text:
    STATE OF CONNECTICUT v. REYNALDO ARROYO
    (AC 28044)
    Schaller, DiPentima and Gruendel, Js.

      Argued April 19
    officially released October 9, 2007

      Andrew S. Liskov, special public defender, for the appellant (defendant).

      Bruce R. Lockwood, assistant state’s attorney, with whom, on the brief, were Timothy J. Liston, state’s attorney, and Maureen Platt, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Reynaldo Arroyo, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) and 53a-48, and larceny in the fifth degree in violation of General Statutes §§ 53a-125a (a) and 53a-119. On appeal, the defendant claims that the trial court improperly denied (1) his request for a special credibility instruction to the jury concerning the testimony of two jailhouse informants, (2) his requested jury instruction on DNA evidence and (3) his motion for a judgment of acquittal. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. On the afternoon of March 28,2001, the defendant asked his neighbor if he could borrow money, stating that he would pay the money back after he went on “a mission. ” Later that evening, the defendant and Richmond Perry drove to Mike’s Package Store in Middlefield. At the counter, an argument ensued between the defendant and the owner of the store, Edmund Caruso, over the amount of change the defendant received from his purchase. The argument escalated, and the defendant pulled out a handgun and jumped over the counter. The defendant pushed Caruso, who then sprayed Mace at both the defendant and Perry. During the altercation, Caruso was shot several times and subsequently died as a result of his injuries. Following the shooting, the defendant and Perry fled from the scene with the cash register. The defendant was arrested several weeks later.

The defendant was charged with felony murder, murder, robbery in the first degree, larceny in the fifth degree and conspiracy to commit robbery in the first degree. The jury found him guilty of felony murder, larceny in the fifth degree and conspiracy to commit robbery in the first degree and not guilty of the other charges. The court imposed a total effective sentence of sixty years incarceration. This appeal followed. Additional facts will be set forth where necessary.

I

The defendant first claims that the court improperly denied his request for a special credibility instruction concerning the testimony of two jailhouse informants. He further maintains that the impropriety was harmful and deprived him of his due process right to a fair trial. The defendant argues that because the jailhouse informants had hoped for and anticipated some benefit and were motivated by self-interest, the rule articulated by our Supreme Court in State v. Patterson, 276 Conn. 452, 886 A.2d 777 (2005), applies. We are not persuaded.

The following additional facts and procedural history are necessary for our resolution of this issue. At trial, the state presented the testimony of Thomas Moran and Ronald Avery. While awaiting their trials, Moran and Avery shared a courthouse lockup cell with the defendant. Both Moran and Avery testified that while in the lockup, on different occasions, the defendant confessed to them that he and Perry had robbed the package store and had shot Caruso.

Prior to his conversations with the defendant in the lockup, Moran had known the defendant and had lived with him for a short period of time earlier that year. Moran testified that although he had an extensive criminal record, he did not “believe in violence” and was testifying because “it was the right thing to do.” The jury heard evidence that Moran had attempted to use the information three different times in an effort to negotiate an agreement with the state, even though from the beginning, he was told, “you’ll get nothing.” Moran’s attempts to obtain benefits in exchange for his cooperation were futile.

Avery met the defendant for the first time while in the lockup at the Norwich courthouse. Avery testified that he did not believe the defendant initially, but decided to come forth with the information after seeing the incident reported on the news. Avery testified that he thought there would be a monetary reward for the information, and, furthermore, he had hoped to use the information to “get some play” on his case.

Prior to the conclusion of the trial, the defendant requested that the judge instruct the jury that it should weigh, examine and view Moran’s and Avery’s testimony with great caution, care and scrutiny to determine whether the testimony had been affected by bias or prejudice against the defendant, and to consider whether Moran and Avery testified to serve their own self-interest because they believed or hoped that they would benefit by falsely implicating the defendant.

The court denied the defendant’s request but instructed the jury to consider the motives of any witness and the credibility of his or her testimony, taking into account all the evidence as well as any inconsistencies in the witness’ testimony and whether the witness had an interest in the outcome of the trial or any bias or prejudice toward any party or any matter in the case.

Our standard of review for claims of instructional impropriety is well established. “The principal function of a jury charge is to assist the jury in applying the law correctly to the facts which [it] might find to be established . . . .” (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 179, 920 A.2d 236 (2007). “[Individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rule of law.” (Internal quotation marks omitted.) State v. Lopez, 280 Conn. 779, 822, 911 A.2d 1099 (2007).

“Generally, a defendant is not entitled to an instruction singling out any of the state’s witnesses and highlighting his or her possible motive for testifying falsely.” State v. Ortiz, 252 Conn. 533, 561, 747 A.2d 487 (2000). Prior to the Patterson case, our jurisprudence recognized two exceptions to this general rule: the complaining witness exception; State v. Cooper, 182 Conn. 207, 211-12, 438 A.2d 418 (1980); and the accomplice witness exception. State v. Shindell, 195 Conn. 128, 142, 486 A.2d 637 (1985). In Patterson, on which the defendant relies, our Supreme Court set forth a third exception for the testimony of jailhouse informants. State v. Patterson, supra, 276 Conn. 469-71. “We agree with the defendant that an informant who has been promised a benefit by the state in return for his or her testimony has a powerful incentive, fueled by self-interest, to implicate falsely the accused. Consequently, the testimony of such an informant, like that of an accomplice, is inevitably suspect. . . . Because the testimony of an informant who expects to receive a benefit from the state in exchange for his or her cooperation is no less suspect than the testimony of an accomplice who expects leniency from the state, we conclude that the defendant was entitled to an instruction substantially in accord with the one that he had sought.” (Citations omitted; emphasis added.) Id., 469-70.

We conclude that Patterson does not apply in this case. In Patterson, police officers contacted the jailhouse informant two days before the defendant’s trial to inquire whether the defendant had made any incriminating statements to him while he and the defendant were cellmates. Id., 465. The informant sought and was promised a two year reduction in his sentence, a favorable recommendation in his pending charges, assistance in obtaining early parole, transfer to another prison and restoration of his visitation privileges for his cooperation. Id. Following Patterson, we agreed with the state’s concession in State v. Slater, 98 Conn. App. 288, 309 & n.13, 908 A.2d 1097, cert. granted, 280 Conn. 950, 912 A.2d 484 (2006), that the court should have given the Patterson instruction requested by the defendant. In Slater, a prosecutor told the informant that during sentencing on the charges pending against the informant, the prosecutor would call to the court’s attention the fact that the informant had testified for the state. Id., 310. In the present case, perhaps Moran and Avery had hoped that they would receive some benefit when they volunteered information to the state, but our review of the record reveals no evidence that either received or had been promised any benefit or consideration. This fact distinguishes the present case from Patterson and Slater. The special credibility instruction required by Patterson is necessary only when the jailhouse informant’s incentive to he is made greater by a promise of some benefit for testifying against the defendant. State v. Patterson, supra 276 Conn. 469-70. Indeed, requiring that trial courts give a special credibility instruction every time a jailhouse informant testifies that he or she merely hoped to receive any benefit or consideration would be an over-broad application of Patterson’s narrow exception to the general rule that a defendant generally is not entitled to jury instructions that highlight any witness’ possible motive for testifying falsely. We conclude that the court properly instructed the jury with respect to the testimony of Moran and Avery.

II

The defendant next claims that the court improperly denied his requested jury instruction on DNA evidence. He further maintains that the impropriety was harmful because it prevented the jury from considering evidence relevant to his alibi defense in violation of his right to due process. We are not persuaded.

