board in September of 1984.

The plaintiffs appealed this action of the commission and therein attacked the validity of the variance granted by the board on the ground that they had not been given supplementary notice by mail as required under the Hamden zoning regulations. The trial court found that notice was not given as required, and further found that the validating provisions of Special Acts 1985, No. 47 did not apply. The court entered judgment accordingly, sustaining the plaintiffs’ appeal.

The sole issue before us is whether the trial court erred in not giving efficacy to Special Acts 1985, No. 47. We find that it did.

This appeal is controlled by the holding of Hartford v. Freedom of Information Commission, 201 Conn. 421, 426, 518 A.2d 49 (1986). There is nothing in the present case to indicate that the legislative body did not have the right to prospectively alter a procedural requirement, or that the enactment’s retroactive application would “unjustly abrogate vested rights.” Id., citing Enfield Federal Savings & Loan Assn. v. Bissell, 184 Conn. 569, 572, 440 A.2d 220 (1981); Connecticut State Employees Assn., Inc. v. Connecticut Personnel Policy Board, 165 Conn. 448, 454, 334 A.2d 909 (1973); Sanger v. Bridgeport, 124 Conn. 183, 186-87, 198 A. 746 (1938); 2 J. Sutherland, Statutory Construction (4th Ed. Sands 1986) § 41.05.

There is error, the judgment sustaining' the appeal is set aside and the case is remanded to the trial court with direction to render judgment dismissing the appeal.

       Special Acts 1985, No. 47, § 6 (c) provides in pertinent part: “Any and all actions taken by any . . . zoning board of appeals . . . otherwise valid except that said . . . zoning board of appeals . . . failed to comply with the requirement or requirements of any general or special law, ordinance or regulation governing the . . . giving [or] mailing ... of any notice, either of the hearing or of the action taken, is validated, provided no such action shall be validated if an appeal from such action is pending in any court or the time for taking such appeal has not expired as of the effective date of this act.” (Emphasis added.)


text:
    Central Bank for Savings v. Planning and Zoning Commission of the Town of Cromwell
    (5522)
    Borden, Bieluch and O’Connell, Js.

      Argued November 12, 1987 —
    decision released February 16, 1988

      Richard W. Tome, for the appellant (defendant).

      Thomas P. Byrne, for the appellee (plaintiff).
   Bieluch, J.

The defendant planning and zoning commission of the town of Cromwell (commission) appeals from the judgment of the trial court sustaining the appeal of the plaintiff Central Bank for Savings (bank) from a decision of the commission changing the zone classification of a fifty-four acre parcel of undeveloped land owned by the bank. The land was changed from a Planned Residential Development District 2 (PRD-2) zone, permitting multi-family development at a density of six units per acre, to a Residence District A-25 zone, authorizing only single-family dwellings on a minimum lot area of 25,000 square feet.

The commission claims that the trial court erred (1) in holding that under General Statutes § 8-3 a change in conditions is required before the commission can make a zone change, (2) in determining that the personal knowledge and observations of the members of the commission were not proper bases to support the commission’s findings and decision, (3) in stating that members of the commission were not competent to determine whether a high density planned residential development would have an adverse effect on local traffic conditions, and whether there was a local demand for the housing allowed by a planned residential development, (4) in determining that the rural character of the area was not a pertinent factor for the commission to consider under General Statutes § 8-2 when it made the zone change, (5) in finding that the commission was motivated to benefit a group of residents, and not the community at large, when it rezoned the plaintiffs property, (6) in finding that there was insufficient evidence on the record to support the commission’s findings and decision, and (7) in holding that the commission had acted arbitrarily, in abuse of its discretion, and illegally when it changed the zoning classification of the plaintiff’s land from high density residential to low density residential in conformity with the town plan of development. We find error.

The following undisputed facts are relevant to this appeal. On May 12, 1980, the plaintiff bank acquired title to the parcel of land which is the subject of this appeal. The parcel is bisected by and abuts Interstate Route 91 on the east and west sides of the highway. The easterly portion contains thirty-four acres; the westerly portion contains twenty acres. At the time the bank obtained the land, its zoning classification was Planned Residential Development District 3 (PRD-3), which would have permitted the bank to develop its property then for multi-family residences at a density of ten units per acre. By an amendment to the town’s zoning regulations on November 17, 1981, the PRD-3 zone was eliminated, and all parcels then under that classification were upgraded to a PRD-2 zone, which allowed development at a density of six units per acre.

On September 11, 1984, the commission, pursuant to written requests by area residents, conducted a public hearing for the purpose of determining whether to reclassify the zone of the bank’s property to Residence District A-25, a designation which would permit single-family dwellings only on lots containing at least 25,000 square feet in area. The commission heard testimony from various town officials, including the town’s planner, and area residents, as well as from the plaintiff’s panel of experts. The commission also received in written form a statement of support from the bank, and several technical reports from the bank’s experts. Subsequent to the public hearing, an alternate member of the commission sitting on this zoning panel filed a written report of his “observations and positions with respect to this proposed zoning action” for the consideration of the commission.

