author: MULCAHY, J.

text:
    CHARLES CASTONGUAY ET AL. v. TODD PLOURDE ET AL.
    (AC 16227)
    O’Connell, Spear and Mulcahy, Js.
    Argued March 20
    officially released August 19, 1997

      John Rose, Jr., with whom was Scott A. Bennett, for the appellants (named defendant et al.).

      Dean B. Kilboume, for the appellees (plaintiffs).
   Opinion

MULCAHY, J.

The defendants appeal from the granting of an injunction prohibiting the continued construction of a house on land that abuts that of the plaintiffs. The trial court found that the design and location of the structure violated the provisions of a declaration of restrictions and covenants (declaration) recorded on the Bristol land records.

The defendants claim the trial court improperly concluded that (1) the plaintiffs were entitled to bring this action to enforce the terms and restrictions of the declaration, (2) the terms of the declaration protect the plaintiffs’ panoramic view, (3) the plaintiffs’ action for equitable relief is not barred by laches, and (4) the injury to the defendants resulting from the injunction is not greatly disproportionate to the injury complained of by the plaintiffs. The defendants also maintain that the trial court’s order does not adequately delineate the rights and obligations of the parties. We affirm the judgment of the trial court.

The following facts are germane to this appeal. The parties are owners of residential properties in Cider Mill Estates, a thirty-four lot subdivision located in Bristol. Lornik, Inc. (Lornik), the original owner and developer of Cider Mill Estates, acting through its president, Robert J. Tabacco, executed and recorded the declaration on June 24, 1986. The declaration refers to lots enumerated on a recorded subdivision map dated February 28, 1986.

The subdivision is located on an expansive hillside affording property owners a commanding easterly view of the Hartford skyline and the surrounding countryside. Within the subdivision, Old Cider Mill Road is to the east of Hill Street, the latter running in a generally north-south direction. The plaintiffs Charles Caston-guay and Susan Castonguay are the owners of lot twenty-seven, and the plaintiffs Peter Howard and Lois Howard are the owners of lot 28. Both properties front on the east side of Hill Street. At all relevant times, the plaintiffs have resided in homes constructed on their respective lots. The defendants, Todd Plourde and Cheri LeClair, are the owners of lot 9, which is located directly east of, and abutting, lots 27 and 28. The plaintiffs’ lots drop off to the east, with their rear boundaries being approximately seventeen feet below the frontage on Hill Street.

The Castonguay house was constructed on lot 27 by Charles Castonguay’s father, Louis Castonguay, in 1987. Charles Castonguay purchased the property from his father in 1993. The Howards purchased lot 28 from Lornik in 1987 and constructed their home on the lot shortly thereafter. The deeds through which the plaintiffs obtained title recite that the conveyed premises are “subject to a Declaration of Restrictions and Covenants from Lomik, Inc., dated June 24, 1986 and recorded in the Bristol Land Records.” The defendants purchased lot 9, as unimproved land, on November 8, 1995, from Bristol Financial Service, which had obtained title via a bank foreclosure. It is undisputed that all properties involved in this appeal are subject to the terms of the declaration and that the defendants had notice of the restrictions.

The declaration contains a number of restrictions and requirements. Paragraph twenty of the declaration provides: “Location of dwelling house, garage and any other buildings or additions to buildings to be erected on any lot shall be subject to written approval of Lornik, Inc., or its successors or assigns, in order to preserve the view of other lot owners.” The plaintiffs allege that the defendants are building on lot 9 a “very high” two story structure that obstructs their view in violation of the declaration.

The trial court’s conclusions were based on the evidence presented and after an on-site viewing of the entire area. It found that the general layout of the subdivision and the location of the houses on Hill Street and Cider Mill Road were intended to take full advantage of the “grand panoramic view.” Further, the court found that the houses on Old Cider Mill Road were all built far enough below those on Hill Street to preserve for Hill Street residents a view from their first and second floors over the roofs of the houses below and to the east.

The trial court also found that an important consideration of the plaintiffs in the purchase of their properties was enjoyment of the view to the east, and that, in reliance on the terms of the declaration, they went to considerable expense in the design and construction of their homes so as to maximize enjoyment of that view. The Castonguay house has large glass doors opening on two levels of decks, providing an easterly view from various rooms, as well as from their decks. Louis Castonguay, when building his house, was aware of the restrictions and discussed with Tabacco the need for a low roof on any future lot 9 house. The Howard home is a contemporary design with angles specially built into the structure to allow full advantage of the easterly view. Peter Howard, before purchasing lot 28, discussed lot 9 with Tabacco, receiving assurances that whatever was built would not substantially impede the view. The Howards, aware of the restrictions, would not have purchased lot 28 if they believed their view could be obstructed.

Prior to commencing construction, the defendants met with Tabacco on two occasions, once in April and again in May, 1996. At the first meeting, Plourde had the plans for the house, but not the plot plan. On the second occasion, Tabacco was shown a plot plan dated March 6, 1996; Lornik, through Tabacco, approved in writing the plan, specifications and location of the defendants’ house.

At one point, Charles Castonguay, noticing activity on lot 9, went over to visit the defendants for the purpose of meeting them. The defendants were roughly staking out their prospective house. The meeting was cordial and brief, without any discussion of the design or height of the future structure. At a second visit to lot 9, on March 24, 1996, Charles Castonguay briefly looked at one or two pages of the defendants’ building plans while the parties engaged in light conversation.

Construction of the defendants’ home began in May, 1996. It advanced to the framing of the full house, including its “bowed roof.” The trial court’s memorandum of decision describes the house as a “very high” structure, the peak of its “bowed roof’ approximately thirty and one-half feet above the level of the land, having an attached garage, which is a full two stories, approximately twenty-five and one-half feet in height.

On June 12, 1996, when the initial roof rafters were being placed, and the unusual height of the roof became apparent, the plaintiffs filed this action for equitable relief. The trial court enjoined the defendants “from continuing to build the house on lot 9 which is now under construction, and from building any house on said lot which will unduly restrict the panoramic view of the plaintiffs.”

I

The defendants first contend that the restrictions contained in the declaration are not appurtenant. The defendants do not contest the existence of the general development scheme. Instead, they argue that because a third party’s approval was required, the restrictions were not enforceable as to them but, if against anyone, only against the third party. Their claim is that the covenant is personal to Lomik and cannot be enforced by other grantees because it does not run with the land. We disagree.

Established principles guide our determination of the appropriate scope of review of this claim. To determine whether the restrictions contained in the declaration are appurtenant, we must interpret the language of the creating instrument. The meaning and effect of the language are to be determined by the intent of the parties as expressed in the deed. See Kelly v. Ivler, 187 Conn. 31, 39, 450 A.2d 817 (1982); Taylor v. Dennehy, 136 Conn. 398, 402, 71 A.2d 596 (1950). The determination of the intent behind language in an instrument of conveyance, “considered in the light of all the surrounding circumstances, presents a question of law on which our scope of review is plenary. . . . We are thus unconstrained by the trial court’s legal conclusion as to intent.” (Citations omitted; internal quotation marks omitted.) Dean v. Riley, 31 Conn. App. 87, 92, 623 A.2d 521 (1993); see Lago v. Guerrette, 219 Conn. 262, 267-68, 592 A.2d 939 (1991); see also Hare v. McClellan, 234 Conn. 581, 593-94, 662 A.2d 1242 (1995); Carbone v. Vigliotti, 222 Conn. 216, 222, 610 A.2d 565 (1992); Kelly v. Ivler, supra, 39; Contegni v. Payne, 18 Conn. App. 47, 51, 557 A.2d 122, cert. denied, 211 Conn. 806, 559 A.2d 1140 (1989); Marion Road Assn. v. Harlow, 1 Conn. App. 329, 332, 472 A.2d 785 (1984).

“For a determination of the character and extent of an easement created by deed we must look to the language of the deed, the situation of the property and the suixounding circumstances in order to ascertain the intention of the parties. . . . The language of the grant will be given its ordinary import in the absence of anything in the situation or surrounding circumstances which indicates a contrary intent. . . . The meaning and effect of the reservation are to be determined, not by the actual intent of the parties, but by the intent expressed in the deed, considering all its relevant provisions and reading it in the light of the surrounding circumstances . . . .” (Citations omitted; internal quotation marks omitted.) Lago v. Guerrette, supra, 219 Conn. 267-68; see also Pulver v. Mascolo, 155 Conn. 644, 649, 237 A.2d 97 (1967).

A reservation in a covenant will be interpreted as appurtenant if, from the surrounding circumstances and other relevant provisions in the deed, the parties intended it to run with the land. See Stiefel v. Lindemann, 33 Conn. App. 799, 806-807, 638 A.2d 642, cert. denied, 229 Conn. 914, 642 A.2d 1211 (1994); Expressway Associates II v. Friendly Ice Cream Corp., 22 Conn. App. 124, 127, 576 A.2d 575 (1990), rev’d in part on other grounds, 218 Conn. 474, 590 A.2d 431 (1991); cf. Blanchard v. Maxson, 84 Conn. 429, 433, 80 A. 206 (1911) (“easement of way will never be presumed to be personal when it can fairly be construed to be appurtenant to land”). “The only certain method of avoiding controversy and making sure that an easement or a covenant in an instrument . . . will be construed as other than personal is to use appropriate language to make the intention clear. In the case of a natural person, such language might properly be ‘heirs and assigns.’ In the case of a corporation, it might properly be ‘successors and assigns.’ ” Brown v. Connecticut Light & Power Co., 145 Conn. 290, 299, 141 A.2d 634 (1958). “[W]here a restrictive covenant contains words of succession ... a presumption is created that the parties intended the restrictive covenant to run with the land.” Weeks v. Kramer, 45 Conn. App. 319, 323, 696 A.2d 361 (1997). Relevant factors include: “whether the language of the reservation indicates that the easement is intended to run with the land [and] . . . whether the easement is of value to the dominant estate itself . . . .” Stiefel v. Lindemann, supra, 807.