The following additional facts and procedural history are relevant to our resolution of this issue. In their investigation, the police seized three jackets belonging to the defendant that matched his description of what he was wearing on the night of the shooting. At that time, DNA testing was not performed on any of the jackets, but results from laboratory tests indicated the presence of Mace droplets on one of the jackets. During the trial, the defendant requested that the state perform a DNA test on the jacket, and DNA testing was conducted pursuant to court order. At trial, Michael Adamowicz, a lead criminalist employed by the department of public safety forensic science laboratory, testified that test results eliminated the victim, the defendant and Perry as the contributors of the DNA samples found on the jacket. On cross-examination, Adamowicz testified that DNA evidence is reliable and has been used in forensic work since the 1980s.

The defendant filed a motion on November 24, 2004, to request that the court give the following jury instruction on DNA evidence: “In this state it is the law that in any criminal proceeding DNA testing . . . shall be deemed to be a reliable scientific technique and the evidence of a DNA profile comparison may be admitted to prove or disprove the identity of any person. Accordingly you may apply any DNA evidence that has been presented in this case, in your deliberations of the guilt or innocence of the [a]ccused, including whether the results of the DNA analysis tends to exculpate the accused.” The defendant relied on the language used in General Statutes § 54-86k as the basis for this request to charge. The court denied the defendant’s requested DNA charge.

As we previously stated, “[t]he principal function of a jury charge is to assist the jury in applying the law correctly to the facts which [it] might find to be established . . . .” (Internal quotation marks omitted.) State v. Lawrence, supra, 282 Conn. 179. “[individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rule of law.” (Internal quotation marks omitted.) State v. Lopez, supra, 280 Conn. 822.

“While a request to charge that is relevant to the issues in a case and that accurately states the applicable law must be honored, a court need not tailor its charge to the precise letter of such a request. ... If a requested charge is in substance given, the court’s failure to give a charge in exact conformance with the words of the request will not constitute a ground for reversal.” (Internal quotation marks omitted.) State v. Dehaney, 261 Conn. 336, 368, 803 A.2d 267 (2002), cert. denied, 537 U.S. 1217, 123 S. Ct. 1318, 154 L. Ed. 2d 1070 (2003).

The defendant argues that the requested DNA instruction accurately stated the applicable law. He further claims that the failure to give the instruction prevented the jury from fully considering exculpating evidence that the defendant was not present at the crime scene, and, as a result, he was denied the right to establish effectively his alibi defense. The defendant relies on § 54-86k to support his argument; however, the defendant’s reliance on § 54-86k is misplaced. Section 54-86k, entitled “[a]dmissibility of results of DNA analysis,” governs the admissibility of DNA evidence at trial, not jury instructions. Therefore, the relevant inquiry is whether the instruction given by the court fairly presented the case to the jury in such a way that injustice is not done to either party under the established rule of law. See State v. Lopez, supra, 280 Conn. 822.

In the present case, DNA evidence pertaining to the jacket was admitted into evidence and was presented to the jury through Adamowicz’ testimony. Before submitting the case to the jury, the court gave the following instruction: “You may draw reasonable inferences from the established facts in this case. The inferences which you draw, however, must not be from a guess upon the evidence, but they must be from a fact or facts which the evidence has established. . . . The inferences which you draw must be logical and reasonable, and any facts whether inferred or proven directly which are essential to proof of an element of the crimes charged must be proved beyond a reasonable doubt.

“Identification is a question of fact for you to decide, taking into consideration all the evidence that you have seen and heard in the course of the trial. . . . [T]he state must prove beyond a reasonable doubt that the defendant is the person who committed the crimes charged. ... If the state fails to prove beyond a reasonable doubt that the defendant was the person who committed any of the crimes charged, you must find him not guilty. . . . Let me talk now about alibi. The defendant has presented what is commonly called an alibi defense. This is a rebuttal by the defendant of the state’s attempt to prove that he was present at the scene of the crime and committed or participated in the acts charged. . . . The alibi evidence that the defendant has placed before you seeks to convince you that he was elsewhere at the time and therefore could not possibly have committed the acts charged. That is a proper claim for him to make . . . and you should have no prejudice against it. . . . Whether you believe that a defendant was or was not present and therefore could or could not have done what he has been charged with doing is for you to decide along . . . with all the other facts in this case. ... I want to make this clear to you: the burden which rests upon the state to prove the accused guilty of the crimes charged beyond a reasonable doubt necessarily involves proof that he was present at the scene of the crime when it was committed. Keep in mind [that] a defendant does not have to prove his claim that he was elsewhere. . . . [I]t is sufficient if in considering all the evidence, there arises in your minds a reasonable doubt as to his presence at the scene of the crime when it was committed. If you have such a doubt, then the defendant is entitled to be not guilty of the crimes charged.”

Although the court did not instruct specifically on the validity of DNA evidence, the court did instruct the jury to consider all testimony and exhibits admitted into evidence and, specifically, to determine questions of identification relating to the defendant’s alibi defense. We therefore conclude that the court’s instruction was proper because it was correct in law, adapted to the issues of the case and sufficient to guide the jury in its deliberation and presented the case to the jury in such a way that injustice was not done to either party.

Ill

The defendant’s final claim is that the court improperly denied his motion for a judgment of acquittal. Specifically, he argues that the jury verdict on the charges of felony murder and robbery in the first degree is legally inconsistent because he was acquitted of the crime of robbery in the first degree, which he claims was the predicate felony for the felony murder charge. The defendant requests that we reverse the judgment of conviction on that count and remand the case with direction to render judgment of acquittal. We are not persuaded.

The following additional facts and procedural history are relevant to our resolution of this issue. The state’s fourth substitute information was filed on December 7, 2004, and set forth five counts. The first count of the information charged that the defendant and Perry committed felony murder in violation of § 53a-54c. The state alleged that on or about March 28, 2001, between 7:30 and 8:30 p.m., the defendant and Perry “did commit a robbery [of Mike’s Package Store] and in the course of and in furtherance of such crime, the [defendant] or another participant, to wit: Richmond Perry, did cause the death of a person other than one of the participants, namely: Edmund Caruso . . . .”

In the third count of the information, the state charged the defendant with robbery in the first degree in violation of § 53a-134 (a) (2). The state alleged that the defendant “did commit a robbery of Edmund Caruso, and in the course of the commission of the robbery, the [defendant] was armed with a deadly weapon, to wit: a 9mm pistol . . . .”

The jury found the defendant guilty of felony murder and not guilty of robbery in the first degree. Prior to sentencing, the defendant filed a motion for a judgment of acquittal, which the court denied.

“In reviewing the denial of a motion for judgment of acquittal ... we determine whether, from all of the evidence and the reasonable inferences drawn therefrom, the jury reasonably could have concluded that the defendant was guilty beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Green, 81 Conn. App. 152, 155, 838 A.2d 1030, cert. denied, 268 Conn. 909, 845 A.2d 413 (2004). “While an inconsistent verdict is not objectionable in itself, its inconsistency may be considered insofar as it supports a claim that the jury’s conclusion was not reasonably and logically reached.” State v. Manning, 162 Conn. 112, 123, 291 A.2d 750 (1971).

We begin by stating the applicable legal principles. “The issue of legal inconsistency typically arises when a defendant is convicted of two offenses that contain contradictory elements. Such verdicts are legally inconsistent if the existence of the essential elements for one offense negates the existence of the essential elements for another offense of which the defendant also stands convicted. . . . [T]he defendant was convicted of one offense and acquitted of the other. [Because the court is] not dealing with a situation in which the defendant is convicted of two offenses, and one conviction negates the other, the verdicts are not legally inconsistent in the usual sense. . . .