The commission thereafter unanimously approved the zone change at its meeting of October 16, 1984. The minutes of that meeting reveal that the commission reached its decision to upgrade the zoning classification after considering all the evidence presented at the public hearing, as well as the health, safety and general welfare of the area and the town’s plan of development. The minutes also summarize the personal views of approval expressed by each member of the commission concerning the proposed zone change, and that the commission unanimously voted to approve the change of zone “for all the reasons elaborated on by the members of this Commission.”

The bank appealed from the commission’s decision to the trial court, which sustained its appeal. That court, after determining that the bank had standing to appeal, held that the commission had acted arbitrarily, in abuse of its discretion, and illegally when it rezoned the bank’s property. Upon certification, the commission took this appeal.

I

The defendant claims that the trial court erred in holding that under General Statutes § 8-3 a change in conditions is required before a zoning change can be made. We agree.

The trial court held that “a change of zone classification is unwarranted ‘unless new conditions arise which substantially alter the character of an area.’ Morningside Assn. v. Planning & Zoning Board, 162 Conn. 154, 157, [292 A.2d 893 (1972)].” The court concluded, therefore, that the action of the commission was arbitrary because its record was “barren of any change in conditions that affected the surrounding area since the original action of the commission . . . and the decision did not involve the resolution of questions which it had previously decided.”

The trial court misconstrued the case cited for its ruling. Its quotation from Morningside Assn. v. Planning & Zoning Board, supra, is incomplete and taken out of context. The complete holding in Morningside is as follows: “Ordinarily, unless new conditions arise which substantially alter the character of an area, a change in zone classification is unwarranted. . . . A local zoning authority, however, acts in a legislative capacity when it enacts or amends its regulations. . . . In acting, such a legislative body must be relatively free to amend or modify its regulations whenever time and experience have demonstrated the need for a revision. . . . The board, acting in a legislative capacity, was, therefore, not bound by the general rule which would prohibit it from reversing an earlier decision without evidence of a change in conditions.” (Citations omitted; emphasis added.) Id., 157-58.

The trial court’s ruling is contrary to the repeated decisions of our Supreme Court and this court holding that “[i]n adopting or amending zoning regulations, the commission acts in a legislative capacity. Parks v. Planning & Zoning Commission, 178 Conn. 657, 660, 425 A.2d 100 (1979); A. P. & W. Holding Corporation v. Planning & Zoning Board, 167 Conn. 182, 184, 355 A.2d 91 (1974). ‘Acting in such legislative capacity, the local board is free to amend its regulations “whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change. . . . The discretion of a legislative body, because of its constituted role as formulator of public policy, is much broader than that of an administrative board, which serves a quasi-judicial function.” Malafronte v. Planning & Zoning Board, [155 Conn. 205, 209, 230 A.2d 606 (1967)].’ Parks v. Planning & Zoning Commission, supra.” Arnold Bernhard & Co. v. Planning & Zoning Commission, 194 Conn. 152, 164, 479 A.2d 801 (1984); Wisniewski v. Zoning Board, 6 Conn. App. 666, 667, 506 A.2d 1092 (1986). “The present appeal, involving a decision upon an application for a change of zone, required the trial court to review a decision made by the commission in its legislative capacity. . . . Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency. The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached.” Burnham, v. Planning & Zoning Commission, 189 Conn. 261, 265, 455 A.2d 339 (1983). The trial court erred, therefore, in holding that the action of the commission was arbitrary as it was not predicated upon a finding of a change in the conditions of the area surrounding the property to be rezoned.

II

The next four issues raised by the commission concern the trial court’s conclusions as to the validity of several of the factors considered by the commission in reaching its decision and will, therefore, be discussed as four parts of one issue. The first of these issues is the contention of the commission that the trial court erroneously determined that the personal knowledge and observations of the commission members were not proper bases upon which to support the decision of the commission. The trial court’s conclusion was in error.

“[T]he members of the [agency] are entitled to take into consideration whatever knowledge they acquire by personal observation. Dubiel v. Zoning Board of Appeals, 147 Conn. 517, 522, 162 A.2d 711 (1960).” Burnham v. Planning & Zoning Commission, supra, 267; DeMars v. Zoning Commission, 142 Conn. 580, 584, 115 A.2d 653 (1955); see also Jennings v. Connecticut Light & Power Co., 140 Conn. 650, 675, 103 A.2d 535 (1954) (members of administrative body entitled to consider facts which they have learned through personal observations, if properly made). The commission was, therefore, “entitled to regard the facts so learned by them to the same extent as though they were offered in evidence before them . . . .” Mrowkav. Board of Zoning Appeals, 134 Conn. 149, 154, 55 A.2d 909 (1947).

The trial court also erred in concluding that the members of the commission were not competent to determine whether a high density planned residential development would have an adverse effect on local traffic conditions, and whether there was a local demand for the housing permitted by such a development. General Statutes § 8-2 sets forth the various factors and designs a zoning authority must consider when it makes a zone change. Among these are: “to lessen congestion in the streets ... to prevent the overcrowding of land . . . [and] to avoid undue concentration of population.” The trial court held that the determination of traffic congestion requires support from an expert, and that personal observations of commission members cannot be competent evidence to determine the future effect of traffic generation or the local real estate market.