In this case, the two factors support the presumption that the covenant runs with the land. The language of the declaration unequivocally indicates that the restriction was intended to run with the land. It includes the words of succession several times as well as repeated statements that the covenants “run with the land.” In regard to the factor of value, the restriction enhances and will continue to enhance the value of the dominant estate, rather than merely conveniencing the grantor. See Stiefel v. Lindemann, supra, 33 Conn. App. 808; see generally 1 Am. Jur. 2d, Adjoining Landowners § 96 (1994) (as general rule, if covenant or agreement for view benefits land to which it relates and enhances value, easement created becomes appurtenant to land and passes with it). This is “strong evidence” and “must be given great weight in the ascertainment of the intent of the parties . . . .” Kelly v. Ivler, supra, 187 Conn. 42. If the easement is in its nature an appropriate and useful adjunct to the land conveyed, with nothing to show that the parties intended it to be a mere personal right, then it is an easement appurtenant. See Dean v. Riley, supra, 31 Conn. App. 90. There is nothing in the record to contradict the trial court’s findings indicating that the restriction here was of significant value to the land now owned by the plaintiffs.

The defendants argue that established case law in Connecticut and elsewhere holds that any covenant requiring approval of design or location by a common grantor of a subdivided tract is personal in nature and may not, therefore, be enforced by one owner in the tract against another owner. They cite Pulver v. Mascolo, supra, 155 Conn. 644, and Patrone v. Falcone, 345 Mass. 659, 189 N.E.2d 228 (1963). The defendants’ reliance on Pulver and Patrone is misplaced. In Pulver and Patrone, the courts respectively ruled that, in light of the surrounding circumstances and the language of the covenants, the parties did not intend for the restrictions to run with the land. The covenants at issue in those cases, however, unlike in the present case, did not expressly provide that the restrictions were to run with the land or that they were binding on the successors or assigns of the grantor and the heirs or assigns of the grantees.

In light of the intent expressed in the covenant, the nature of the restriction and the other surrounding circumstances, we conclude the trial court correctly determined that the restrictions were clearly and expressly intended to run with the land. Because any grantee under a general or uniform development scheme may enforce the restrictions against any other grantee; see Contegni v. Payne, supra, 18 Conn. App. 52; Marion Road Assn. v. Harlow, supra, 1 Conn. App. 333; the plaintiffs were entitled to enforce the restrictions against the defendants.

II

The defendants claim that the trial court incorrectly construed the scope of the restriction. They argue that the restriction does not entitle the plaintiffs to the preservation of their view, as the trial court interpreted the term. They contend that the restriction was improperly expanded by the trial court’s inteipretation of the term “view” as “panoramic view.” We disagree.

In reviewing this decision by the trial court, we are confronted with a review of not just the language of the declaration, but also the trial court’s factual findings underlying its conclusions. “[W]hen the underlying facts that form the basis of the trial court’s legal conclusion as to intent are challenged, our review is limited to determining whether the findings as to those underlying facts are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those findings are clearly erroneous.” Dean v. Riley, supra, 31 Conn. App. 92.

In reaching its factual findings, the trial court received and weighed evidence emanating from two sources, the first being Tabacco, the creator of the covenant. It is proper for the trial court to determine the creator’s intent by examining all of the surrounding circumstances. See id., 93; see also Lake Garda Improvement Assn. v. Battistoni, 160 Conn. 503, 513, 280 A.2d 877 (1971). The trial court evaluated the testimony of the creator, which necessarily gave rise to an assessment of credibility. See Dean v. Riley, supra, 31 Conn. App. 93; see also American Trading Real Estate Properties, Inc. v. Trumbull, 215 Conn. 68, 75, 574 A.2d 796 (1990).

A second source of evidence before the trial court relating to the meaning of the language of paragraph twenty was its own on-site viewing of the properties and the entire area. “A view of the subject matter in dispute may be taken by the court, in the exercise of a sound discretion, whenever it is necessary or important to a clearer understanding of the issues.” (Internal quotation marks omitted.) Conservation Commission v. Price, 193 Conn. 414, 425, 479 A.2d 187 (1984). “Information obtained through a visual observation of the locus in quo is just as much evidence as any other evidence in the case.” Kuras v. Kope, 205 Conn. 332, 345 n.7, 553 A.2d 1202 (1987); see Anderson v. Latimer Point Management Corp., 208 Conn. 256, 262, 545 A.2d 525 (1988); Birnbaum v. Ives, 163 Conn. 12, 20, 301 A.2d 262 (1972); Kelman v. McDonald, 24 Conn. App. 398, 401-402, 588 A.2d 667 (1991). “Evidence obtained by visual inspection is not subject to appellate review. Lupinacci v. Planning & Zoning Commission, 153 Conn. 694, 700, 220 A.2d 274 (1966).” Kelman v. McDonald, supra, 402. Conclusions based on such evidence are “entitled to great weight on appeal”; Saphir v. Neustadt, 177 Conn. 191, 199, 413 A.2d 843 (1979); and are subject to review only for clear error. See Kuras v. Kope, supra, 345 n.7.

In so far as it received testimonial and site observation evidence, the trial court’s role was that of a fact finder. “In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.” (Internal quotation marks omitted.) Kelman v. McDonald, supra, 24 Conn. App. 401. We “defer to the court’s determination as to the credibility of witnesses and its finding of the facts underlying that conclusion.” Dean v. Riley, supra, 31 Conn. App. 93. “We cannot disturb the trial court’s finding if it is legally supported by the evidence of the surrounding circumstances and the situation of the property.” Mastronardi v. Infante, 34 Conn. App. 584, 591, 642 A.2d 84, cert. denied, 231 Conn. 907, 648 A.2d 154 (1994); see also Wheeler v. Foster, 44 Conn. App. 331, 334, 689 A.2d 523 (1997).

In ascertaining the intended meaning of the term “view” as used in the covenant, the trial court made findings and reached its conclusions after properly accepting testimony and considering the evidence of the parties’ intentions and the surrounding circumstances. See Saphir v. Neustadt, supra, 177 Conn. 199-200; see also Ezikovich v. Linden, 30 Conn. App. 1, 6, 618 A.2d 570, cert. denied, 225 Conn. 913, 623 A.2d 1023 (1993). It is clear from the trial court’s decision that Tabacco’s testimony was not given great weight. This is a decision that we cannot disturb on appeal absent a showing of clear error. See Dean v. Riley, supra, 31 Conn. App. 93. From its inspection of the properties and from the testimony it heard, the trial court could reasonably have made findings and, from those findings, reached its conclusions as to the intent expressed in the covenant. See generally Saphir v. Neustadt, supra, 199-200. The court’s legal and factual conclusions are not clearly erroneous because they are supported by underlying factual findings set forth in its memorandum of decision, and the subordinate facts are amply supported by the evidence. See Wheeler v. Foster, supra, 44 Conn. App. 335; Kelman v. McDonald, supra, 24 Conn. App. 402.

The defendants contend that since the term “view” is not defined in the covenant, it cannot be expanded to include “panoramic view.” Such an interpretation, they claim, contravenes the principle that terms of a restrictive covenant are to be construed narrowly and ambiguous terms are to be construed against the cove-nantee. The terms of a covenant, however, cannot be construed in a vacuum, but are to be understood in context. The word “view,” outside of the entire context in which it was used, has no precise legal significance. The meaning of the term varies with the purpose to be accomplished. See Saphirv. Neustadt, supra, 177 Conn. 203. Thus, the term “must be construed in light of the intention of the parties, which is to be determined from the language used, the circumstances, the motives of the parties and the purposes they sought to accomplish.” Id.

The surrounding circumstances in this case include the physical situation of the properties, which the trial court had the opportunity to observe and which any person to whom the language is addressed reasonably would be expected to observe. The trial court determined, by reference to the covenant, and having observed the physical characteristics of the area, that the language in the covenant protecting the grantees’ “view” referred to the sight lines over the roofs of the houses below. To construe the word “view” otherwise would result in a restrictive definition that would thwart the intent of the parties. The interpretation proffered by the defendants is not wholly consistent with other provisions contained in the deed. It seems highly doubtful that the parties would have negotiated a provision for the protection of “some kind of view,” as Tabacco testified, since virtually any construction on lot 9 would have resulted in the parties retaining “some” view. It is much more consistent with the other provisions in the covenant, and with the surrounding circumstances, that the parties included the provision to protect the panoramic views to which the trial court referred in its decision. The evidence obtained by the trial court’s observation of the locus in quo was informative on the issues of what intention the parties ascribed to the language of paragraph twenty and the circumstances surrounding the execution of the deed. The court properly considered this evidence in determining the meaning and scope of paragraph twenty.

Ill

The defendants assert that the plaintiffs’ action for injunctive relief is barred by the doctrine of laches. They refer to the two occasions when, prior to the commencement of this action, the Castonguays visited lot 9, and observed on the first visit the rough staking out of the future house, and on the second, in late March, 1996, the first few pages of the construction plans. The defendants emphasize that, after construction began in May, 1996, the plaintiffs still failed to object to the size and location of the structure until the roof frames were put in place.

The defense of laches has application only when there is established unreasonable, inexcusable, and prejudicial delay in bringing suit. See Cummings v. Tripp, 204 Conn. 67, 88, 527 A.2d 230 (1987). The defense is comprised of two elements: (1) a delay that was inexcusable; and (2) a delay that prejudiced the defendant. See Berin v. Olson, 183 Conn. 337, 344, 439 A.2d 357 (1981); Danaher v. C.N. Flagg & Co., 181 Conn. 101, 107, 434 A.2d 944 (1980); Kurzatkowski v. Kurzat-kowski, 142 Conn. 680, 685, 116 A.2d 906 (1955). The burden is on the party alleging laches to establish the defense. See Cummings v. Tripp, supra, 88. Whether a plaintiff has been guilty of laches is an issue of fact for the trier, which cannot be made by an appellate court unless the subordinate facts found make such a conclusion inevitable as a matter of law. See Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 350, 579 A.2d 1054 (1990); Kurzatkowski v. Kurzatkow-ski, supra, 684.