“[WJhere the inconsistent verdicts claim involves a simultaneous conviction and acquittal on different offenses, the court, in testing the verdict of guilty for inconsistency as a matter of law, is necessarily limited to an examination of the offense charged in the information and the verdict rendered thereon without regard to what evidence the jury had for consideration. . . . If the offenses charged contain different elements, then a conviction of one offense is not inconsistent on its face with an acquittal of the other.” (Citations omitted; internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 244, 745 A.2d 800 (2000); State v. Rudd, 62 Conn. App. 702, 709, 773 A.2d 370 (2001); State v. Soto, 59 Conn. App. 500, 504, 757 A.2d 1156, cert. denied, 254 Conn. 950, 762 A.2d 906 (2000).

Our examination of the offenses charged in the information, namely, felony murder and robbery in the first degree, leads us to conclude that they contain different elements.

We begin our analysis by setting forth the elements of felony murder. “In order to obtain a conviction for felony murder the state must prove, beyond a reasonable doubt, all the elements of the statutorily designated underlying felony, and in addition, that a death was caused in the course of and in furtherance of that felony.” (Emphasis added; internal quotation marks omitted.) State v. Lewis, 245 Conn. 779, 786, 717 A.2d 1140 (1998); State v. Kyles, 221 Conn. 643, 665, 607 A.2d 355 (1992). The underlying or predicate felony charged by the state in the present case was robbery. Robbery is defined in General Statutes § 53a-133. A person who “commits robbery as defined in Section 53a-133”; General Statutes § 53a-136 (a); “is guilty of robbery in the third degree . . . .” General Statutes § 53a-136 (a). “In order to prove the commission of a robbery, the state must prove that the defendant used or threatened the use of force in the commission of a larceny. See General Statutes § 53a-133; State v. [Crosswell], 223 Conn. 243, 250, 612 A.2d 1174 (1992). A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . . General Statutes § 53a-119. An owner means any person who has a right to possession superior to that of a taker, obtainer or withholder. General Statutes § 53a-118 (a) (5) . . . .” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Morant, 242 Conn. 666, 671, 701 A.2d 1 (1997); see also State v. Moore, 100 Conn. App. 122, 129, 917 A.2d 564 (2007).

We now set forth the elements for the crime of robbery in the first degree. “The essential elements of § 53a-134 (a) (2) . . . are that a person is guilty of robbery in the first degree when in the commission of the crime he is armed with a deadly weapon.” State v. Torres, 24 Conn. App. 316, 325, 588 A.2d 232, cert. denied, 218 Conn. 911, 591 A.2d 813 (1991); see also State v. Milledge, 8 Conn. App. 119, 123, 511 A.2d 366 (1986) (essential elements are robbery committed with deadly weapon).

It is clear that each offense contains an element that the other does not. The crime of felony murder, as charged in the present case, required the state to prove beyond a reasonable doubt that a death was caused in the course of and in furtherance of the robbery of the package store. There is no requirement that the defendant be armed with a deadly weapon. The crime of robbery in the first degree, as charged in this case, required the state to prove beyond a reasonable doubt that the defendant committed a robbery while aimed with a deadly weapon. There is no requirement that a death resulted from the commission of this crime. Thus, each offense contains different elements, and, consequently, a conviction of one is not inconsistent on its face with an acquittal on the other. See State v. DeCaro, supra, 252 Conn. 244. We conclude, therefore, that the defendant’s conviction of felony murder is not inconsistent with the acquittal of robbery in the first degree.

The defendant argues that two Supreme Court cases, State v. Morin, 180 Conn. Conn. 599, 430 A.2d 1297 (1980), and State v. Greco, 216 Conn. 282, 597 A.2d 84 (1990), support his claim of a legally inconsistent verdict. Specifically, he contends that Morin and Greco support his claim that robbery in the first degree was a lesser offense included within felony murder in this case. The state counters that Morin and Greco are distinguishable and, therefore, not applicable to the present case. We agree with the state.

In Morin, the defendant was convicted of felony murder, and the sole issue on appeal was whether the trial court improperly refused to instruct the jury on burglary in the first degree and robbery in the first degree as lesser included offenses. State v. Morin, supra, 180 Conn. 600-601. The charge of robbery in the first degree was based on the allegation that the defendant caused serious physical injury to a person who was not a participant in the crime. See General Statutes § 53a-134 (a) (l). Both the state and the defendant requested the charge for the lesser included offenses. State v. Morin, supra, 602. The court stated that “[t]he parties’ requests for an instruction on first degree burglary and robbery is more accurately characterized as a mutual acknowledgement that the allegations of the indictment supported a charge on those crimes as lesser included offenses under State v. Brown, 163 Conn. 52, 61-62, 301 A.2d 547 (1972).” State v. Morin, supra, 602 n.4. The court then applied the four part test set forth in State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980), to determine if the trial court should have given the requested instruction on the charges of burglary in the first degree and robbery in the first degree. The court, in addressing the second Whistnant factor, concluded that it was not possible to commit the greater offense of felony murder without first committing the lesser offenses of burglary in the first degree and robbery in the first degree. State v. Morin, supra, 601-602. In other words, the parties in Morin agreed that burglary in the first degree and robbery in the first degree were the underlying felonies for the crime of felony murder where the defendant was alleged to have caused serious physical injury to a person who was not a participant in the crime. In the present case, there was no such agreement between the defendant and the state. Moreover, as we previously noted, it was possible for the defendant in the present case to commit felony murder and not to commit robbery in the first degree. We therefore agree with the state that the defendant’s reliance on Morin is misplaced.

In Greco, the defendant pleaded guilty pursuant to the Alford doctrine to felony murder, robbery in the first degree and burglary in the first degree. State v. Greco, supra, 216 Conn. 283-85. On appeal, the defendant claimed that the double jeopardy clause of the fifth amendment to the United States constitution prevented the state from punishing him for robbery in the first degree, burglary in the first degree, and felony murder. Id., 287-88. The question before the Greco court, therefore, was “whether robbery in the first degree, burglary in the first degree and felony murder based on the predicate offenses of ‘robbery and burglary’ are the same offense for the purposes of double jeopardy analysis.” (Emphasis added.) Id., 291. The court determined that, under the Blockburger test, “first degree robbery and first degree burglary constitute the same offense as felony murder . . . where the felony murder count alleges ‘robbery and burglary’ as the predicate offenses.” Id. Nevertheless, it went on to conclude that on the basis of the language, structure and legislative history of the felony murder statute, “the legislature clearly intended multiple punishments for felony murder and the underlying predicate offenses of robbery and burglary.” Id., 297. The analysis conducted by the Greco court, therefore, was limited to the issue of whether the defendant’s conviction of both felony murder and robbery in the first degree violated the double jeopardy clause.

The defendant in the present case claims that the jury verdict of guilty with respect to the felony murder charge and not guilty as to the charge of robbery in the first degree was legally inconsistent. He does not claim a double jeopardy violation. As we stated previously, “[i]f the offenses charged contain different elements, then a conviction of one offense is not inconsistent on its face with an acquittal of the other.” (Internal quotation marks omitted.) State v. Rudd, supra, 62 Conn. App. 709. As set forth in the operative information filed by the state in the present case, felony murder and robbery in the first degree contain different elements. The jury’s verdict finding him guilty of felony murder and not guilty of robbery in the first degree was not inconsistent. We conclude that the court properly denied the defendant’s motion for a judgment of acquittal.

The judgment is affirmed.

In this opinion the other judges concurred.