The evidentiary value of the personal knowledge and observations of commission members has already been established. Reliance upon their knowledge concerning matters readily within the competence of lay members of a commission, such as local traffic congestion, street safety and real estate needs, is permitted. See Feinson v. Conservation Commission, 180 Conn. 421, 427, 429 A.2d 910 (1980). The Feinson case presented our Supreme Court with the question of when an administrative body must rely on outside expert opinion rather than the personal knowledge of its individual members. The court there found that local matters, such as traffic congestion and street safety, were within the competence of commission members, but “a lay commission acts without substantial evidence, and arbitrarily, when it relies on its own knowledge and experience concerning technically complex issues such as pollution control, in disregard of contrary expert testimony, without affording a timely opportunity for rebuttal of its point of view.” Id., 429. The commission members here were correct in relying on their personal knowledge to determine the impact of a high density development on local traffic and total population, as well as the town’s needs for multi-family housing, when deciding whether to zone upward the property in question. The trial court erred in concluding otherwise.

The trial court also erred in concluding that the rural character of the area under consideration was not a pertinent factor for the commission to consider under General Statutes § 8-2. A zoning commission is “justified in considering . . . rural factors in making its decision on a requested zone change.” Burnham v. Planning & Zoning Commission, supra, 265. That our rural areas merit preservation is also evident as a state policy in the enactment of Public Acts 1978, No. 78-232, now General Statutes §§ 22-26aa through 22-26Ü, adopting a state program for the preservation of agricultural lands in rural areas from encroachment by residential and commercial developments.

Additionally, the trial court erred in finding that the commission was motivated to benefit a group of residents, and not the community at large, when it rezoned the property owned by the bank. The record of the October 16, 1984 meeting, at which the zone change was considered and approved, reveals that the individual members had reviewed the materials presented concerning the proposed zone change before giving their numerous valid reasons to support their action. Only one member of the commission, after stating other reasons for her support of the zone change, listed also "the desires expressed by the people.” In fact, the reasons expressed were introduced by her conclusion "that a change to [Residence District] A-25 would be in the best interest of the people.” The trial court in its memorandum of decision concluded as follows: "It is clear from [a] reading of the reasons of the commission that the commission members were considering only the wishes of the neighbors who appeared at the hearing .... [I]t is clear that the commission was motivated to benefit a group of residents, and not the community at large. The court finds this is not a proper motive.”

We find that the trial court went behind the reasons given by the commission for the zoning change and inferred that it considered only the desires of the area residents who appeared at the September 11,1984 public hearing. This was clearly erroneous. “ ‘[W]here a zoning commission has formally stated the reasons for its decision the court should not go behind that official collective statement of the commission. It should not attempt to search out and speculate upon other reasons which might have influenced some or all of the members of the commission to reach the commission’s final collective decision.’ DeMaria v. Planning & Zoning Commission, 159 Conn. 534, 541, 271 A.2d 105 (1970).” Allied Plywood, Inc. v. Planning & Zoning Commission, 2 Conn. App. 506, 512, 480 A.2d 584, cert, denied, 194 Conn. 808, 483 A.2d 612 (1984).

III

The defendant commission also maintains that the trial court erred in finding that there was insufficient evidence in the record to support the commission’s findings and decision. We concur.

The decision of the commission must be sustained “if an examination of the record discloses evidence that supports any one of the reasons given. See Daviau v. Planning Commission, 174 Conn. 354, 358, 387 A.2d 562 (1978); Nicoli v. Planning & Zoning Commission, 171 Conn. 89, 94, 368 A.2d 24 (1976); First Hartford Realty Corporation v. Plan & Zoning Commission, 165 Conn. 533, 543, 338 A.2d 490 (1973); see Parks v. Planning & Zoning Commission, 178 Conn. 657, 662-63, 425 A.2d 100 (1979).” Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 539-40, 525 A.2d 940 (1987).

There was ample evidence in the record to support the commission’s decision. The trial court arrived at its conclusion of evidentiary insufficiency by improperly excluding from its consideration proper evidence, such as the personal knowledge of commission members, and giving no weight to other evidence, such as the rural character of the area encompassed by the zone change. This situation is similar to the one which confronted our Supreme Court in Burnham v. Planning & Zoning Commission, supra. The court there concluded that the trial court’s improper exclusion of evidence explained its erroneous finding that the evidence was inadequate to support the commission’s decision. The same conclusion is applicable here. The trial court erred in finding that there was insufficient evidence in the record to support the commission’s decision.

IV

Finally, we agree with the commission’s assertion that the trial court erred in holding that the commission had acted arbitrarily, in abuse of its discretion and illegally when it changed the zoning classification of the bank’s land. The commission’s decision to restore the original residential zone of Residence District A-25 which applied before May 30,1972, was made “in accordance with a comprehensive plan [of development].” General Statutes § 8-2; see Burnham v. Planning & Zoning Commission, supra, 267. The commission’s decision was not arbitrary, in abuse of its discretion or illegal.

“We have said on many occasions that courts cannot substitute their judgment for the wide and liberal discretion vested in local zoning authorities when they have acted within their prescribed legislative powers. Courts must not disturb the decision of a zoning commission unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally. First Hartford Realty Corporation v. Plan & Zoning Commission, 165 Conn. 533, 540-41, 338 A.2d 490 (1973).” Burnham v. Planning & Zoning Commission, supra, 266.