The trial court found that this action was commenced as soon as it became apparent to the plaintiffs that the house being constructed on lot 9 was going to obstruct almost completely their panoramic view. Regarding the Castonguays’ earlier visits to lot 9, the court commented that the plaintiffs were not contractors or builders, and were not experienced in the layout of property; further, that the meetings were “quite casual with no studying of the plans [and] no finalized layout of the house.” The court also observed that the Howards never met with the defendants, and found that all plaintiffs had “every reason to rely upon the assurances of Mr. Tabacco that their view would be protected and to rely upon section 20 of the restrictions and covenants.” In rejecting the laches defense, the trial court specifically found that the plaintiffs had “notified the defendants as soon as it became evident to them that their rights were not being protected [and] that their view was going to be spoiled by the massive roof of the new house directly in their panoramic view.” We see no reason to disturb these findings.

IV

The defendants claim that the injury to them resulting from the injunction is greatly disproportionate to the injury of which the plaintiffs complain. The granting of an injunction rests within the sound discretion of the trial court and “[i]n exercising its discretion, the court . . . may consider and balance the injury complained of with that which will result from interference by injunction.” Moore v. Serafín, 163 Conn. 1, 6, 301 A.2d 238 (1972); see also Berin v. Olson, supra, 183 Conn. 343. “The relief granted must be compatible with the equities of the case.” Walton v. New Hartford, 223 Conn. 155, 167, 612 A.2d 1153 (1992); see Moore v. Serafín, supra, 5; Crabtree v. Coyle, 19 Conn. App. 208, 211, 561 A.2d 455 (1989). The action of the trial court will not be disturbed unless it constitutes an abuse of discretion. See Anderson v. Latimer Point Management Corp., supra, 208 Conn. 262; Crabtree v. Coyle, supra, 211.

In its memorandum of decision, the trial court expressly weighed the competing equities and concluded that, although some hardship would result to the individual defendants as a consequence of this injunction, it would not be greatly disproportionate to the plaintiffs’ injury. The court was informed of the expenses incurred by the defendants in the purchase of lot 9 and in the partial construction of the house. In assessing the relative hardships, the court found that the continued construction of the defendants’ home, as planned, would forever destroy the panoramic view for which the plaintiffs also had expended substantial sums of money. Regarding the adequacy of a remedy at law, the court stated that considering “the prime importance of the panoramic view, the loss of same would be permanent, irreplaceable, and a loss for which there could be no suitable compensation.” Additionally, the trial court determined that the defendants had the opportunity to conform with the declaration’s requirements and did not, although the contour of the land was such that they could have conformed with them. Regarding the construction completed to date on lot 9, and the relative equities pertaining thereto, the court found specifically that the plans and existing partial construction could still be altered to alleviate the defendants’ hardship, and that any additional costs incident thereto should more properly be absorbed by the defendants.

“When presented with a violation of a restrictive covenant, the court is obligated to enforce the covenant unless . . . the defendant can show that enforcement would be inequitable.” Gino’s Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 139, 475 A.2d 305 (1984), citing Hartford Electric Light Co. v. Levitz, 173 Conn. 15, 21, 376 A.2d 381 (1977). We recognize that “ ‘[a] strict legal right, if incompatible with the equities of the case, does not necessarily entitle one to equitable redress.’ ” Gerald Park Improvement Assn. v. Bird, 138 Conn. 232, 236, 83 A.2d 195 (1951). In this case, however, it is apparent that the trial court carefully considered, weighed and balanced the opposing equities in granting the injunction. Our review is limited to whether the court abused its discretion. The court’s memorandum clearly indicates that it undertook a thorough process of weighing all the equities, and we cannot conclude that its granting of the equitable relief requested amounted to an abuse of discretion.

V

The defendants maintain that the terms of the injunction are not sufficiently clear and definite to enable them to comply with the trial court’s order. “A judgment must so dispose of the matters in issue that the parties and other persons affected will be able to determine with reasonable certainty the extent to which then-rights and obligations have been determined.” Contegni v. Payne, supra, 18 Conn. App. 59. The terms of an injunction should have sufficient clarity and specificity to allow the parties to ascertain with reasonable certainty what is prohibited or required. See Dingwell v. Litchfield, 4 Conn. App. 621, 625, 496 A.2d 213 (1985). “Where a judgment lacks such certainty and is unintelligible, it is a nullity.” Contegni v. Payne, supra, 59.

A careful reading of the trial court’s memorandum of decision reveals that the terms of the injunction are sufficiently clear in defining the rights and obligations of these parties. The court enjoined the defendants from continuing to build the house now under construction; further, the defendants are not to build any house on lot 9 that would unduly restrict the plaintiffs’ panoramic view. The use of the term “panoramic view” is fully explained in the trial court’s decision. The mandate of this injunction, in the context of the memorandum of decision, is not unclear or of uncertain meaning. The court stated that “even now” the plans and construction might be altered, and, as the plaintiffs point out, the prohibition is essentially that no house be constructed on lot 9 unless it is so designed and located so that it would not rise above the overall levels of the roofs of houses on Old Cider Mill Road. We cannot conclude, reading the trial court’s full decision, that the judgment fails to satisfy the requirements of reasonable certainty and specificity.

The judgment is affirmed.

In this opinion the other judges concurred.

       Lornik, a defendant in the action before the trial court, is not a party to this appeal. When reference is made hereinafter to the plaintiffs, we are referring to Charles Castonguay and Susan Castonguay and Peter Howard and Lois Howard. We refer to Todd Plourde and Cheri LeClair as the defendants.

       Lot 9 is entered from Cider Mill Road by a driveway running between lots 8 and 10.

       Regarding Lomik’s written approval, the trial court’s memorandum of decision states: “The plan approved is undated and therefore not in form appropriate for recordation as required by paragraph three of the declaration of restrictions. The plot plan which is part of Exhibit A, showing the location of the Plourde/LeClair house is signed by Robert Tabacco, President of Lornik but the approval is undated.”

         The trial court also enjoined Lomik “from approving any plans or specifications and the location of any building on lot 9 that would unduly restrict the panoramic view of the plaintiffs.” Lornik has not appealed the order of the trial court.

       Here, the restrictive covenant provides that (1) the common grantor (Lomik) “desires to subject said property to certain restrictions and covenants between itself and the purchasers, their heirs and assigns ... for the benefit of said purchasers, their heirs and assigns”; (2) Lomik “does declare that the property ... is held and shall be conveyed subject to the restrictions and covenants hereafter set forth and which shall run with the land and be binding upon the said Lornik, Inc., its successors and assigns”; (3) “[a]ll plans and specification for [buildings] ... to be erected on any lot shall be subject to the written approval of Lornik, Inc., or its successors, assigns or nominee duly authorized in writing, and before the commencement of work on said premises, a set of plans and specifications shall be filed for permanent keeping with the said Lomik, Inc., its successors, assigns or nominee designated as aforesaid, for its approval or disapproval”; (4) “[a]ny buildings erected and completed for a period of six . . . months from the date of obtaining the Certificate of Occupancy for which no prior approval was received or which approval or disapproval was never recorded, against which the said Lomik, Inc., or its successors, assigns or nominees or any owner of another lot subject to these covenants has or have brought no legal action during the said period . . . shall be conclusively presumed to have received the proper approval and consent . . . required aforesaid”; (5) “[a]ny dirt or soil removed from any of said lots shall be transported and delivered by the owner of said lot at his own expense to any other lot in said tract upon the request of and at no cost to Lornik, Inc., its successors or assigns”; (6) “[t]hese covenants are made for the benefit of Lomik, Inc. and any and all persons who may own or may hereafter acquire any of said lots. These covenants are to run with the land and shall be binding on all parties and persons claiming under them until September 1, 2006, after which time said covenants shall be automatically extended for successive periods of ten . . . years unless an instrument signed by a majority of the then owners of all lots subject to these covenants has been recorded agreeing to change said covenants in whole or in part”; (7) “[l]ocations of dwelling house, garage and any other buildings or additions to buildings to be erected on any lot shall be subject to written approval of Lomik, Inc., or its successors or assigns in order to preserve the view of other lot owners.” (Emphasis added.)

       Tabacco testified as to his understanding of the intent behind, and the meaning of, the words “preserve the view” in paragraph twenty; he also testified regarding the circumstances surrounding his approval of the defendants’ plans.

       The trial court could further conclude that aperson exercising reasonable prudence, upon a reading of the covenant, and observing the land contours and the subdivision layout, would be informed that the protected view was as defined in its decision, that is, as the trial court said, “a view over the roofs of all the houses beneath the plaintiffs’ houses or to the east of the plaintiffs’ houses” while understanding that “a house built on lot nine would obstruct the lower view to some extent.” Cf. Mastonardi v. Infante, supra, 34 Conn. App. 592.

       As stated, this action was brought on June 12, 1996.

       The trial court stated that a quick view of the construction plans for the lot 9 house “might easily cause one to describe it as a story and a half,” and, “it would take an experienced builder to determine the future effect on the plaintiffs’ view.” The court also found that the plaintiffs, “relying on clause 20 and the assurances of Tabacco, would have no reason to be alarmed until the framing for the large expanse of roof had begun.”


source: Caselaw Access Project

author: O’CONNELL, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. PAUL SHARP
    (AC 15792)
    Dupont, C. J., and O’Connell and Landau, Js.

      Argued April 30
    officially released August 19, 1997

      JohnS. Aissis, special public defender, for the appellant (defendant).

      Ellen A. Jawitz, deputy assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and Timothy J. Liston, assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, J.