       “ [When a] complaining witness could himself have been subject to prosecution depending only upon the veracity of his account of [the] particular criminal transaction, the court should [instruct] the jury in substantial compliance with the defendant’s request to charge to determine the credibility of that witness in the light of any motive for testifying falsely and inculpating the accused.” State v. Cooper, supra, 182 Conn. 211-12.

       “The well settled rule in this state regarding testimony of an accomplice is that where it is warranted by the evidence, it is the court’s duty to caution the jury to scrutinize carefully the testimony if the jury finds that the witness intentionally assisted in the commission, or if he assisted or aided or abetted in the commission, of the offense with which the defendant is charged.” (Emphasis in original; internal quotation marks omitted.) State v. Shindell, supra, 195 Conn. 142.

       Because the state conceded in Slater that the court improperly declined to give the credibility instruction under Patterson, the issue before this court on appeal was whether the failure to give the charge was harmful. See State v. Slater, supra, 98 Conn. App. 308-11.

       The defendant maintains that Moran was promised the same benefit as the jailhouse informant in Slater. We do not agree. In the present case, attorney Antonina McKay testified that she previously had represented Moran. She further stated that to the best of her knowledge, he did not receive any consideration for his report to the police regarding the murder of the victim. During cross-examination, she stated that she “was immediately told that the court may take judicial notice of his cooperation in an ongoing investigation at his sentencing. That was the extent, to my knowledge, of any, any type of consideration that was shown to him.” (Emphasis added.) She then indicated that, to the best of her knowledge, Moran “was not given any consideration for his statement.”
      On the basis of this record, we disagree with the defendant’s statement that Moran was promised a benefit in exchange for his statement to the police. All that can be ascertained is that Moran was told that there was a possibility that the court might consider his cooperation. In other words, there was not a direct benefit promised to Moran. We farther note that these facts are markedly different from those found in Slater, in which there was testimony from two witnesses that the informant was promised explicitly that the court would be made aware of his cooperation.
      “First, it is undisputed that the informant’s apparent motive for testifying was brought to the attention of the jury. During cross-examination, the informant testified that the state had made no promises to him concerning his testimony, and he denied that the state had indicated that it would inform the sentencing judge in his pending cases of his cooperation in the present matter. In response, the state called its inspector, James Deeley, to impeach that assertion. Deeley stated that the informant was told by the state’s attorney that he would bring his cooperation to the attention of the sentencing judge. The state also called Waterbury police Sergeant Scott Stevenson to impeach the informant’s testimony. Stevenson testified that the state’s attorney told the informant that he would bring to the attention of the sentencing court in his pending cases the fact that he testified in this case. The jury, thus, was on notice of the informant’s possible motivation for testifying on behalf of the state.” (Internal quotation marks omitted.) State v. Slater, supra, 98 Conn. App. 310. We conclude, therefore, that the facts in the present case are distinguishable from those in Slater.

       General Statutes § 54-86k (a) provides: “In any criminal proceeding, DNA (deoxyribonucleic acid) testing shall be deemed to be a reliable scientific technique and the evidence of a DNA profile comparison may be admitted to prove or disprove the identity of any person. This section shall not otherwise limit the introduction of any relevant evidence bearing upon any question at issue before the court. The court shall, regardless of the results of the DNA analysis, if any, consider such other relevant evidence of the identity of the accused as shall be admissible in evidence.”

       General Statutes § 53a-54c provides: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, aggravated sexual assault in the first degree, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than the one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (1) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (2) was not armed with a deadly weapon, or any dangerous instrument; and (3) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (4) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”

       General Statutes § 53a-134 (a) provides: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.”

       The state argues that this claim is not reviewable because our jurisprudence has recognized the principles set forth in United States v. Powell, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984), and Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 189, 76 L. Ed. 356 (1932), that claims of an inconsistent verdict are not reviewable because courts generally will not undertake inquiries into jury deliberations. State v. Cassidy, 3 Conn. App. 374, 389-90, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985). Our Supreme Court has recognized, however, that when a defendant claims that the court improperly denied a motion for a judgment of acquittal, the inconsistency of the verdict may be considered when the verdict is legally inconsistent or when the inconsistency is the basis of a claim that the jury’s conclusion was not, reasonably and logically reached. State v. DeCaro, 252 Conn. 229, 242-45, 745 A.2d 800 (2000); State v. Manning, supra, 162 Conn. 123; see also State v. Flowers, 85 Conn. App. 681, 693-95, 858 A.2d 827, rev’d on other grounds, 278 Conn. 533, 898 A.2d 789 (2006). On the other hand, a factually inconsistent verdict will not be overturned on appeal. See State v. Knight, 266 Conn. 658, 670, 835 A.2d 47 (2003); State v. DeCaro, supra, 242. Because the defendant’s claim is that the jury’s verdict was legally inconsistent, we review the claim to determine whether the jury reasonably could have concluded that he was guilty of felony murder beyond a reasonable doubt.

       In the present case, in contrast to the facts of Morin, the charge of robbery in the first degree was based on the allegation that the defendant was armed with a deadly weapon. See General Statutes § 53a-134 (a) (2).

       “[T]here is no fundamental constitutional right to a jury instruction on every lesser included offense .... Rather, the right to such an instruction is purely a matter of our common law. A defendant is entitled to an instruction on a lesser [included] offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” (Citation omitted; internal quotation marks omitted.) State v. Schultz, 100 Conn. App. 709, 718-19, 921 A.2d 595, cert. denied, 282 Conn. 926, 926 A.2d 668 (2007).

       See, e.g., State v. Greco, supra, 216 Conn. 298 n.1 (Shea, J., concurring).

       In Morin, the jury was required to find that the defendant caused serious physical injury to a person who was not a participant in the crime in order to find him guilty of robbery in the first degree.

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

         “The fifth amendment to the United States constitution provides in relevant part: No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb .... The double jeopardy clause of the fifth amendment is made applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969).” (Internal quotation marks omitted.) State v. Bletsch, 281 Conn. 5, 27, 912 A.2d 992 (2007).

        Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).

       The defendant also claims that the jury may have wrongly considered the fifth count of the applicable information, which charged him with conspiracy to commit robbery in the first degree as the predicate felony for the charge of felony murder. We find this argument to be without merit. The court instructed the jury that in order to find him guilty of felony murder, it was required to find that he committed a robbery. The court then explained to the jury the elements of robbery and larceny. At no time during its instructions on the crime of felony murder did the court mention conspiracy to commit robbery in the first degree. “Barring contrary evidence, we must presume that juries follow the instructions given them by the trial judge.” (Internal quotation marks omitted.) State v. Bell, 93 Conn. App. 650, 658, 891 A.2d 9, cert. denied, 277 Conn. 933, 896 A.2d 101 (2006); State v. Harris, 85 Conn. App. 637, 646, 858 A.2d 284, cert. denied, 272 Conn. 901, 863 A.2d 695 (2004); State v. Goodson, 84 Conn. App. 786, 818, 856 A.2d 1012, cert. denied, 271 Conn. 941, 861 A.2d 515 (2004).


source: Caselaw Access Project

author: MCDONALD, J.

license: Public Domain

text:
    MICHAEL A. YOUNG v. COMMISSIONER OF CORRECTION
    (AC 26962)
    Flynn, C. J., and Harper and McDonald, Js.
    Argued April 25
    officially released October 9, 2007

      Neal Cone, senior assistant public defender, for the appellant (petitioner).

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were Matthew C. Gedansky, state’s attorney, and James A. Kitten,
      senior assistant state’s attorney, for the appellee (respondent).
   Opinion

MCDONALD, J.