It is evident from the record that the commission fully reviewed the nature and prior zoning classifications of the area involved in reaching its decision, and carefully considered the consequences of a decision that would continue to keep the area as a high density residential zone such as PRD-2. Even to the untrained eye a view of the zoning map shows the unchanged PRD-2 zone as a small blot in a large area designated as Residence District A-25 and extending from both sides of Interstate Route 91. The land use map incorporated in the plan of development designates the portion of the property on the west side of the highway for residential low density use for a single family dwelling on one acre of land. The land on the east side of the highway is shown as a preservation area and agricultural land. This is consistent with the development plan’s goals and policies of providing (1) for a gradual increase of new housing units, (2) for a slow rate of residential growth, (3) for a balance between use of land and the conservation of natural resources and open spaces, and (4) for the protection of prime agricultural lands.

The commission was uniquely qualified to consider present factors and proposed zoning goals and policies. “The courts allow zoning authorities this discretion in determining the public need and the means of meeting it, because the local authority lives close to the circumstances and conditions which create the problem and shape the solution. Stiles v. Town Council, 159 Conn. 212, 219, 268 A.2d 395 (1970).” Burnham v. Planning & Zoning Commission, supra. The decision of the commission was neither arbitrary, in abuse of its discretion nor illegal. The trial court erred when it held otherwise.

There is error, the judgment of the trial court is set aside and the case is remanded with direction to dismiss the plaintiff’s appeal.

In this opinion the other judges concurred.

       Before May 30, 1972, this land was zoned as Residence District A-25. This designation allowed single-family dwellings on a minimum lot area of 25,000 square feet. Pursuant to a request by the bank’s predecessor in title, the Commission downgraded the land to a PRD-3 zone on May 30, 1972.

       Some of the considerations for the commission’s acceptance of the proposed zone change were (1) the area’s high population, (2) the significant number of existing condominiums in Cromwell, (3) the area’s heavy traffic flow, (4) the area’s narrow roads, (5) preservation of the area’s “rural charm,” (6) the safety of the neighborhood, (7) the best interests of area residents, and (8) conformity with the town’s plan of development, which encouraged a slow rate of growth.

       General Statutes § 8-2 provides in relevant part: “Such regulations shall be made in accordance with a comprehensive plan and shall be designed to lessen congestion in the streets; to secure safety from fire, panic, flood and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population and to facilitate the adequate provision for transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration as to the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality. Such regulations shall also encourage the development of housing opportunities for all citizens of the municipality consistent with soil types, terrain and infrastructure capacity. Zoning regulations may be made with reasonable consideration for the protection of historic factors and shall be made with reasonable consideration for the protection of existing and potential public surface and ground drinking water supplies.”

       See footnote 3, supra.

       See footnote 3, supra.


text:
    State of Connecticut v. AFSCME, Council 4, Locals 196, 318, 355, 478, 538, 562, 610 and 704
    (5373)
    Borden, Bieluch and O’Connell, Js.
    Argued November 12, 1987 —
    decision released February 16, 1988

      J. William Gagne, Jr., for the appellant (defendant).

      Brian J. Comerford, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert E. Walsh, assistant attorney general, for the appellee (state).
   O’Connell, J.

The defendant union appeals from the judgment of the trial court vacating an arbitrator’s award in an employment dispute. The award upheld a union member’s grievance concerning the termination of her employment by her employer, the state of Connecticut. We find no error.

The court found the following facts. The plaintiff state of Connecticut and the defendant union had a collective bargaining agreement in force which outlined the terms of employment, termination and grievance procedures. On or about December 18, 1984, a member of the union (grievant) filed a grievance against the state concerning her termination as an employee of Mattatuck Community College (college).

The grievant, a payroll clerk, was first hired as a provisional employee on November 28,1983. On August 28, 1984, after passing the competitive examination for the payroll clerk position, she was appointed a permanent employee. The grievant’s employment was terminated on January 17,1985, and, thereafter, the union, on her behalf, filed a grievance seeking to determine whether the termination was for “just cause.” The state contested the arbitrability of the grievance.

Under the collective bargaining agreement, dismissal of a permanent employee during or at the end of a six month probationary “working test period” was not a grievable or arbitrable action; conversely, those employees who satisfactorily completed the working test period could only be dismissed for just cause, an arbitrable issue. On July 10,1985, an arbitrator determined that the grievance was arbitrable, upheld the grievance, required the grievant to be reinstated to her position, and paid back wages. The arbitrator found that because the grievant’s supervisors had erroneously informed the grievant that her working test period had ended when it had in fact just begun, the state had waived its right to terminate the grievant’s employment without just cause. The state appealed to the Superior Court, where its motion to vacate the award was granted on the grounds (1) that the arbitrator exceeded her authority in determining that the dispute was arbitrable, (2) that the arbitrator improperly found that the state had waived its rights under the bargaining agrément, and (3) that the arbitrator did not draw the essence of the award from the agreement itself.

The defendant union claims error in, inter alia, the trial court’s granting of the plaintiff’s application to vacate the award, and its denial of the union’s counter-application to confirm. Because we agree with the trial court’s holding that the arbitrator exceeded her authority in determining that the dispute was arbitrable, we need not address the merits of the award itself.