The defendant appeals from the judgment of conviction, following a jury trial, of larceny in the third degree as an accessory in violation of General Statutes §§ 53a-124 (a) (2) and 53a-8. The defendant claims that the trial court improperly (1) instructed the jury on the charge of accessory to larceny in the third degree, (2) denied the jury’s request to rehear testimony, and (3) excused the court reporter from a portion of the voir dire proceedings. In addition, he claims that there was insufficient evidence to convict him. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Charles Marland was the owner and operator of the Saybrook Mini Storage, a self-storage warehouse with individual units located in Old Saybrook. In January, 1992, Marland and his wife Susan inventoried several storage units that were leased to persons who had failed to pay their rent. At the defendant’s request, the defendant and his son accompanied the Marlands during the inventory. The Marlands opened unit 397, which was leased to Edward Buxton. Once inside, Charles Marland noticed that Buxton’s unit contained several guns, some of which appeared to be very old, and boxes that contained antique lead soldiers. The Marlands also noticed various gun supplies in Buxton’s unit, including balls and black powder. The defendant named some of the guns and said that one musket was worth a lot of money. The defendant told Charles Marland that he had a market for the guns and that the toy soldiers were valuable because they were in their original box and wrapping. The defendant asked Charles if he would sell the contents of Buxton’s unit to him, but Charles declined and explained that he was required by law to sell the items at a public auction scheduled for January 18, 1992.

The defendant later asked Susan Marland to persuade Charles to sell him the guns. The defendant asked Michael Fuller to retrieve the guns and related items from Buxton’s unit. Thereafter, and before the date of the auction, Michael Fuller, Peter Fuller and Elijah Pink broke into Buxton’s storage unit. They opened a wooden cabinet and took several Civil War era rifles and a box of soldiers. They also broke into a number of other units to make it look as if the units were randomly ransacked. All three men had worked for the defendant, and he and the Fullers were lifelong friends of his.

The defendant appeared at Michael Fuller’s residence the morning after the burglary to pick up the rifles and soldiers. At some later time, the defendant told Michael Fuller that he sold the rifles to a businessman in Middle-town for $1800. Michael Fuller received a share of the money from the sale of the guns. The Fullers and Pink sold the remaining items taken from other units to a junk collector.

I

A

The defendant first contends that he was deprived of his constitutional right to a fair trial because the trial court failed to instruct the jury adequately on the dual intent requirement of accessorial liability under § 53a-8, namely, (1) the intent to aid the principal and (2) the intent to commit the underlying offense. See State v. Harrison, 178 Conn. 689, 694, 425 A.2d 111 (1979). We do not agree.

During its charge to the jury, the trial court read § 53a-8 (a) in full. In its further comments on the meaning of the statute and its application to the facts of the case, the trial court did not negate the essential meaning of the statutory language. This court has expressly held that “[t]he statute itself contains the dual intent language”; State v. Foshay, 12 Conn. App. 1, 24, 530 A.2d 611 (1987); and that reading the statute satisfied the defendant’s constitutional right to a proper instruction. Id. Foshay is controlling here.

The defendant also argues that the trial court should have reiterated the intent requirement at the close of its larceny instruction. We are not persuaded that failure to repeat a proper instruction constitutes error.

B

The defendant also claims that the trial court deprived him of his constitutional right to a fair trial by failing to instruct the jury adequately that the value of the stolen property must exceed $1000. This claim is without merit.

This claim confuses the general instruction on larceny with the specific instruction on larceny in the third degree. The trial court did not include an instruction on value when it defined larceny pursuant to General Statutes § 53a-119. The court’s instruction was correct because value is not an element of larceny under § 53a-119. Following its general instruction on larceny, the trial court proceeded to instruct the jury on larceny in the third degree and correctly informed the jury that in order to find the defendant guilty of that crime, it must find that the property had a value greater than $1000.

We conclude that the trial court adequately instructed the jury on the $1000 value element of larceny in the third degree.

II

The defendant next claims that he was denied his constitutional right to a fair trial because the trial court refused to allow the jury to rehear the testimony of Peter Fuller. This claim fails on both the facts and the law.

The record shows that the jury requested a copy of Fuller’s testimony and that the trial court explained that it was not possible to furnish a transcript, but that Fuller’s testimony could be replayed or reread to them. The court further explained that because of the time it would take to locate the testimony, it would be helpful if the jury could narrow its request. If the jury could not narrow the request, the court indicated a willingness to “do the whole thing.” The jury returned to the deliberation room and a short time later, without having narrowed its original request, returned with a guilty verdict.

On the basis of this record, it is clear that the trial court did not refuse to allow the jury to rehear Fuller’s testimony. Even if the trial court had refused to allow a reading of Fuller’s testimony, the defendant would not have been entitled to a new trial. The portion of the record, if any, the trial court will allow read to the jury is wholly within the trial court’s discretion. State v. Harris, 227 Conn. 751, 769-72, 631 A.2d 309 (1993). The defendant has failed to show that the trial court abused its discretion.

Ill

The defendant next claims that he is entitled to a new trial because the individual voir dire proceedings were not transcribed. A defendant has a statutory right to have voir dire proceedings transcribed. General Statutes § 51-61 (a); Giannotti v. Warden, 26 Conn. App. 125, 128, 599 A.2d 26 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992). This statutory right, however, may be waived. Id., 131. The defendant contends that the right to the transcription of voir dire is constitutional. The state argues that although Connecticut appellate courts have not established a constitutional right to transcription of voir dire proceedings, “[a] criminal defendant has the capacity to waive many of his or her fundamental procedural rights.” State v. Patterson, 230 Conn. 385, 392, 645 A.2d 535 (1994), on appeal after remand, 236 Conn. 561, 674 A.2d 416 (1996). “[N]o procedural principle is more familiar . . . than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right.” (Internal quotation marks omitted.) Id., 393. The Supreme Court in Patterson held that a defendant may waive his right to the presence of a judge during the entire voir dire in criminal cases. Id. The state claims that a defendant may likewise waive the right to have voir dire proceedings transcribed. Without reaching the issue of whether the right to the transcription of voir dire is constitutional, we agree that the defendant waived the right to the transcription.

The transcript does indicate, and the defendant concedes, that the defendant’s trial counsel moved to excuse the court reporter during individual voir dire. Moveover, he does not indicate that any objections were made during the untranscribed proceedings. We conclude that the defendant waived his right to the transcription and, further, he has not persuaded us that any impropriety or prejudice occurred during the untran-scribed proceedings.

IV

Finally, the defendant claims that the trial court improperly denied his motions for judgment of acquittal and for a new trial because there was insufficient evidence to convict him of accessory to larceny in the third degree. Specifically, the defendant claims that there was insufficient evidence that (1) the value of the items stolen exceeded $1000 and (2) the defendant wrongfully took the property from an owner within the meaning of General Statutes § 53a-118 (a) (5).

In reviewing claims of evidentiary insufficiency, we first “construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether on the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Diaz, 237 Conn. 518, 541, 679 A.2d 902 (1996). We must determine whether, on the facts established and the inferences reasonably drawn therefrom, the jury could have reasonably concluded that the defendant was guilty of larceny in the third degree.

A

“A person is guilty of larceny in the third degree when he commits larceny as defined in section 53a-119 and . . . the value of the property or service exceeds one thousand dollars . . . .” General Statutes § 53a-124 (a) (2). The term “value” as used in this statute is defined as “the market value of the property or services at the time and place of the crime or, if such cannot be satisfactorily ascertained, the cost of replacement of the property or services within a reasonable time after the crime.” General Statutes § 53a-121 (a) (1). Our Supreme Court has interpreted the term market value as the amount that a buyer would pay as the result of fair negotiations. State v. Collette, 199 Conn. 308, 313, 507 A.2d 99 (1986). The state contends that the price for which an item is actually sold is evidence of its market value. State v. Frilando, 182 Conn. 397, 400, 438 A.2d 413 (1980).

In this case, the jury reasonably could have found that, shortly after the burglary, the defendant sold the stolen rifles to a person in Middletowu for $1800. We conclude that this evidence of the amount paid for the goods close to the time and place of the crime, was sufficient to prove that the value of the stolen items exceeded $1000.

B

The defendant next claims that the evidence was insufficient to prove that the wrongful taking, obtaining or withholding of property was from an owner within the meaning of § 53a-118 (a) (5). Section 53a-118 (a) (5) defines the term “owner” as “any person who has a right to possession superior to that of a taker, obtainer or withholder.”

The defendant argues that this term does not include property that has been abandoned by the owner. This claim is without merit. Charles Marland had custody and control over the goods, and, accordingly, he had a right superior to that of the defendant. State v. Crosswell, 223 Conn. 243, 254, 612 A.2d 1174 (1992).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-124 (a) provides in relevant part: “A person is guilty of larceny in the third degree when he commits larceny as defined in section 53a-119 and ... (2) the value of the property or service exceeds one thousand dollars . . . .”

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       See footnote 2.

       Under its supervisory powers, the Supreme Court in Patterson required that after the date of that decision, the trial court judge must be present during voir dire in criminal cases. State v. Patterson, supra, 230 Conn. 400.


author: SPEAR, J.

text:
    RAELENE CIARLELLI v. RICHARD ROMEO
    (AC 16329)
    Dupont, C. J., and Spear and Daly, Js.
    Argued June 3
    officially released August 19, 1997

      Sandra K. Gerber, for the appellant (plaintiff).

      Kevin P. Walsh, for the appellee (defendant).
   Opinion

SPEAR, J.

The plaintiff appeals from the judgment rendered following the trial court’s granting of the defendant’s motion for a directed verdict. She claims that the trial court improperly (1) precluded her expert witness from testifying as to the reasonableness of the defendant’s operation of a boat and the reasonableness of the defendant’s failure to warn her of a dangerous condition, and (2) directed a verdict in favor of the defendant on the plaintiff’s failure to warn claim contained in paragraph 7 (d) of her complaint.

The jury reasonably could have found the following facts. The defendant owned a thirty-three foot Hydra-Sport motor boat named Impatient. On July 8,1989, the plaintiff, the defendant and Emanuel DiMauro were on board the Impatient in the Long Island Sound. Their destination was a fishing location south of Montauk, New York.