The petitioner, Michael A. Young, appeals from the judgment of the habeas court dismissing his June 10,2003 petition for a writ of habeas corpus for lack of subject matter jurisdiction. On appeal, the petitioner claims that the court improperly dismissed his petition. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our resolution of the petitioner’s appeal. The petitioner filed a petition for a writ of habeas corpus on June 10, 2003. In the petition, the petitioner challenged his January 11, 1996 sentence (January sentence) resulting from the petitioner’s having pleaded guilty on October 20,1995, to several crimes. Upon that plea, the petitioner was sentenced to three years of imprisonment, with execution of the sentence suspended after ten months, and three years of probation. In the habeas petition, the petitioner claimed that his guilty plea was coerced, his sentencing was illegal, he received ineffective assistance of counsel, he was the victim of prosecutorial impropriety and he was actually innocent.

At the start of the habeas trial on February 3, 2005, counsel for the petitioner informed the habeas court that the petitioner’s sentence, which the habeas petition challenged, had expired in November, 1997, and that the petitioner was no longer incarcerated under that sentence. After the court expressed reservations relating to the court’s ability to hear the petition, the petitioner himself informed the court that he believed the court properly could find jurisdiction. Although no testimony or other evidence was presented to the court, the petitioner stated that the challenged October, 1995 plea agreement resulted in the January sentence that was used to “enhance” a later sentence that he still was serving at the time of the habeas proceeding. Thereafter, the court, sua sponte, dismissed the petition for lack of subject matter jurisdiction. In dismissing the petition, the court noted that the petitioner’s January sentence resulting from the October, 1995 plea, which was the subject of the present habeas action, had expired. The court held that when a petitioner is no longer incarcerated pursuant to the challenged conviction, the petitioner is not in custody within the meaning of the Connecticut habeas statute. Thereafter, the court granted the subsequent petition for certification to appeal, and this appeal followed.

Before the habeas court, the petitioner argued that he was in custody on the expired January sentence on the basis of the use of the January, 1996 conviction to “enhance” a present sentence. A habeas petitioner, however, does not remain “in custody under a conviction after the sentence imposed for it has fully expired, merely because . . . that . . . conviction [had been] used to enhance [a subsequent sentence].” (Internal quotation marks omitted.) Maleng v. Cook, 490 U.S. 488, 492, 109 S. Ct. 1923, 104 L. Ed. 2d 540 (1989) (per curiam); see also McCarthy v. Commissioner of Correction, 82 Conn. App. 480, 483, 844 A.2d 920 (2004), aff'd, 274 Conn. 557, 877 A.2d 758 (2005). In this appeal, the petitioner has not pursued this argument. Instead, relying on Garlotte v. Fordice, 515 U.S. 39, 115 S. Ct. 1948, 132 L. Ed. 2d 36 (1995), the petitioner on appeal argues that because he was serving a sentence that ran consecutively to the January sentence, he remained in custody under both sentences, thereby giving the habeas court subject matter jurisdiction. In his brief on appeal, the petitioner claims that he later was convicted of other crimes that resulted in a forty-four month sentence imposed on April 11,1996, that was to run consecutively to the January sentence.

“A court has subject matter jurisdiction if it has the authority to hear a particular type of legal controversy.” (Internal quotation marks omitted.) Grant v. Commissioner of Correction, 87 Conn. App. 814, 818, 867 A.2d 145, cert. denied, 274 Conn. 918, 879 A.2d 895 (2005). “[P]ursuant to General Statutes § 52-466, a Connecticut habeas court has subject matter jurisdiction only over those cases brought by a petitioner who is legally confined or deprived of his liberty under the challenged conviction. ... A person is in custody when he is under a legal restraint.” (Citation omitted; internal quotation marks omitted.) Hastings v. Commissioner of Correction, 82 Conn. App. 600, 603, 847 A.2d 1009 (2004), appeal dismissed, 274 Conn. 555, 876 A.2d 1196 (2005).

A habeas court has subject matter jurisdiction to hear a petition for habeas corpus when the petitioner is in custody at the time that the habeas petition is filed. See Lebron v. Commissioner of Correction, 274 Conn. 507, 530, 876 A.2d 1178 (2005). “[Considerations relating to the need for finality of convictions and ease of administration . . . generally preclude a habeas petitioner from collaterally attacking expired convictions.” (Citation omitted; internal quotation marks omitted.) Lebron v. Commissioner of Correction, supra, 517, quoting Lackawanna County District Attorney v. Coss, 532 U.S. 394, 402, 121 S. Ct. 1567, 149 L. Ed. 2d 608 (2001). Thus, “once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual in custody for the purposes of a habeas attack upon it.” (Internal quotation marks omitted.) Ajadi v. Commissioner of Correction, 280 Conn. 514, 540, 911 A.2d 712 (2006).

In Garlotte v. Fordice, supra, 515 U.S. 45-46, the United States Supreme Court recognized an exception to the rule articulated in Maleng and Lebrón. This exception provides that a habeas petitioner who is serving consecutive sentences “remains in custody under all of [the] sentences until all are served . . . .” (Internal quotation marks omitted.) Ajadi v. Commissioner of Correction, supra, 280 Conn. 543. Our Supreme Court has noted that to establish subject matter jurisdiction to challenge the expired conviction under Garlotte, the petitioner must set forth facts indicating that, at the time that he filed the habeas petition, a “successful challenge to the expired conviction [would] have some appreciable effect on the amount of time that he spends in custody.” (Internal quotation marks omitted.) Id., 543 n.29; Oliphant v. Commissioner of Correction, 274 Conn. 563, 574 n.9, 877 A.2d 761 (2005). In this case, under Garlotte, the petitioner was required to show that he was incarcerated under a sentence that ran consecutively to the expired sentence and that his successful challenge would have reduced the amount of time that he spends in custody.

“As a preliminary matter, we set forth the applicable standard of review. The standard of review of a motion to dismiss is . . . well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.” (Internal quotation marks omitted.) Lebron v. Commissioner of Correction, supra, 274 Conn. 512. “The conclusions reached by the [habeas] court in its decision to dismiss the habeas petition are matters of law, subject to plenary review. . . . Thus, [w]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record.” (Internal quotation marks omitted.) Sadler v. Commissioner of Correction, 100 Conn. App. 659, 661, 918 A.2d 1033 (2007) (per curiam).

Our Supreme Court has held that the party bringing the action bears the burden of proving that the court has subject matter jurisdiction. See Fink v. Golenbock, 238 Conn. 183, 199, 680 A.2d 1243 (1996). “[W]ith regard to subject matter jurisdiction, jurisdictional facts are [f]acts showing that the matter involved in a suit constitutes a subject-matter consigned by law to the jurisdiction of that court . . . .” (Internal quotation marks omitted.) Ajadi v. Commissioner of Correction, supra, 280 Conn. 535 n.23.

The petitioner, while represented by counsel, failed to present such facts to the habeas judge on the record. It was undisputed that the petitioner’s January sentence expired in November, 1997. Also, the record does not establish that the petitioner’s present sentence was being served consecutively to the January sentence. It is well established that this court is limited in its review to matters contained within the record. “It is well settled that [t]he petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action. . . . The principle that a plaintiff may rely only upon what he has alleged is basic. ... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint. . . . While the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations ... it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised.” (Internal quotation marks omitted.) Lebron v. Commissioner of Correction, supra, 274 Conn. 519. Here, the record contains no facts demonstrating that, on June 10, 2003, the date on which the habeas petition was filed, the petitioner remained incarcerated under a sentence that ran consecutively to the January sentence and that a successful challenge to the January, 1996 conviction would have had an appreciable effect on the amount of time he would spend in custody. See Ajadi v. Commissioner of Correction, supra, 280 Conn. 543. Because we review the actions of the habeas court on the record and may not consider extraneous material later submitted directly to us, we affirm the judgment of the habeas court.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the court made no findings of fact on the record, and the parties did not seek an articulation from the court, it is clear from the transcript of the hearing and from the ruling of the court that the issue under consideration was whether the petitioner satisfied the “in custody” requirement for maintaining a habeas corpus action. From the transcript of the hearing, we are able to infer the facts on which the court’s decision appears to have been predicated. See Hickey v. Commissioner of Correction, 82 Conn. App. 25, 29 n.6, 842 A.2d 606 (2004), appeal dismissed, 274 Conn. 553, 876 A.2d 1195 (2005). “In the absence of an articulation, we may presume that the court made the necessary findings of fact.” Id.