Our role in reviewing arbitration awards is very limited. “Arbitration affords a contractual remedy designed to expedite, in an informal setting, the resolution of disputes. Daginella v. Foremost Ins. Co., 197 Conn. 26, 33, 495 A.2d 709 (1985). Because of our respect for the autonomy of the arbitration process, which requires only minimal judicial intrusion, we will not disturb an arbitration award unless it clearly falls within the proscriptions of General Statutes § 52-418.” State v. Connecticut Council 4, CEU, AFSCME, 7 Conn. App. 286, 289, 508 A.2d 806 (1986). General Statutes § 52-418 (a) provides in pertinent part that “[ujpon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects: ... (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.” Generally, when an award is challenged pursuant to General Statutes § 52-418, the reviewing court is limited to comparing the award with the grievant’s submission to the arbitrator. See Stratford v. Local 134, IFPTE, 201 Conn. 577, 583, 519 A.2d 1 (1986). If the award conforms to the submission it will not be vacated. Id. We recently held, however, in American Fabrics Co. v. United Textile Workers of America, 12 Conn. App. 642, 646, 533 A.2d 579 (1987), that in limited circumstances a court will broaden its review of an arbitrator’s decision: “These circumstances are where a party claims ‘that the award, as issued, is inherently inconsistent with the underlying collective bargaining agreement . . . [Board of Education v. Local 818, 5 Conn. App. 636, 640, 502 A.2d 426 (1985)]. In such a case, ‘this court will review the award ... to determine whether it “draws its essence from the collective bargaining agreement.” ’ Id., quoting United Steelworkers v. Enterprise Wheel & Car Corporation, [363 U.S. 593, 597, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960)].”

■ The claims in this appeal warrant this broader standard of review, as they attack the arbitrator’s ability to draw the essence of her award from the collective bargaining agreement. Applying this broadened review, we conclude that the arbitrator failed to draw her award from the essence of the bargaining agreement in finding that the grievance was arbitrable, and therefore exceeded her powers pursuant to General Statutes § 52-418.

A collective bargaining agreement ratified by state employees contains two types of terms: (1) the express terms contained in the agreement itself; and (2) all applicable state statutes and regulations which constitute implied terms of the agreement. State College AAUP v. State Board of Labor Relations, 197 Conn. 91, 98-99, 495 A.2d 1069 (1985). If a union representing state employees wishes to include in its bargaining agreement terms which contradict existing statutes or regulations, it must obtain express approval from the legislature to allow the statutes or regulations in question to be superseded. See General Statutes § 5-278 (b) and (e); State College AAUP v. State Board of Labor Relations, supra; Board of Trustees v. Federation of Technical College Teachers, 179 Conn. 184, 190-91, 425 A.2d 1247 (1979). In the present case, both the applicable state regulation and the applicable section of the agreement use the identical mandatory language in establishing the commencement date of the working test period for employees, such as the grievant, who are appointed to permanent positions in the state civil service; “Each appointee to a permanent position in the classified service shall serve a working test period. Such working test period shall begin on the date of appointment from the employment list, if the position is competitive. Otherwise, the working test period shall begin on the date of the original permanent position.” (Emphasis added.) Regs., Conn. State Agencies § 5-230-1; Article XII, § 2 of the collective bargaining agreement.

The express terms of Article XII, § 2 of the agreement in the present case additionally provide that “[t]he Working Test Period for classes covered by this Agreement shall be six (6) months.” The grievant received her permanent appointment on August 28, 1984. Thus, her six month working test period would have expired on February 27, 1985. She was terminated on January 17,1985, well within her working test period. Pursuant to Article XV, § 11 (a) of the agreement, the dismissal of the grievant before completion of her working test period does not constitute a grievable dismissal. Applying the express language of the agreement as well as the implied language of the applicable regulation, it is clear that the arbitrator exceeded her authority in determining that the grievance was arbitrable.

The arbitrator justified her finding by stating that the grievant’s superiors applied the time served by the grievant as a provisional employee toward the mandatory six month working test period. She reasoned that other state bargaining units allowed this practice under “clauses” contained in their collective bargaining agreement, and that “[t]he College simply extended this same benefit to [the grievant], even though she was covered by a different agreement. ” (Emphasis added.) The fallacy in this reasoning is apparent on its face. Stating that the action of the college was justified by the terms of another bargaining agreement, when this agreement fails to contain terms which would justify the arbitrator’s conclusion, is a clear example of an award which is inherently inconsistent with the underlying collective bargaining agreement. See Board of Education v. Local 818, supra, 640. “When the arbitrator’s words manifest an infidelity to this obligation [to draw its essence from the agreement], courts have no choice but to refuse enforcement of the award.” United Steelworkers v. Enterprise Wheel & Car Corporation, supra, 597.