En route to their destination, the boat approached an area known as the “Montauk rips.” This is an area of water off of Montauk Point where the waters of the Atlantic Ocean and Block Island Sound converge. This results in a choppy, turbulent area of water. Both the plaintiff and the defendant had been through this turbulent area on numerous occasions. While they were navigating Long Island Sound, the plaintiff was asleep in the cabin below the deck. Neither the defendant nor DiMauro warned the plaintiff that the boat was approaching the Montauk rips. As the Impatient proceeded through the rips, there “was a little bit of a chop” in the water. The plaintiff was bounced around in the cabin and was injured when an unsecured television fell off a shelf and struck her on her back.

The following procedural history is relevant to our resolution of this appeal. The defendant moved for a directed verdict at the close of the plaintiffs case, arguing that the plaintiff failed to prove a number of allegations in her complaint. The trial court directed a verdict in favor of the defendant on all of the specifications of negligence in the complaint except two: (1) whether the defendant negligently failed to secure the television set; and (2) whether the defendant negligently failed to warn the plaintiff that the television set was unsecured. The jury returned a verdict in favor of the defendant, and this appeal followed.

I

The plaintiff first claims that the trial court improperly sustained the defendant’s objection to her expert’s opinion testimony regarding the defendant’s failure to warn her that she was being exposed to a dangerous situation and the reasonableness of the defendant’s operation of the boat. We disagree.

Prior to trial, the plaintiff disclosed that “James Dias of Marine Surveyors will render an opinion and testify as to the operation of a boat with an unsecured appliance, that it is dangerous to do so.” At trial, in addition to questioning Dias in conformance with her § 220 (D) disclosure, the plaintiff sought to question him as to whether the defendant’s operation of the boat was unreasonable in general, whether he exercised proper control over the boat and whether he had a duty to warn her that they were approaching the Montauk rips. The defendant objected to this line of inquiry, arguing that it went beyond the scope of the plaintiffs disclosure.

Practice Book § 220 (D) provides that “any plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. ... If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subsection . . . such expert shall not testify if, upon motion to preclude such testimony, the court determines that the late disclosure (i) will cause undue prejudice to the moving party; or (ii) will cause undue interference with the orderly progress of trial in the case; or (iii) involved bad faith delay of disclosure by the disclosing party. . . .”

Practice Book § 220 (D) is intended to furnish a defendant with the details of a plaintiffs reliance on expert testimony in order to assist him with the preparation of his case. “The rules of discovery are designed to make a trial less of a game of blindman’s [buff] and more of a fair contest with the basic issues and facts disclosed to the fullest extent possible. ” (Internal quotation marks omitted.) Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 106, 476 A.2d 1074 (1984). A trial court may, in the exercise of its discretion, impose sanctions on a party for failure to comply with the rules of disclosure. These sanctions include the exclusion of expert testimony at trial. See Practice Book § 220 (D); Yale University School of Medicine v. McCarthy, 26 Conn. App. 497, 500, 602 A.2d 1040 (1992). “The decision to preclude a party from introducing expert testimony is within the discretion of the trial court. ... On appeal, that decision is subject only to the test of abuse of discretion. . . . The salient inquiry is whether the court could have reasonably concluded as it did.” (Citations omitted.) Yale University School of Medicine v. McCarthy, supra, 500-501.

The trial court did not specifically cite the language of Practice Book § 220 in precluding Dias’ testimony. The court did find, however, that the proposed testimony exceeded the scope of the plaintiffs disclosure, that the defendant was entitled to notice of Dias’ proposed testimony, that he would be deprived of such notice if Dias were permitted to testify as requested and that the plaintiff was attempting to bootstrap Dias’ testimony to prove her other allegations of negligence. The court then restricted Dias’ testimony to the reasonableness of operating a boat with an unsecured appliance. The plaintiff has failed to demonstrate that the trial court abused its discretion by limiting Dias’ testimony to that disclosed.

II

The plaintiff next claims that the trial court improperly directed a verdict for the defendant on the specification of negligence alleged in paragraph 7 (d) of her complaint. She claims that (1) an expert witness was not required to testify as to the applicable standard of care and (2) she introduced sufficient evidence to support her allegations. We agree.

“The rules controlling appellate review of a directed verdict are well settled. Directed verdicts are not generally favored. A trial court’s decision to direct a verdict can be upheld only when the jury could not reasonably and legally have reached any other conclusion. . . . We review a trial court’s decision to direct a verdict for the defendant by considering all of the evidence, including reasonable inferences, in the light most favorable to the plaintiff.” (Citations omitted; internal quotation marks omitted.) Mallinson v. Black, 41 Conn. App. 373, 380-81, 675 A.2d 937 (1996).

In order to recover on a theory of negligence, the plaintiff must establish that the defendant owed a duty to her and breached that duty. Leavenworth v. Mathes, 38 Conn. App. 476, 479, 661 A.2d 632 (1995). “Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual.” (Internal quotation marks omitted.) Jaworski v. Kiernan, 241 Conn. 399, 405, 696 A.2d 332 (1997). Once a duty is found to exist, whether the defendant breached that duty is a question of fact for the jmy. Id.

In Parmalee v. Hiller, 129 Conn. 489, 491, 29 A.2d 586 (1942), our Supreme Court held that a boat owner’s obligation to warn a passenger of a dangerous condition approximates a landowner’s duty to warn an invitee of a danger not reasonably to be expected by him. Here, the trial court granted the defendant’s motion for a directed verdict because it that found the plaintiff was required to prove that the defendant breached this duty through expert testimony and because she failed to sustain her burden of proof.

“While expert testimony is permitted in a great many instances, it is required only when the question involved goes beyond the field of ordinary knowledge and experience of judges and jurors.” (Emphasis added.) C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 7.16.5; see also Sun Hill Industries, Inc. v. Kraftsman Group, Inc., 27 Conn. App. 688, 697, 610 A.2d 684, cert. denied, 223 Conn. 913, 614 A.2d 831 (1992). For example, in cases involving professional competence and malpractice, expert testimony is typically required. C. Tait & J. LaPlante, supra, § 7.16.6; see also Barrett v. Danbury Hospital, 232 Conn. 242, 252, 654 A.2d 748 (1995) (expert testimony required in medical malpractice action except where negligence so gross as to be clear to layperson). Our courts have held that expert testimony is not required to prove the following: the effect of operating a gasoline station on traffic safety; Gulf Oil Corp. v. Board of Selectman, 144 Conn. 61, 65, 127 A.2d 48 (1956); that a criminal defendant is sane after he raises an insanity defense; State v. Davis, 158 Conn. 341, 356, 260 A.2d 587 (1969); that injuries sustained on the plaintiffs property were caused by the defendant’s blasting; King v. New Haven Trap Rock Co., 146 Conn. 482, 483-84, 152 A.2d 503 (1959); that the failure to erect a porch railing was negligent; Bader v. United Orthodox Synagogue, 148 Conn. 449, 454, 172 A.2d 192 (1961); that a fence erected around an area where blasting occurred was insufficient to guard against injuries; Bonczkiewicz v. Merberg Wrecking Cow., 148 Conn. 573, 580, 172 A.2d 917 (1961); and that certain materials are obscene as to minors. State v. Parsons, 28 Conn. App. 91, 101-102, 612 A.2d 73, cert. denied, 223 Conn. 920, 614 A.2d 829 (1992). In this case, we conclude that expert testimony is not required to resolve the question of whether the defendant breached his duty to warn the plaintiff of the danger presented by the Montauk rips. That factual determination is not so far outside the ordinary knowledge and experience of jurors so as to require expert testimony.

Moreover, the plaintiff adduced sufficient evidence to allow the jury reasonably to conclude that the defendant negligently failed to warn her of the danger of crossing the Montauk rips. This case is factually similar to Parmelee v. Hiller, supra, 129 Conn. 489. In Parmelee, the plaintiff was a passenger on the defendant’s boat. As the boat traveled across the Long Island Sound on calm waters, it approached “the Race, a narrow stretch of water with a varying current, frequently rough and requiring more care in navigation than the waters on either side.” Id., 490. The defendant’s captain had navigated boats through the Race on numerous occasions and was familiar with its characteristics. The plaintiff, however, had never been through the Race. Just prior to entering the rough waters, the plaintiff asked to go onto the “swordfish pulpit, a plank twelve inches wide, projecting twelve feet forward of the bow of the boat, with handrails supported by pipe made fast to the plank with lag screws.” Id. The defendant’s captain granted him permission and the plaintiff went to the pulpit. As they approached the Race, the defendant’s captain did not slow down the speed of the boat and continued to operate it in the same manner as he had while it was in calm waters. Id., 490-91. The defendant’s captain did not warn the plaintiff of the danger. When the boat encountered the rough water, it lurched and the plaintiff was thrown against the railing, the pulpit collapsed, and he was thrown into the water. Id. Based on these facts, our Supreme Court affirmed the trial court’s finding of negligence. Id., 491.

Here, the plaintiff presented the following evidence: The Impatient was traveling at a rate of ten to fifteen miles per hour. The defendant had been through the Montauk rips on numerous occasions and was familiar with its turbulent waters and, although the plaintiff had also been in that area previously, she was asleep in the cabin below deck. As the Impatient approached the turbulent waters of the Montauk rip, neither the defendant nor DiMauro warned the plaintiff of the upcoming dangerous condition. We conclude that the plaintiff adduced sufficient evidence to allow the jury reasonably and legally to conclude that the defendant breached a duty to warn the plaintiff of the dangerous condition presented by the Montauk rips.

The judgment is reversed and the case is remanded for a new trial on the failure to warn allegations of paragraph 7 (d) of the plaintiffs complaint.

In this opinion the other judges concurred.