       General Statutes § 52-466 provides in relevant part: “(a) (1) An application for a writ of habeas corpus . . . shall be made to the superior court . . . for the judicial district in which the person whose custody is in question is claimed to be illegally confined or deprived of such person’s liberty. . . .
      “(c) The writ shall be directed to some proper officer to serve and return, who shall serve the same by putting a true and attested copy of it into the hands of the person who has the custody of the body of the person who is directed to be presented upon the writ. . . .” (Emphasis added.)


author: BERDON, J.

text:
    JOHNNYCAKE MOUNTAIN ASSOCIATES v. LANA M. OCHS ET AL.
    (AC 27440)
    DiPentima, Gruendel and Berdon, Js.

      Argued May 29
    officially released October 9, 2007

      Richard P. Weinstein, with whom was Nathan A. Schatz, for the appellants-appellees (defendants).

      Derek V. Oatis, for the appellee-appellant (substitute plaintiff Linda M. Michalek).
   Opinion

BERDON, J.

The defendants, Lana M. Ochs and Joseph J. Ochs, brought this appeal from the trial court’s judgment of foreclosure on real property located at 206 Johnnycake Mountain Road in Burlington. The defendants claim that the court (1) improperly concluded that the substitute plaintiff, Linda M. Michalek, did not negligently misrepresent that the property could be used for commercial purposes without additional permits, (2) improperly applied the law of equitable estoppel, (3) abused its discretion by failing to order the remedy of rescission and (4) abused its discretion in fashioning an equitable remedy.

The plaintiff, who sold the property to the defendants and took back a purchase money mortgage on part of the property, claims on cross appeal that the court improperly found that she had made a negligent misrepresentation by failing to give full disclosure of a zoning violation on the premises. We affirm the judgment of foreclosure and, on the plaintiffs cross appeal, reverse the judgment of the trial court.

The following facts and procedural history inform our decision. The plaintiff was the owner of two adjoining pieces of property at 198 Johnnycake Mountain Road (house lot) and 206 Johnnycake Mountain Road (bam lot) in Burlington (town). The plaintiff had used the properties for approximately nine years for the purpose of training and housing horses (both her own and others’) and giving riding lessons. At the time of sale, the bam lot consisted of approximately eleven acres with several stmctures, including a bam with stalls for fourteen horses and indoor and outdoor riding areas. The adjoining parcel, the house lot, consisted of a residence on approximately six acres.

Some of the stmctures on the bam lot were situated within 100 feet of the boundary line between the lots. The town’s zoning regulations prohibit constmction of buildings for the purpose of housing livestock within 100 feet of a boundary line. When issuing building permits for these stmctures between August, 1999, and September, 2001, Charles Kirchofer, the zoning enforcement officer for the town, informed the plaintiff that although the stmctures were within 100 feet of the boundary line, it did not pose a problem because she owned the adjacent parcel. He suggested that the plaintiff could have the lot lines altered to address any potential issue that might arise if the lots were sold to two different owners. The plaintiff had a survey map drawn reflecting such changes to the lot lines, but the deeds were not altered. Prior to closing on the sale of the properties, the plaintiff informed the defendants of this potential issue with the setback requirement, but she did not disclose the remedies Kirchofer had suggested or the existence of the map she had commissioned.

No certificates of occupancy or special use permits were ever issued for any stmctures on the bam lot. As of the time of trial, the town had no record of zoning noncompliance complaints being filed against the property, and it had not issued notices of violation or any cease and desist orders regarding the structures on or use of the property.

Subsequently, the plaintiff sold both parcels to the defendants. The defendants, who lived approximately one mile from the properties, made numerous visits to the site and held meetings with the plaintiff prior to the sale. The parties originally executed one contract for the sale of both parcels, but later, in order to accommodate the defendants, restructured the transaction so that there were separate contracts for the sale of each lot. In so doing, the overall purchase price was divided between the parcels on the basis of considerations other than the respective value of each parcel. The defendants purchased the bam lot, the subject of this action, on January 31,2003, for $430,000. The plaintiff provided financing for the transfer in the form of a purchase money mortgage in the amount of $350,000. At the closing, the defendants executed a note that called for six monthly payments of $2098.43, followed by a final balloon payment of $349,622.51.

Following the closing, the defendants continued to use the property as a horse farm with the plaintiff’s assistance. Sometime thereafter, a dispute arose between the parties that caused the plaintiff to remove her horses and to discontinue her assistance. After June, 2003, the defendants elected to stop making mortgage payments to the plaintiff. The defendants informed the plaintiff that they ceased making payments because, prior to purchase, the plaintiff had failed to disclose to them the zoning violations. In November, 2003, the defendants stopped using the property for housing and training horses belonging to others because they believed that the location of the structures constituted a zoning violation, although they continued to house their own horses on the property.

The plaintiff brought this action for foreclosure on the bam lot on November 10, 2003. In response, the defendants raised affirmative defenses. The court rendered judgment of foreclosure but made an equitable reduction in the debt owed on the mortgage note in order to bring the bam lot into compliance with the zoning regulations on the basis of its finding in favor of the defendants on their special defense that the plaintiff had made a negligent misrepresentation as to the zoning setback violation. The court denied the defendants’ request for the remedy of rescission with respect to the note and mortgage. The court rendered judgment of strict foreclosure, finding the debt to be $305,594.03 after reducing it by $113,611.12, as a result of the claimed negligent misrepresentation. The court also found the fair market value of the bam lot to be $230,000. The defendants filed this appeal from the judgment of strict foreclosure, and the plaintiff filed a cross appeal.

I

Both parties claim that the court ruled improperly on the special defense of negligent, misrepresentation. The defendants claim that the court improperly concluded that the plaintiff did not negligently misrepresent that the property could be used as a working horse farm without additional permits. On cross appeal, the plaintiff claims that the court improperly concluded that the plaintiffs description of a zoning setback violation on the premises was a negligent misrepresentation because it was incomplete.

“Our standard of review of challenges to the court’s findings of fact and legal conclusions is well established. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Savings Bank of Manchester v. Ralion Financial Services, Inc., 91 Conn. App. 386, 389, 881 A.2d 1035 (2005).

To assess the propriety of the court’s judgment, we must turn first to the nature of the common-law duty owed to the defendants by the plaintiff. See Giametti v. Inspections, Inc., 76 Conn. App. 352, 363, 824 A.2d 1 (2003). “The existence of a legal duty is a question of law for the court that is subject to our plenary review on appeal.” Id.

Our Supreme Court “has long recognized liability for negligent misrepresentation. [The court has] held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth. . . . The governing principles are set forth in similar terms in § 552 of the Restatement (Second) of Torts [1977]: One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” (Citations omitted; internal quotation marks omitted.) D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 217-18, 520 A.2d 217 (1987); see also Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 575-76, 657 A.2d 212 (1995).