We also note that the arbitrator’s finding, that the grievance was arbitrable, conflicted with established principles of public policy relating to public sector employment. “ ‘The law provides for a complete system of procedure designed to secure appointment to public positions of those whose merit and fitness have been determined by examination . . . ” Resnick v. Civil Service Commission, 156 Conn. 28, 33, 238 A.2d 391 (1968). It is mandatory that every requirement of the civil service law be followed; substantial compliance with its requisites is insufficient. See Jones v. Civil Service Commission, 175 Conn. 504, 510, 400 A.2d 721 (1978); Resnick v. Civil Service Commission, supra, 32-33. The good faith of the parties will not justify waiving the stringent application of hiring prerequisites in civil service employment matters. “Strict compliance is necessarily required to uphold the sanctity of the merit system . . . good faith of the parties will not validate illegal appointments, nor will continued employment in an in validly obtained position.” (Citations omitted.) Cassella v. Civil Service Commission, 202 Conn. 28, 35, 519 A.2d 67 (1987). “Parties cannot expect an intervening arbitral award approving conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them.” State v. Council 4, CEU, AFSCME, supra, 290; see Board of Trustees v. Federation of Technical College Teachers, supra, 195.

We conclude that the arbitrator wrongly determined that the termination of the grievant was an arbitrable matter.

There is no error.

In this opinion the other judges concurred.

       Article I, § 2 (d) of the bargaining agreement defines a provisional employee as “an employee who has been appointed to a permanent position pending State examination or examination results.”

       The issues are comprehensively framed by the statement of issues contained in the state’s brief which provides:
      “A. Did the Superior Court err in ruling that an arbitrator’s decision is subject to judicial review under [General Statutes] § 52-418, with respect to the fidelity of the arbitrator to her obligation to issue an award which draws its essence from the collective bargaining agreement and which does not conflict with state statutes or regulations?
      “B. Did the Superior Court err in its conclusion that the arbitrator in the instant case had exceeded her powers by her finding that the state of Connecticut had waived the requirement that the grievant . . . serve a six month working test period commencing with the date of her appointment from the competitive list and by ruling that the grievance was arbitrable?”

       We note, for example, that the requirement contained in General Statutes § 5-230, that the working test period range in duration from three months to one year, was expressly modified by the collective bargaining agreement to a duration of six months, and was expressly approved by the legislature, as noted in the supersedence appendix to the agreement. We note also, that the supersedence appendix fails to indicate a change in the commencement date of employee working test periods.

       It is not disputed that the position is “a permanent position in the classified service,” to which the language quoted in the text would apply.

       Article XII, § 1 provides in pertinent part that: “The Working Test Period shall be deemed an extension of the examination process.”


author: Norcott, J.

text:
    Allan Pagni et al. v. Phyllis Corneal et al., Coexecutrices (Estate of Mildred Browning)
    (4407)
    Dupont, C. J., Bieluch and Norcott, Js.
    Argued October 7, 1987 —
    decision released February 16, 1988

      William J. Anastasi, for the appellants (defendants).

      David E. Wyskiel, for the appellees (plaintiffs).
   Norcott, J.

The defendants appeal from the judgment rendered by the trial court for the plaintiffs in this contract action. The defendants claim that the trial court erred (1) in denying the defendants’ motion to dismiss made at the close of the plaintiffs’ case, (2) in allowing the plaintiffs to amend their pleadings at the close of evidence to include a claim of quantum meruit, thus conforming the pleadings to the evidence, (3) in eliciting testimony from plaintiff Janet Pagni regarding the reasonable value of her services to the decedent, Mildred Browning, and (4) in holding an in-chambers conference at which a possible settlement was discussed. We find no error.

The plaintiffs alleged and produced evidence that in September, 1980, the plaintiffs entered into an oral agreement with the defendants to provide personal care for the decedent. The defendant Phyllis Corneal was acting under a power of attorney at the time the agreement was entered into. Under the terms of the agreement, the plaintiffs were required to provide constant care for the decedent every week from Monday through Friday. The plaintiffs were to have their weekends free, however, and were to be relieved by one of the defendants on Saturday morning. As compensation for the care they were to provide, the plaintiffs were to receive free rent and utilities at the decedent’s place of residence.

The plaintiffs moved into the decedent’s residence on October 18, 1980, and began providing the agreed upon care. The plaintiffs provided this care until the decedent’s death on December 24, 1981. During this period of time, the plaintiffs were relieved by the defendants for only one day of each of two weekends. The plaintiffs remained with the decedent the remaining weekends. While she was living, the decedent promised to pay the plaintiffs for the additional care they provided to her on weekends. In addition, the decedent promised to leave the plaintiffs money in her will as consideration for the extra weekend care.

I

The defendants’ first claim is that the trial court erred in denying their motion to dismiss made at the close of the plaintiffs’ case. The defendants argue that the plaintiffs failed to make a prima facie showing of any sort of legally compensable harm. We disagree.

“Whether the [plaintiffs] made out a prima facie case, [presents] a question of law for the court. Falker v. Samperi, 190 Conn. 412, 419, 461 A.2d 681 (1983). ‘The test is whether plaintiff’s evidence is sufficient, in point of law, to make out a prima facie case in his favor.’ Ace-High Dresses, Inc. v. J.C. Trucking Co., 122 Conn. 578, 580, 191 A. 536 (1937).” In re Juvenile Appeal (85-1), 3 Conn. App. 158, 160, 485 A.2d 1355 (1985). In deciding this question of law, it is “the duty of the trial court to take as true the evidence offered by the plaintiff[s] and to interpret it in the light most favorable to [them], with every reasonable inference being drawn in [their] favor.” Berchtold v. Maggi, 191 Conn. 266, 271, 464 A.2d 1 (1983). If, after viewing the evidence in a light most favorable to the plaintiffs, the court could not reasonably find the essential issues on the complaint in their favor, a judgment of dismissal is appropriate. Hinchliffe v. American Motors Corporation, 184 Conn. 607, 609, 440 A.2d 810 (1981).