       Paragraph 7 (d) of the plaintiffs substitute amended complaint provides: “The defendant and/or [h]is agent, servant or employee failed to warn the plaintiff that she was being exposed to a dangerous situation or to secure herself when he and/or his agent, servant or employee or both knew or should have know[n] it was unsafe not to do so.”

       The trial court made the following statements in response to the defendant’s objection: “I do not know where you are going, but it would seem to me that Mr. Dias’ testimony will have to be tailored to the disclosure. ... I think that [the defendant] is entitled to an indication where you contemplate going in view of the limitation reflected in the disclosure. . . . I do not think that you should be permitted to bootstrap the testimony of this witness insofar as it related to an occurrence involving an unsecured appliance. . . . I do not think that Mr. Dias should be permitted to say, for instance, in his expert opinion that the speed was unreasonable or that the defendant did not have proper control or that the operator of this boat was not maintaining a proper lookout. [The disclosure] says here very simply that [Dias] will render an opinion and testify as to the operation of a boat with an unsecured appliance, that it is dangerous to do so. So it seems to me that the scope here of the anticipated opinion, in fairness to the opposition, is going to have to be limited ... [to whether] it would be dangerous to operate a boat with an unsecured appliance on it”


author: LANDAU, J.

text:
    STATE OF CONNECTICUT v. DEVON SMITH
    (AC 16024)
    Dupont, C. J., and Landau and Shea, Js.
    Argued May 1
    officially released August 19, 1997

      Daniel S. Fabricant, special public defender, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Steven Preleski, assistant state’s attorney, for the appellee (state).
   Opinion

LANDAU, J.

The defendant, Devon Smith, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a. On appeal, the defendant claims that the trial court improperly (1) excluded impeachment evidence regarding the prior conviction of a state’s witness, (2) violated his right to confrontation, and (3) found the evidence sufficient to support his conviction. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On November 25, 1993, the victim, Michael Diaz, walked to Hartford Hospital with his girlfriend, Carmen Echevarria, to receive treatment. Anthony Carrier, the victim’s friend, also known as “Teaspoon,” was working at Hartford Hospital, saw Echevarria at the hospital and offered her and Diaz a ride home. Sometime later that night, Carrier, Diaz and Echevarria drove to Park Street near Putnam and Zion Streets to purchase marijuana. That area was controlled by gang members who were rivals of the gang to which Diaz belonged.

In the early morning of November 26, 1993, Carrier parked his car on Park Street across from Portilla’s Cafe. He exited the car and approached a group of men standing near the cafe. Diaz and Echevarria remained in Carrier’s car. Carrier then returned to his car accompanied by two gang members who recognized Diaz as a rival, argued with him, threatened him, and told him to leave. Diaz got out of Carrier’s car and told the group that he was no longer a part of “the gang thing.”

Diaz and Carrier started to return to the car, when someone fired several shots at Diaz, fatally wounding him. Neither Carrier nor Echevarria was able to identify the person who fired the shots. Carrier’s back was turned and Echevarria observed only that the person who fired the shots was dressed all in black.

Richard Rodriquez, a member of the defendant’s gang at the time of the shooting, had moved to Connecticut from New Jersey to live with his gang “family” at the gang’s headquarters in Hartford. He knew the defendant. He had been incarcerated shortly after moving to Hartford and, after his fellow gang members failed to post bond for him, he began to inform the Hartford police of gang activity, while outwardly maintaining his gang membership.

On November 26, 1993, prior to the shooting, Rodriquez spoke to the defendant on the porch of a Park Street building next door to Portilla’s Cafe. The defendant told Rodriquez that he was watching for rival gang members in the area. The defendant and Rodriquez then went inside the building, and Rodriquez saw the black handle of a nine millimeter gun in the defendant’s front hip pocket. Rodriquez asked if he could be on the lookout with the defendant, and the defendant agreed. The defendant also told Rodriquez that he had another gun, but Rodriquez did not see the second gun.

Rodriquez told the defendant that he would be back shortly and went to the cafe. Rodriguez heard several shots fired, exited the cafe, and saw the defendant in the middle of Park Street firing more shots in the direction of Diaz and Carrier. He saw the barrel of the gun, but not the handle, which was covered by the defendant’s hand. The weapon was the same color as the gun that the defendant had seen.

On November 27, 1993, the police found the weapon that had been used to kill Diaz. There were no fingerprints on the gun. When the police arrested the defendant, they seized his leather coat for testing. The coat did not test positive for gunpowder residue.

I

In his first claim, the defendant makes three distinct arguments. The defendant claims that the trial court (1) improperly excluded impeachment evidence regarding the prior conviction of a state witness, (2) violated his state and federal constitutional rights to present a defense and to confront the witnesses against him, and (3) violated his due process rights by inquiring into the underlying facts of the felony to determine whether it implicated veracity. We will address these arguments in turn.

A

The defendant argues that he should have been permitted to impeach Rodriquez, a critical state’s witness, by naming his prior conviction, “Terroristic Threats,” because that crime implicates veracity. At trial, the court granted the state’s motion in limine to permit reference to the prior felony only as an unnamed felony, concluding that the felony, terroristic threats, did not implicate veracity. Defense counsel objected, arguing that the felony does implicate veracity.

According to General Statutes § 52-145 (b), “[a] person’s interest in the outcome of the action or his conviction of crime may be shown for the purpose of affecting his credibility.” In addition, “[w]hen a trial court concludes that the fact of a prior felony conviction is admissible to impeach a witness’ veracity, generally both the title of the offense and the date of the conviction should be admitted before the jury. State v. Geyer, [194 Conn. 1, 8, 480 A.2d 489 (1984)]; see State v. English, 132 Conn. 573, 580, 46 A.2d 121 (1946). [Our Supreme Court has] held, however, that when the conviction at issue is not for an offense that reflects directly on the veracity of the person convicted of it, the balance used to measure admissibility of prior convictions is weighted less heavily toward admitting the prior conviction .... State v. Geyer, supra, 13. . . . To avoid unwarranted prejudice to the witness, when a party seeks to introduce evidence of a felony that does not directly bear on veracity, a trial court ordinarily should permit reference only to an unspecified crime carrying a penalty of greater than one year that occurred at a certain time and place. Id., 16.” (Citation omitted; internal quotation marks omitted.) State v. Pinnock, 220 Conn. 765, 780, 601 A.2d 521 (1992).

The trial court properly concluded that the crime of terroristic threats does not directly reflect on the convicted witness’ veracity. The defendant relies on three New Jersey cases for the proposition that the crime of terroristic threats implicates veracity and can be used for impeachment. We are unpersuaded.

“We will not disturb the trial court’s determination as to the admissibility of a prior conviction to impeach a witness absent an abuse of discretion. State v. Braswell, [194 Conn. 297, 307, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S. Ct. 793, 83 L. Ed. 2d 786 (1985)]; State v. Nardini, [187 Conn. 513, 521-22, 447 A.2d 396 (1982)].” State v. Webb, 37 Conn. App. 722, 732, 657 A.2d 711 (1995). In the present case, the trial court did not abuse its discretion in excluding the name of the offense and allowing only the fact of the witness’ previous felony conviction for purposes of impeachment. See State v. Pinnock, supra, 220 Conn. 782 (trial court properly exercised discretion in limiting impeachment of critical state’s witness to unspecified felony rather than naming offense because felony “was not directly related to his veracity”).

B

The defendant next claims that, by precluding the defendant from impeaching the state’s witness with the name of the felony, the trial court violated his right to confrontation and his right to present a defense as guaranteed under article first, § 8, of the Connecticut constitution and the sixth and fourteenth amendments to the United States constitution. The defendant claims that he is entitled to review of this unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Even if we assume arguendo that the record is adequate to review and the defendant’s claim is of constitutional magnitude, his claim fails because the alleged constitutional violation does not clearly exist.

“ ‘The defendant’s rights to confront and cross-examine witnesses and to present a defense do not give him the right to have admitted any evidence he chooses.’ State v. Negron, 221 Conn. 315, 328, 603 A.2d 1138 (1992). In the exercise of his rights, the defendant, as well as the state, must comply with the established rules of evidence and procedure. Id.; State v. Kemp, 199 Conn. 473, 479, 507 A.2d 1387 (1986).” State v. Boles, 223 Conn. 535, 550, 613 A.2d 770 (1992). As we discussed in part IA of this opinion, the trial court properly exercised its discretion by permitting the defendant to impeach the state’s witness only with an unnamed felony. Therefore, the alleged constitutional violation does not clearly exist, and the third prong of Golding has not been met.

C

The defendant next claims that he is entitled to review pursuant to State v. Golding, supra, 213 Conn. 240, because the trial court improperly inquired into the underlying facts of the terroristic threats conviction to determine whether that crime implicated veracity. The defendant asserts that the inquiry deprived him of his constitutionally guaranteed right to a fair trial pursuant to the due process clause. We are unpersuaded that the defendant’s claim is of constitutional magnitude.

The defendant argues that the facts and circumstances underlying the terroristic threats felony were unproven hearsay allegations, and, therefore, inadmissible. By agreement, the prosecutor and the defense counsel delivered a copy of the relevant documents regarding the felony to the trial court for its review. “The defendant. . . bears the responsibility of demonstrating that his claim is indeed a violation of a fundamental constitutional right. Patently nonconstitutional claims that are unpreserved at trial do not warrant special consideration simply because they bear a constitutional label.” Id., 240.

The defendant mistakenly relies on three Connecticut cases for the proposition that the trial court should not inquire into the underlying facts of a conviction. Here, the trial court looked to the underlying circumstances of the witness’ out-of-state felony conviction at the request of counsel. The inquiry was for the limited purpose of determining whether the witness’ conviction in New Jersey for terroristic threats implicated veracity. Neither the underlying facts nor the name of the offense was disclosed to the jury, and the judge prevented inquiry into the guilt or innocence of the witness. As a result, the defendant has failed to demonstrate that his claim implicates his due process right to a fair trial, and, therefore, has failed to satisfy the second prong of Golding. See footnote 5.