Accordingly, to establish the claim of negligent misrepresentation as a defense in this foreclosure action, the defendants had to establish “(1) that the [plaintiff] made a misrepresentation of fact (2) that the [plaintiff] knew or should have known was false, and (3) that the [defendants] reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result.” Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 626, 910 A.2d 209 (2006). “Since the rule of liability ... is based upon negligence, the [plaintiff] is subject to liability if, but only if, he has failed to exercise the care or competence of a reasonable man in obtaining or communicating the information.” 3 Restatement (Second) Torts § 552, comment (e), p. 130 (1977). “Whether evidence supports a claim of . . . negligent misrepresentation is a question of fact.” (Internal quotation marks omitted.) Savings Bank of Manchester v. Ralion Financial Services, Inc., supra, 91 Conn. App. 390. As such we will review the findings of the court as to negligent misrepresentation and reverse the judgment as to that claim only if the findings are clearly erroneous. See id.

A

The defendants claim that the court improperly found that the plaintiff did not negligently misrepresent that the property could be used for commercial farming purposes. Specifically, the defendants claim that the plaintiff represented that the intended use of the premises as a working horse farm was permitted under Burlington’s zoning regulations, but, in fact, such use requires a special permit that was not obtained. The defendants also claim that the lack of a certificate of occupancy precludes use of structures on the premises as a working horse farm. The defendants are not entitled to relief from foreclosure on that ground because, even if such permits are necessary, the plaintiff had a reasonable, good faith belief that the defendants’ intended use of the premises was not in violation of any zoning regulations and did not require any additional permits.

The defendants claim that operation of a horse farm on the premises is controlled by § IV.A.4.n of the Burlington zoning regulations, which requires a special permit for “[c]ommercia! recreation uses that promote the retention of open spaces such as . . . riding academies and stables.” The plaintiff never obtained or applied for a special permit, nor was there any claim that she represented that she had such a permit. The defendants claim, however, that the absence of such a permit precludes use of the premises for the intended purpose as a horse farm, and the plaintiffs failure to inform the defendants of this problem constituted a misrepresentation on which they relied in purchasing the property and executing the mortgage note.

An equally reasonable inteipretation of the regulations is that use of the premises as a horse farm is controlled by § III.D.2, which allows farm uses on residential property. The plaintiff testified that she was unaware of the need for any special permits. The testimony of Kirchofer, the zoning enforcement officer, is consistent with this interpretation. He was familiar with the plaintiffs use of the premises, but he never raised the issue of the requirement of a special permit for the purposes that the plaintiff used the premises.

The defendants claim that an additional impediment to their use of the property as a horse farm is that no certificates of occupancy were issued for the bam and indoor riding ring on the premises. Section X.B.4.a of the Burlington zoning regulations prohibits occupancy or use of any stmcture without a certificate of occupancy. The court found that certificates of occupancy are necessary for the use of the structures on the premises. Nonetheless, no evidence was presented that the plaintiff was issued notice of noncompliance or that any action was taken by the town zoning commission. Furthermore, the defendants continued to house their own horses in the bam through the time of trial without any indication that such activity was prohibited.

In articulating its decision, the court stated that “[b]ased on the statements and actions of the zoning enforcement officer, the plaintiff had a good faith belief that she was not in violation of any regulations so long as the usage and configuration of the property retained the status quo.” To the extent that any representations were false, the plaintiff had reasonable grounds on which to believe that the zoning regulations would not inhibit the operation of the premises as a working horse farm. The zoning enforcement official issued building permits and was aware of the uses of the premises but never gave any indication that the plaintiff was not in compliance with regulations. No action was taken by the zoning commission despite its enforcement officer’s knowledge of the farming activities being conducted on the premises. The court had ample evidence from which to conclude that the plaintiff reasonably represented the premises as a working horse farm. We hold that the court’s conclusion that it was not negligent for the plaintiff implicitly to represent that no additional permits were necessary is not clearly erroneous.

B

On cross appeal, the plaintiff claims that the court improperly found that she negligently misrepresented, by omission, the nature of the zoning setback violations of stmctures on the premises. We agree.

The court found that the plaintiff orally disclosed to the defendants prior to the closing that there was a potential zoning violation because the bam on the bam lot was too close to the lot line. The court further found that the plaintiff had discussed the setback issue with Kirchofer, the zoning enforcement officer. He informed the plaintiff that although the bam was too close to the lot line, he did not consider this a violation because the adjoining lot was also owned by the plaintiff, but cautioned that if the lots were sold to two different purchasers, it could present a zoning violation. Kirchofer suggested that the plaintiff could have a survey done to change the location of the lot lines or combine the properties into one to address any potential issue that might exist regarding the location of the stmctures relative to the lot line. The court found that the plaintiff should have disclosed the full extent of the discussions she had with the zoning enforcement officer. On the basis of these findings, the court found that the defendants were induced to execute the note and mortgage through the plaintiffs failure to disclose that the potential zoning problem in the underlying real estate would frustrate the intended use of the premises as a working horse farm.

Liability for negligent misrepresentation may be placed on an individual when there has been “a failure to disclose known facts and, in addition thereto, a request or an occasion or a circumstance which imposes a duty to speak. . . . Such a duty is imposed on a party insofar as he voluntarily makes disclosure. A party who assumes to speak must make full and fair disclosure as to the matters about which he assumes to speak.” (Citations omitted; internal quotation marks omitted.) Duksa v. Middletown, 173 Conn. 124, 127, 376 A.2d 1099 (1977).

The plaintiffs failure to disclose her discussions with the zoning enforcement officer about possible remedies for a potential zoning compliance problem was not a misrepresentation by omission because she fully disclosed the potential problem. The plaintiffs reasonable understanding of her conversation with Kirchofer led her to believe that no zoning violation would occur unless the two lots were sold to different owners. She communicated this fact to the defendants. The plaintiff had no knowledge that the location of the bam would impact the defendants, who were purchasing both properties. Therefore, it was unnecessary to further disclose the discussion with Kirchofer because the remedies discussed, to the plaintiffs knowledge, did not need to be implemented by the defendants.

Further, it was not shown that the defendants suffered any detriment from reliance on the plaintiffs representations. No action has been taken by the Burlington zoning commission as to setback violations. Therefore there has been no detriment to the defendants. They are able to use the premises as a working horse farm, as represented by the plaintiff. The lack of enforcement or other action by the zoning commission is consistent with Kirchofer’s testimony that the location of the bam is not a violation because the defendants own both lots. It is also consistent with the plaintiffs representation to the defendants that no violation would occur unless the lots were sold to two different parties.

This case differs substantially from Foley v. Huntington Co., 42 Conn. App. 712, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996), in which the seller of property represented to the buyer that the number of acres being sold was sufficient to allow the operation of a nursing home. It was subsequently discovered that the acres sold were insufficient to allow the operation of a nursing home, and on the basis of that representation, the trial court upheld the jury verdict finding negligent misrepresentation. Id., 721-22. In Foley, “[t]he misrepresentation was not that a 3.74 acre parcel would meet zoning regulations, but that [the seller] would sell enough land for the operation of a nursing home.” Id., 722. Here, the plaintiff represented that the premises could be used as a working horse farm. The defendants have not shown that it cannot be used as a working horse farm. We conclude that the court’s finding of negligent misrepresentation by the plaintiff is clearly erroneous.

II

The defendants claim that the court improperly found that the plaintiff should not be equitably estopped from enforcing the note and mortgage. We disagree.