After reviewing the record, we agree with the trial court that a judgment of dismissal was not appropriate in this case. At trial, the plaintiffs produced testimony that the parties had entered into an agreement which provided that the defendants were to relieve them of their responsibility for the decedent every weekend. They produced evidence that the defendants, in fact, relieved them on only two of the sixty-one weekends during which the plaintiffs cared for the decedent and then, only in part. Additionally, they produced evidence that the decedent had agreed to compensate them for the extra care provided.

Interpreting these facts in a light most favorable to the plaintiffs, a rational trier could have found that the parties had entered into a contract and that the defendants had breached that contract. A rational trier could have concluded that because of that breach the plaintiffs were required to perform necessary and valuable services for which they were never compensated. Additionally, the trier could have found that the plaintiffs had entered into a contract with the decedent to provide care for her on weekends. See Ubysz v. DiPietro, 185 Conn. 47, 51-52, 440 A.2d 830 (1981). These are precisely the allegations made by the plaintiffs in their complaint. Accordingly, we find that the trial court did not err in denying the defendants’ motion to dismiss.

II

The defendants’ second claim is that the trial court erred in allowing the plaintiffs to amend their complaint at the close of the evidence to include a claim of quantum meruit. The defendants argue that the plaintiffs’ original complaint alleged a breach of an express contract and that a claim of quantum meruit was totally inconsistent with that allegation. We disagree.

Practice Book § 178 provides that “[i]n all cases of any material variance between allegation and proof, an amendment may be permitted at any stage of the trial. . . . Immaterial variances shall be wholly disregarded. ” (Emphasis added.) It has long been established that a claim of quantum meruit is not a material variance from a claim sounding in express contract. Fuessenich v. DiNardo, 195 Conn. 144, 151-52, 487 A.2d 514 (1985); Cedo Bros., Inc. v. Feldmann, 161 Conn. 265, 272, 287 A.2d 374 (1971); Strimiska v. Yates, 158 Conn. 179, 183, 257 A.2d 814 (1969); Shmilovitz v. Bares, 75 Conn. 714, 715-16, 55 A. 560 (1903). Furthermore, we note that Practice Book § 193 provides in relevant part that “[i]n an action for goods sold at a reasonable price, [the plaintiff] may recover a different or a reasonable price, if the proof fails to establish the price alleged; and the like rule shall prevail in actions for work done, materials furnished, or use and occupation of land.” Accordingly, we find that the trial court did not err in allowing the complaint to be amended to include a claim of quantum meruit.

III

The defendants’ third claim is that the trial court erred in questioning the plaintiffs as to the reasonable value of the services they performed for the decedent. Because we find that the plaintiffs’ complaint was broad enough to include a claim sounding in quantum meruit, we hold that the trial court did not abuse its discretion in questioning the plaintiffs. Hutchinson v. Plante, 175 Conn. 1, 3, 392 A.2d 488 (1978).

IV

The defendants final claim of error is that the trial judge’s attempt in chambers to settle the case after the conclusion of the testimony of one of the defendants showed partiality and bias. We first note that the content of the alleged chambers discussion is not part of the record before us. We further note that at no time during the trial did the defendants make a motion for recusal or a motion for mistrial alleging that the judge had acted improperly. Our courts have repeatedly held that we will not review claims of judicial bias where neither a motion to recuse nor a motion for mistrial was made. Krattenstein v. G. Fox & Co., 155 Conn. 609, 615-16, 236 A.2d 466 (1967); Trapp v. Trapp, 6 Conn. App. 143, 145, 503 A.2d 1187 (1986). Accordingly we decline to review this claim.

There is no error.

In this opinion the other judges concurred.

       The defendants are coexecutrices of the estate of Mildred Browning.

       In Perlmutter v. Johnson, 6 Conn. App. 292, 297, 505 A.2d 13, cert, denied, 200 Conn. 801, 509 A.2d 517 (1986), we held that Practice Book § 193 precludes the use of quantum meruit when the parties agree to the value of the services performed. This exception, however, does not apply to the present case.


text:
    Rosaline Sternberg et al. v. Cheryl Infante
    (5425)
    Spallone, Bieluch and Stoughton, Js.
    Argued December 16, 1987 —
    decision released February 16, 1988

      Gerald M. Gay nor, with whom was Jean Marie Riccio-Ryan, legal intern, for the appellant (defendant).

      Richard L. Albnecht, with whom, on the brief, was William F. Askinazi, for the appellees (plaintiffs).
   Spallone, J.

The defendant appeals from the judgment rendered, after a trial to the court, awarding the plaintiffs specific performance of a contract for the sale of real estate.

The defendant claims that the trial court erred (1) in finding that the binder agreement between the plaintiffs and the defendant satisfied the requirements of a “written memorandum” under the statute of frauds, (2) in finding that the plaintiffs did not breach the terms of the binder agreement, and (3) in finding against the defendant on her counterclaim, which claimed damages stemming from the plaintiffs’ filing of a lis pendens against the defendant’s property. We find no error.