II

The defendant next claims that the trial court deprived him of his right to confrontation and to present a defense pursuant to article first, § 8, of the Connecticut constitution because the trial court precluded him from impeaching a state’s witness with the contradictory testimony of defense witnesses. The defendant concedes that his claim is unpreserved, but seeks appellate review pursuant to State v. Golding, supra, 213 Conn. 239-40. The defendant also seeks review under the plain error doctrine.

The defendant, during his case-in-chief, attempted to elicit information from two witnesses to use as extrinsic evidence to impeach, through contradiction, the state’s witness’ statements made during the state’s case-in-chief. The first portion of evidence concerned officer Jesus Rivera’s arrest of the state’s witness, Rodriquez, at the apartment of Aricelli Velez. The defendant sought to have Rivera testify that, contrary to Rodriquez’ testimony that he was in Velez’ apartment to retrieve certain items belonging to the gang, Rodriquez was actually there harassing Velez. The defendant also sought to have Rivera testify that Velez had told him that Rodriquez was holding her there. The state objected and the court sustained the objection, ruling that they were collateral matters.

The defendant also sought to elicit testimony from Velez that, contrary to Rodriquez’ testimony that he came to Connecticut to be with his gang “brothers” and “family,” Rodriquez actually came to Connecticut to avoid two murder charges against him in New Jersey. The state objected and the court sustained the objection ruling that the evidence was hearsay and collateral.

“Ordinarily, extrinsic evidence of prior inconsistent statements cannot be used to contradict the testimony of a witness, and this rule is strictly observed when the witness’ testimony relates to a collateral matter. State v. Burns, 173 Conn. 317, 327, 377 A.2d 1082 (1977).” State v. Colton, 227 Conn. 231, 247, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996). “A witness may not be impeached by contradicting his or her testimony as to collateral matters, that is, matters that are not directly relevant and material to the merits of the case.” State v. Negron, supra, 221 Conn. 327.

The trial court properly concluded that evidence tending to show that Rodriquez was actually in Velez’ apartment, harassing and holding her there, is collateral. This evidence was not relevant and material to the merits of the case, because its sole purpose was to contradict the witness. Similarly, evidence tending to show that Rodriquez came to Connecticut to flee murder charges in New Jersey is collateral. This fact was relevant and material only to contradict Rodriquez’ prior testimony.

“Further, the trial court has broad discretion in ruling on the admissibility of evidence and the scope of cross-examination to show contradictory statements. State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987); State v. Reed, 174 Conn. 287, 304, 386 A.2d 243 (1978). We will not disturb that discretion unless a clear abuse is demonstrated. State v. Parker, 197 Conn. 595, 601, 500 A.2d 551 (1985).” State v. Negron, supra, 221 Conn. 328. The trial court did not abuse its discretion in finding that the defense witnesses’ proffered testimony was collateral and therefore inadmissible.

“Because the court’s ruling was within its discretion, the defendant’s constitutional rights were not violated. See State v. Fullwood, 199 Conn. 281, 284, 507 A.2d 85 (1986). The defendant’s rights to confront and cross-examine witnesses and to present a defense do not give him the right to have admitted any evidence he chooses.” State v. Negron, supra, 221 Conn. 328. Therefore, even if the defendant’s claim is of a constitutional magnitude, the defendant’s claim fails the third prong of Golding because the alleged constitutional violation did not clearly exist.

Ill

The defendant next claims that the evidence was insufficient to permit the jury to find him guilty of murder. Although the defendant failed to preserve this claim at trial, it is nonetheless entitled to review under State v. Golding, supra, 213 Conn. 233. “Our Supreme Court has stated that sufficiency of the evidence claims ‘necessarily meet the four prongs of Golding.’ State v. Adams, 225 Conn. 270, 275-76 n.3, 623 A.2d 42 (1993); see also State v. Roy, 233 Conn. 211, 212, 658 A.2d 566 (1995).” State v. Adorno, 45 Conn. App. 187, 194, 695 A.2d 6, cert. denied, 242 Conn. 904, 697 A.2d 688 (1997). The defendant argues that the evidence was insufficient because the state failed to link the defendant to the murder weapon. We disagree.

“ ‘When we are called on to review a sufficiency of the evidence claim, we impose a two part analysis. We first construe the evidence in the light most favorable to sustaining the verdict. . . . We next determine whether, from that evidence and all the reasonable inferences that flow from the evidence, a trier of fact could reasonably find that the defendant was guilty beyond a reasonable doubt. State v. Salz, [226 Conn. 20, 31, 627 A.2d 862 (1993)]; State v. Rivera, [32 Conn. App. 193, 200-201, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993)].’ State v. Reddick, 33 Conn. App. 311, 332, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994).” (Citations omitted.) State v. Ketchum, 45 Conn. App. 270, 280, 696 A.2d 987 (1997). “In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” (Internal quotation marks omitted.) State v. Jones, 44 Conn. App. 338, 342, 689 A.2d 517 (1997). “While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. State v. Castonguay, 218 Conn. 486, 507, 590 A.2d 901 (1991). If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. State v. Grant, 219 Conn. 596, 604-605, 594 A.2d 459 (1991). State v. Pinnock, [supra, 220 Conn. 771]. [W]e must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . . State v. Mejia, [233 Conn. 215, 224, 658 A.2d 571 (1995)]. . . . State v. James, 237 Conn. 390, 435-36, 678 A.2d 1338 (1996).” (Internal quotation marks omitted.) State v. Gould, 241 Conn. 1, 6-7, 695 A.2d 1022 (1997).

After reviewing the evidence, we conclude that it was sufficient to support the defendant’s conviction of murder. Rodriquez saw the black handle of a nine millimeter gun that the defendant was carrying in his hip pocket shortly before the shooting. A short time later, Rodriquez saw the defendant shooting toward Diaz, saw Diaz fall, and saw that the barrel of the gun was the same color as the gun he had seen a short time earlier.

Although there were no fingerprints on the black nine millimeter gun when the police seized it, the jury could have reasonably inferred from the evidence that it was the same gun the defendant used to shoot Diaz. The police were informed that the gang members were hiding guns in a vacant apartment near the location of the shooting. The jury could have reasonably concluded that the fingerprints were wiped clean. Additionally, the jury reasonably could have inferred that the lack of gunpowder residue on the defendant’s jacket was not exculpatory. The state laboratory criminalist who examined the coat and the detective who sent the coat for the examination believed that traces of gunpowder were unlikely to remain on the jacket for the fifteen day period between the shooting and when the jacket was seized.

Further, Victor Alejandro, a gang member, saw the defendant in an alley shortly after the shooting when the police officers were investigating the shooting. Alejandro saw the defendant walk up to a gate and then step back, at which time Alejandro said, “Stay there til the cops jet, and I’ll tell you to come out.” After the officers left, the defendant went to Alejandro’s apartment and asked for a change of clothes. Although there was no testimony that the defendant changed into the jeans that Alejandro provided, the jury could have reasonably inferred that the defendant was attempting to change his appearance.

After construing the evidence in the light most favorable to sustaining the verdict, we conclude that, the jury could have reasonably found that the defendant was guilty beyond a reasonable doubt. The defendant’s claim that the evidence was insufficient is, therefore, without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

       New Jersey Statutes Annotated §2C:12-3 (a) (West 1995) proscribes terroristic threats as follows: “A person is guilty of a crime of the third degree if he threatens to commit any crime of violence with purpose to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience.”

       In State v. Battle, 209 N. J. Super. 255, 257, 507 A.2d 297 (1986), and State v. Pyron, 202 N. J. Super. 502, 503, 495 A.2d 467 (1985), the Appellate Division of the Superior Court of New Jersey held only that a terroristic threats crime merges with a robbery crime when the threat is “incidental” to the robbery. In State v. Logan, 262 N.J. Super. 128, 620 A.2d 431 (1993), the Appellate Division affirmed the trial court’s decision to allow the prosecution to impeach the defendant with his prior convictions of burglary, theft and terroristic threats without any legal analysis. The Appellate Division merely stated that the defendant’s claim was “clearly without merit.” Id., 130. Therefore, the trial court, in its discretion, may have permitted impeachment using only the fact of conviction and not the title of the offense.

       Understate v. Golding, supra, 213 Conn. 239-40, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violaüon of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.)

       U.S. Const., amend. XIV.

       The prosecutor received, in facsimile form, Rodriquez’ indictment, and a sheet indicating the disposition, a copy of the terroristic threats statute, and a copy of the incident report completed by police in New Jersey

       During the recess, the judge reviewed the documents, and, after the recess, the following colloquy took place:
      “[Prosecutor]: My point is that while the—first of all, while his criminal printout from New Jersey might say ‘intimidation,’ that’s actually incorrect. It appears he was convicted of some sort of a threatening charge, terroristic threatening. And upon my review of the report, it appears to me that this would be akin in Connecticut to a threatening statute, and I don’t feel that it’s a crime for which he should be impeached, particularly in view of the connotation of the word ‘intimidation’ on his—on his New Jersey printout is, in my view, a—first of all, not accurate and, second, just very prejudicial if that were to be used. . . .
      “[Defense Counsel]: Your Honor, I don’t think I’m in a position to argue whether or not New Jersey’s characterization in its document of the crime of intimidation is inaccurate. Also, according to the document [the prosecutor] gave me, the last page of the document is titled ‘Additional Details of Offense, Progress of Investigation’ etc. If the court has had an opportunity to read that page, it would appear that the underlying facts support what we in Connecticut would consider a robbery, an armed robbery. Therefore, since larceny is a component of robbery and larceny goes to veracity, I would submit that the named felony should be admitted.”