“It is well established that a foreclosure action constitutes an equitable proceeding. ... In an equitable proceeding, the trial court may examine all relevant factors to ensure that complete justice is done. . . . The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court. . . . Although we make every reasonable presumption in favor of the trial court’s action in determining whether the trial court abused its discretion, [s]uch discretion . . . should be exercised in conformity with the spirit of the law and should not impede or defeat the ends of substantial justice.” (Citations omitted; internal quotation marks omitted.) Citicorp Mortgage, Inc. v. Burgos, 227 Conn. 116, 120, 629 A.2d 410 (1993).

The doctrine of equitable estoppel is well established. “[W]here one, by his words or actions, intentionally causes another to believe in the existence of a certain state of things, and thereby induces him to act on that belief, so as injuriously to affect his previous position, he is concluded from averring a different state of things as existing at the time.” Cowles v. Bacon, 21 Conn. 451, 467 (1852). “Our Supreme Court . . . stated, in the context of an equitable estoppel claim, that [t]here are two essential elements to an estoppel: the party must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do something to his injury which he otherwise would not have done. Estoppel rests on the misleading conduct of one party to the prejudice of the other.” (Internal quotation marks omitted.) LaSalle National Bank v. Freshfield Meadows, LLC, 69 Conn. App. 824, 838, 798 A.2d 445 (2002). “Broadly speaking, the essential elements of an equitable estoppel ... as related to the party to be estopped, are: (1) conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct shall be acted upon by, or influence, the other party or other persons; and (3) knowledge, actual or constructive, of the real facts.” 28 Am. Jur. 2d 640, Estoppel and Waiver § 35 (1966).

The defendants, as discussed more fully in part I, have failed to show that the plaintiff made any false or misleading representations. Furthermore, they have not subsequently asserted the facts to be contrary to the plaintiffs original representation that the premises can be used as a working horse farm. Accordingly, the court did not abuse its discretion in concluding that equitable estoppel was an inappropriate remedy in this matter.

On the defendant’s appeal, the judgment is affirmed. On the plaintiffs cross appeal, the judgment is reversed only as to the finding of negligent misrepresentation and the case is remanded for recalculation of the debt due on the mortgage note including interest, late fees and attorney’s fees consistent with this opinion.

In this opinion the other judges concurred.

       The note and mortgage were assigned to Johnnycake Mountain Associates, the party that commenced this foreclosure action. During the pendency of this case, the note and mortgage were assigned back to Michalek, and Michalek was substituted for Johnnycake Mountain Associates as the plaintiff in this action. Unless otherwise noted, all references to the plaintiff refer to Michalek.

       The bam lot is the only property subject to foreclosure in this action.

       The court found that this division of contracts and price was done to accommodate the defendants’ desire to allocate a sufficient portion of the purchase price to the bam lot to facilitate the securing of financing for the purchase of that lot and to assist the plaintiff in expediting the purchase of another property.

       On the same date, the defendants also purchased the house lot from the plaintiff. The purchase price was $615,000, and financing for the purchase was through a commercial lender.

       Notwithstanding the defendants’ claim, the court found that the plaintiff disclosed the setback issue prior to sale of the property. The defendants point out, however, that she failed to disclose the remedy suggested by Kirchofer and the existence of the survey map she had commissioned.

       See footnote 7.

       The mortgage debt claimed due as of August 28, 2005, was $411,383.86. The court reduced the debt by $113,611.12 upon its finding that the $17,481.12 late fee on the balloon payment was unenforceable and that the defendants were entitled to credits of $15,000 to remove the riding arena and $81,130 to relocate the bam in order to comply with the 100 foot setback required by zoning regulations, leaving a total due of $297,772.74. With respect to the plaintiffs claim for attorney’s fees pursuant to the note and court costs, the court ordered that they “shall be the subject of a further hearing by the court at which time it will also accept evidence as to costs incurred by the plaintiff customary to a foreclosure action.” At a hearing on February 14, 2006, the court modified the per diem to $48.91, finding the total debt amount to be $305,594.03 as of that date. The court also awarded the plaintiff reasonable attorney’s fees of $47,500 and other expenses, noting “the voluminous pleadings that were involved in this file . . . including extensive post-trial briefs and motions.”

       The defendants argue that the court improperly found that the property could be used for commercial farming purposes. Whether the property could be used for commercial farming purposes is irrelevant to the issues raised in these appeals.

       Section IV.A.4 of the Burlington zoning regulations provides in relevant part: “The following uses, or additions thereto, may be granted by the Commission, subject to the satisfaction of requirements and standards as set forth in Section VIII. and the imposition of conditions in harmony with the general purposes of these Regulations . . . n. Commercial recreation uses that promote the retention of open space such as . . . riding academies and stables.”

       Section III.D.2 of the Burlington zoning regulations provides, under the heading “Uses Permitted in Any Zone”: “Farming provided that buildings for the purpose of growing plants, housing livestock, or housing more than 20 poultry shall be located at least 100 feet from any street or lot line.”

       The defendants ceased boarding others’ horses approximately ten months after purchasing the premises in apparent reliance on their interpretation of the special use permit provisions discussed previously.

       Section X.B.4.a of the Burlington zoning regulations provides in relevant part: “No building or structure or any addition or alteration thereto hereafter erected shall be occupied or used, in whole or in part, for any purpose until a Certificate of Occupancy shall have been issued by the Building Official.”

       In addressing this issue, the court noted that claims of innocent misrepresentation are also actionable and stated that “[wjhether the representations are characterized as negligent or innocent, the defendants have established by a preponderance of the evidence the elements of this special defense.” We treat this claim and the claim discussed in part IA as claims for negligent misrepresentation. To the extent that the court ruled on innocent misrepresentation, we hold that the defendants are not entitled to relief on that ground. “An innocent misrepresentation may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth.” Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 346, 232 A.2d 307 (1967). The plaintiff had no duty to speculate as to potential applications of zoning regulations beyond her reasonable belief in the truth of the zoning official’s statements that the location of the structures was not a violation unless the properties were sold to two different purchasers.

       The Burlington zoning regulations require that buildings used to house livestock must be at least 100 feet from any lot line. Burlington Zoning Regs., § III.D.2; see footnote 10. It is undisputed that the bam on the bam lot was within 100 feet of the house lot.
      The plaintiff reasonably understood the regulation to be inapplicable to the stmctures on the bam lot. The doctrine of merger supports her interpretation. Merger of adjacent lots so that two individual lots may be treated as a single lot for purposes of applying zoning regulations may occur where “in the absence of a merger provision where the parties intend to treat multiple lots as a single lot. . . [t]he owner’s intent under the common law to merge lots is inferred from the owner’s conduct with respect to the land and the use made of it. In order to have a merger of adjacent lots they must be under common ownership .... Merger may occur as a result of the physical acts of the property owner which show intent to abandon the separate status of two nonconforming lots, such as . . . using the two lots together as one lot.” R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 53.6, pp. 246-49, citing Marino v. Zoning Board of Appeals, 22 Conn. App. 606, 578 A.2d 165, cert. denied, 216 Conn. 817, 580 A.2d 58 (1990).

       The defendants claim that the court abused its discretion in fashioning an equitable reduction in the amount owed on the note. The court based its equitable determinations on its finding that the plaintiff had negligently misrepresented the nature of the zoning setback violation. Because we reverse the judgment of the court as to negligent misrepresentation, we need not address the claims as to the court’s equitable determinations. For the same reason, we do not address the defendants’ claims that the court improperly did not allow evidence regarding the defendants’ claim of rescission damages.

       The defendants argue that the court improperly applied the law of equitable estoppel by requiring proof that the plaintiff intended to mislead the defendants. We need not address this argument because the court found “that equitable estoppel would remain an inappropriate remedy in this matter” even if the element of intent is not required.