The following facts are pertinent to this appeal. The plaintiffs and the defendant entered into a binder agreement containing the terms of sale accepted by the parties for the purchase and sale of the defendant’s condominium which was described therein as “136B Abner Court.” The binder also contained a clause which indicated that the plaintiffs were to sign a contract of sale by Thursday, December 5, 1985. The contract did not expressly state that time was to be “of the essence.” Because the plaintiffs did not sign the contract until December 6,1985, the defendant refused to convey the property. The plaintiffs thereafter filed suit against the defendant and caused a lis pendens to be recorded upon the land records, thereby encumbering the title to the premises. The defendant filed a counterclaim against the plaintiffs claiming damages resulting from the filing of the lis pendens by the plaintiffs. After a trial to the court, judgment was rendered on the complaint in favor of the plaintiffs, who were granted specific performance, and against the defendant on her counterclaim. This appeal followed.

The defendant first claims that the description of the property contained in the binder was inadequate; therefore, the agreement could not be considered a “written memorandum” sufficient for the statute of frauds. The defendant alleges that the description of the property was inadequate because, although the condominium was identified as “136B Abner Court,” the binder agreement did not contain the name of the specific town or city where the real estate was located. The trial court heard testimony that the property was located in Bridgeport, Connecticut. The defendant did not object at trial to the introduction of the parol evidence regarding the location of the property nor was any objection raised when this same information was elicited on cross-examination of the defendant. We refuse to consider this claim because it was not properly preserved at trial. Our rules of practice require that in order to preserve a ground for appeal, counsel must object to the court’s ruling on the admission of evidence, state the grounds upon which the objection is made and take exception to the ruling. Practice Book § 288. These requirements are not simply formalities. State v. Rogers, 199 Conn. 453, 461, 508 A.2d 11 (1986). They serve to alert the court to potential error while there is still time to act. State v. Jones, 193 Conn. 70, 88, 475 A.2d 1087 (1984). We are loath to assign error to a court’s evidentiary ruling on the basis of objections never raised at trial. State v. Brice, 186 Conn. 449, 457, 442 A.2d 906 (1982). As counsel failed to object to the introduction of the parol evidence at the trial, the trial court was justified in considering the evidence when interpreting whether the binder in this case complied with the statute of frauds. See, e.g., Pigeon v. Hatheway, 156 Conn. 175, 182, 239 A.2d 523 (1968); Gendelman v. Mongillo, 96 Conn. 541, 544, 114 A. 914 (1921); McMahon v. Plumb, 88 Conn. 547, 552, 92 A. 113 (1914). The trial court did not, as a matter of law, act erroneously in finding and concluding that the binder agreement satisfied the statute of frauds.

The defendant’s second claim of error, that the court erred in finding that the plaintiffs did not breach the the binder agreement, must also fail. The court adequately considered the applicable law when it found that time was not of the essence in the binder agreement between the parties, and that the intention of the parties should be interpreted as requiring compliance within a reasonable time of the date or time specified. Kakalik v. Bernardo, 184 Conn. 386, 392-94, 439 A.2d 1016 (1981). The phrase “time is of the essence” does not appear in the binder agreement and the fact that a date certain is fixed in the agreement does not make time of the essence. Ravitch v. Stollman Poultry Farms, Inc., 165 Conn. 135, 148, 328 A.2d 711 (1973). The evidence discloses that the plaintiffs signed the contract on December 6, one day after the date called for in the binder. The trial court’s express findings — that the date selected for the signing, December 5, was an arbitrary date chosen by the parties and that the critical date was the closing date established as January 3, 1986 — cannot be found to be clearly erroneous. Practice Book § 4061. A delay of one day in the signing of the contract by the plaintiffs is not unreasonable. Grenier v. Compratt Construction Co., 189 Conn. 144, 151, 454 A.2d 1289 (1983) (ten day delay not unreasonable); John J. Brennan Construction Corporation, Inc. v. Shelton, 187 Conn. 695, 713, 448 A.2d 180 (1982) (one day delay in rejecting bid not unreasonable).

There is no merit to the defendant’s final claim of error that the trial court erred in finding for the plaintiffs on the defendant’s counterclaim. The plaintiffs’ filing of the lis pendens was in conjunction with the filing of the complaint upon which they prevailed. The fact that the plaintiffs were awarded judgment on their complaint supports the propriety of the lis pendens and fully justifies the judgment against the defendant on her counterclaim.

We hold that the trial court’s determinations — that the binder agreement between the parties satisfied the statute of frauds, that time was not of the essence as to when the contract was to be signed, and that judgment should be rendered for the plaintiff — were fully justified under the facts and circumstances of this case and reflected an appropriate application of the law.

There is no error.

In this opinion the other judges concurred.

       The defendant had entered into a second binder agreement with a third party who sued the defendant on the basis of a breach of that binder. The defendant’s counterclaim against the plaintiffs was based upon the plaintiffs’ allegedly wrongful filing of the lis pendens causing the defendant to be sued by the third party. The present case and the defendant’s suit with the third party were tried together; however, the case between the defendant and the third party is not part of this appeal.