       In Banach v. Bohinski, 107 Conn. 156, 158, 139 A. 688 (1927), the court excluded documents “on the ground that, because of incompleteness and lack of authentication, they did not constitute admissible records.” In this case, unlike in Banach, no one attempted to admit the documents as admissible records. In Hall v. Brown, 30 Conn. 551 (1862), and Spiro v. Nitkin, 72 Conn. 202, 44 A. 13 (1899), the court held that only the fact or record of conviction should be used by the trial court, thereby preventing a trial on the question of guilt. In the present case, only the fact of conviction was used to impeach the witness. The court avoided a trial on the question of guilt and used the underlying circumstances only to make a threshold determination as to whether the out-of-state felony implicated veracity. See C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 3.5.8, p. 59 (“preliminary questions of fact are properly decided by the court”).

       See footnote 5.

       See Practice Book § 4061.

       The defendant also claims that he is entitled to plain error review pursuant to Practice Book § 4061. “It is . . . well established that plain error 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. Wright, 207 Conn. 276, 288-89, 542 A.2d 299 (1988); State v.Miller, [supra, 202 Conn. 469].” (Internal quotation marks omitted.) State v. Boles, supra, 223 Conn. 551. Since we conclude that there was no evidentiary error, there was also no obvious error that affected the proceedings.


text:
    JOSE VEGA v. WALTSCO, INC., ET AL.
    (AC 16115)
    Dupont, C. J., and O’Connell and Schaller, Js.

      Argued March 20
    officially released August 19, 1997

      Stephen P. Bertucio, for the appellant (plaintiff).

      Angelo Paul Sevarino, for the appellees (defendants).
   Opinion

O’CONNELL, J.

The plaintiff appeals from the decision of the workers’ compensation review board (review board) dismissing his appeal from the finding and award of the workers’ compensation commissioner for the second district (commissioner). On appeal to this court, the plaintiff contends that the review board improperly held that sending notice of a decision to a party commences the running of the appeal period even though a notice is not concurrently sent to the party’s attorney. We affirm the decision of the review board.

The record discloses the following facts. On September 15, 1988, the plaintiff suffered a back injury in the course of his employment with the defendant Waltsco, Inc. (Waltsco). On November 27, 1989, the plaintiff entered into a voluntary agreement concerning workers’ compensation benefits with Waltsco and with Waitsco’s insurer, the defendant Rollins Hudig Hall. The plaintiff subsequently developed a psychiatric disorder that he claims resulted from his previous injury. On January 25, 1994, a formal hearing was held by the commissioner on the issue of whether the psychiatric disorder was causally related to the initial back injury. That hearing resulted in the finding and award that is the subject of this appeal.

On May 26,1994, notice of the award was sent to the plaintiff, but notice was not sent to his attorney. His attorney learned of the decision on June 3, 1994, as a result of a telephone inquiry to the commissioner’s office. As a consequence, a facsimile of the notice was sent by the commissioner to the plaintiffs attorney on June 3, 1996. On June 9, 1994, the plaintiff appealed to the review board. The review board dismissed the appeal on the ground that it was not timely filed. The review board lacks subject matter jurisdiction to consider the merits of an untimely appeal. Freeman v. Hull Die & Print, Inc., 39 Conn. App. 717, 720, 667 A.2d 76 (1995).

“Ordinarily we give great deference to the construction given a statute by the agency charged with its enforcement.” State Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 718, 546 A.2d 830 (1988). This policy, however, does not apply to an issue that has not previously been subjected to judicial scrutiny. Id. Because the courts have not ruled on the question now before us, the policy of special deference does not apply here.

The relevant portion of General Statutes § 31-301 (a) provides: “At any time within ten days after the entry of an award by the commissioner . . . either party may appeal therefrom to the Compensation Review Board by filing in the office of the commissioner . . . an appeal petition .... The commissioner within three days thereafter shall mail ... a copy thereof to the adverse party or parties.” (Emphasis added.) Case law requires not merely the entry of the commissioner’s award, but also the sending of notice thereof to the parties. It is the sending of notice, and not the receipt thereof, that starts the appeal period running. Conaci v. Hartford Hospital, 36 Conn. App. 298, 301, 650 A.2d 613 (1994). It is undisputed that timely notice of the commissioner’s award was sent to the plaintiff and that no appeal was taken within ten days thereof.

Case law states that “the ten day period begins to run on the day on which the party wanting to appeal is sent meaningful notice of the commissioner’s decision.” (Emphasis added.) Id., 303. Section 31-301 (a) provides that “either party may appeal ... to the Compensation Review Board . . . .” (Emphasis added.) Thus, the case law and statute both clearly and unambiguously require notice to parties and appeals by parties. The plaintiff does not furnish any authority to the effect that “party” and “party’s attorney” are synonymous.

The plaintiff erroneously assumes that the procedure by which a lawsuit is handled in the court system applies in workers’ compensation matters. General Statutes § 51-53 establishes the procedure for civil actions pending in court and expressly requires that notice of judicial decisions shall be given to “counsel.” The Workers’ Compensation Act, General Statutes § 31-275 et seq., could have contained a similar provision but does not. We must interpret a statute as written. “Our fundamental objective when construing a statute ‘is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and the circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.’ ” Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 295, 695 A.2d 1051 (1997).

The statute regulating court procedure was already in effect when the legislature enacted the statute pertaining to workers’ compensation hearings. The legislature is presumed to consider existing legislation when it enacts a new law. Id. Thus, the canons of statutory construction lead us to the conclusion that the legislature intended that notice of workers’ compensation matters be sent directly to parties and not to counsel.

Practice Book § 398 implements § 51-53 by providing that, in matters pending in court, the “clerk shall give the notice to the attorneys of record and pro se parties” of judicial decisions. (Emphasis added.) The Superior Court judges have inherent power to make rules governing procedure in the courts. The judges exercise that power by enacting rules of practice that are expressly limited to governing practice and procedure in the Superior Court. Nowhere in those rules do the judges purport to extend their rule-making authority to procedures before administrative agencies.

Accordingly, that portion of the rules of practice pertaining to filing of appearances and directing notices and pleadings to counsel of record does not pertain to workers’ compensation proceedings. The Workers’ Compensation Act created a statutory agency that established its own procedures for hearings. See Regs., Conn. State Agencies § 38a-8-52; and for appeals to the review board. See General Statutes § 31-301 (a); Regs., Conn. State Agencies § 38a-8-67. It is perhaps understandable that an attorney, accustomed to the court procedure, might be lulled into expecting that the same rubrics will be followed in administrative and quasi-judicial agencies. Should these court procedures be relied on in an agency proceeding, however, it would be done at counsel’s peril.

Moreover, the policy underlying the workers’ compensation laws is to help the injured worker obtain swift compensation for his grievances without the complexities of a full scale lawsuit. See Kinney v. State, 213 Conn. 54, 58-59, 566 A.2d 670 (1989). That policy is furthered by sending notice of workers’ compensation findings and awards directly to the injured parties involved.

The plaintiff also mistakenly relies on the phrase “meaningful notice” to argue that the term “meaningful” modifies the word “party” and describes to whom notice must be sent. Specifically, the plaintiff asserts that notice is not meaningful unless it is sent not only to the aggrieved party, but also to the party’s attorney. We can find no law to support this contention. The Conaci court, in its holding, recognized that it is not enough for the commissioner to enter an award for the appeal period to start running; sending notice to the aggrieved party is also necessary. Thus, the phrase meaningful notice, as used by that court, described the content of notice that is required to inform adequately the aggrieved party of the commissioner’s findings. Meaningful notice gives the aggrieved party sufficient information to make a knowledgeable decision as to the next step in the litigation process.

The review board held that “[t]he fact that [the plaintiff] hired an attorney did not nullify his status as the claimant and as a valid receiver of notice in his workers’ compensation case. . . . [T]he appeal period began to run on May 26, 1994, when notice of the decision was sent to the [plaintiff] and that said period expired before the petition for review was filed. Accordingly, [the review board] lacks jurisdiction to consider the appeal further.” We agree.

We recognize that workers’ compensation practice has become more complex and that the reality of the system is that many more attorneys are now involved in the system than had been envisioned by the founders of the system. Perhaps the time has come for introduction of a more formal procedure of appearance, pleadings and notice. If that is to be done, however, it must be done by the legislature. This court must construe the statute as it finds it without reference to whether we feel that the law might be improved by the inclusion of other provisions. Houston v. Warden, 169 Conn. 247, 252, 363 A.2d 121 (1975). “It is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result. That is the function of the legislature.”(Intemal quotation marks omitted.) State v. Hanson, 210 Conn. 519, 529, 556 A.2d 1007 (1989).

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       General Statutes § 51-53 (a) provides in relevant part: “Whenever any court . . . makes or renders any decision, order, decree, denial or ruling, unless it is made or rendered in the presence of counsel in the matter, the clerk of the court shall immediately notify counsel, in writing, of the decision, order, decree, denial or ruling.” (Emphasis added.)

       Practice Book § 398 provides: “The clerk shall give notice to the attorneys of record and pro se parties unless otherwise provided by statute or these rules, of all judgments, nonsuits, defaults, decisions, orders and rulings unless made in their presence. The clerk shall record in the court file the date of the issuance of the notice.”

       See W. Maltbie, “The Rule Making Power of the Judges,” Practice Book (1951), pp. xi-xvii; R. Kay, “The Rule Making Authority and Separation of Powers in Connecticut,” 8 Conn. L. Rev. 1 (1975).

       Practice Book § 1 provides: “The rules for the superior court govern the practice and procedure in the superior court in all actions of a civil nature, whether cognizable as cases at law, in equity or otherwise, in all criminal proceedings and in all proceedings on juvenile matters. These rules also relate to the-admission, qualifications, practice and removal of attorneys.” (Emphasis added.)

       After the Appellate Court has obtained jurisdiction through a properly taken appeal, rules of the court apply to the processing of the appeal in the court system. See Practice Book §§ 4165 through 4165.6.

       See Conaci v. Hartford Hospital, supra, 36 Conn. App. 303, which states that “the ten day period begins to run on the day on which the party wanting to appeal is sent meaningful notice of the commissioner’s decision.”