text:
    State of Connecticut v. Antal Torma
    (8005)
    Dupont, C. J., Foti and Lavery, Js.

      Argued January 9
    decision released May 15, 1990

      Michael K. Courtney, assistant public defender, with whom, on the brief, was Valerie J. Quinn, deputy assistant public defender, for the appellant (defendant).

      Jacqueline J. Footman, deputy assistant state’s attorney, with whom, on the brief, was Walter Flanagan, state’s attorney, and James Diamond, deputy assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while his license was under suspension, in violation of General Statutes § 14-215. The defendant claims that the trial court erred (1) in denying his motions for judgment of acquittal, (2) in failing to charge as requested, and (3) in enhancing the sentence imposed pursuant to General Statutes § 14-215 (c). We find error in the court’s sentencing.

The jury could reasonably have found the following facts. On May 20, 1988, at approximately 11:30 p.m., the defendant was operating a new black pickup truck northbound on Main Street in Danbury when he collided with another vehicle. The defendant, who concedes that he was operating a motor vehicle at that time and that he was on a public highway, produced a license, a registration and an insurance card for the investigating officer. The address listed on those documents was 20 Grandview Avenue, Danbury. A motor vehicle department check disclosed that the defendant’s driver’s license had been suspended. He was issued a summons for operating a motor vehicle while his license was under suspension and for improper passing.

The defendant first claims that the trial court erred in not granting his three motions for judgment of acquittal, each claiming that the state had produced insufficient evidence. The defendant moved for a judgment of acquittal at the close of the state’s case, at the close of his own case, and finally when the jury returned its verdict of guilty.

It is the defendant’s claim (1) that notice of suspension is required pursuant to General Statutes § 14-111 (a), (2) that the state did not and could not prove that “notice [was] forwarded by bulk certified mail,” (3) that the state must prove at least constructive delivery by certified mail, and (4) that no admissible evidence was offered on this issue.

The following facts are relevant to the disposition of this issue. The defendant knew that a notice of suspension was due to arrive in the mail because of an earlier conviction for operating a motor vehicle while under the influence of intoxicating liquor. Torma, an immigrant who had lived in the United States for three years, testified that he did not know that he was obligated by law to notify the motor vehicle department of his change of address.

The state introduced a copy of the suspension notice that had been forwarded to the defendant, and an alleged receipt for “certified bulk mail” into evidence through Sergeant John MacSweeney, an employee of the motor vehicle department. MacSweeney, who had been employed at the motor vehicle department for over eighteen years, was familiar with the system of suspending an operator’s license. He explained that, upon being notified that someone’s license has been suspended, his department sends a letter to that person’s last known address, two weeks prior to the date of suspension, so as to allow that individual an opportunity to request a hearing to stay the suspension. These notices are mailed in bulk, and the motor vehicle department retains a list that corresponds to the notices sent. The motor vehicle department calls this process “bulk certified mail.” The United States Postal Service, however, does not recognize a form of mail specifically termed “bulk certified mail.” The department’s list of notices mailed is called a receipt. It is not a postal receipt for a piece of certified mail, but it is a certificate of mailing prepared by the motor vehicle department showing that the mail was put into the United States Postal Service, and that the letters were received by the postal service. In spite of the confusion in terms, MacSweeney’s testimony sufficiently established that the notice of suspension was mailed to the defendant and that it was never returned to the motor vehicle department as unclaimed mail.

The defendant testified that he never received a suspension notice. He explained to the court that he had moved from 20 Grandview Avenue to another address during the period in question, and had not notified the motor vehicle department of his change of address. Although Torma failed to notify the motor vehicle department of his change of address, he did notify the postal service on November 23,1987. The postal notification remained in effect until June 3, 1988. The defendant’s suspension was effective as of April 30, 1988, and the operation under suspension occurred on May 20, 1988.

The defendant was charged with a violation of General Statutes § 14-215 which requires proof of three elements: (1) that the defendant operated a motor vehicle; (2) that it was operated upon a public highway; and (3) that the operation occurred while his license was under suspension by the commissioner of motor vehicle. The first and second elements of the violation have been conceded by the defendant. The third element, supsension by the commissioner, requires proof of compliance with General Statutes § 14-111 (a).

General Statutes § 14-111 (a) does not require personal service of a notice of suspension but provides that “a notice forwarded by bulk certified mail to the address of the person registered as owner or operator of any motor vehicle as shown by the records of the commissioner shall be sufficient notice to such person . . . .” The statute does not require that a defendant actually receive notice, or that a motor vehicle department receive a return receipt. Constructive notice by the motor vehicle department is all that is required. State v. Verdirome, 36 Conn. Sup. 586, 421 A.2d 563 (1980). The requirements of § 14-111 (a) were satisfied by a showing of competent evidence that notice of the suspension was mailed to the defendant at his last known address as indicated by the records of the commissioner.

Regardless of the defendant’s ignorance of the law, he remained obligated under General Statutes § 14-45 to notify the commissioner of his change of address. Further, the defendant knew that a suspension notice was being sent because of his earlier conviction. He should not have relied on the change of address form filed with the postal service to insure his receipt of that notice.

The defendant argues that the state could not comply with the requirements of § 14-111 (a) because there is no such thing as “bulk certified mail.” His argument is unpersuasive because, as we have previously discussed, the requirements of § 14-111 (a) are satisfied by mailing the notice of suspension to the defendant’s last known address, and the department’s certificate of mailing is sufficient to establish that the defendant received statutory notice of suspension.

The defendant next argues that even if § 14-111 (a) is construed to mean that notice by a certificate of bulk mailing is all the notice required, then as a matter of law the state offered no admissible evidence on that issue, We do not agree.

The state offered two documents as the sole proof of mailing, namely, a copy of the suspension notice, and the certificate of mailing. These were admitted pursuant to the business records exception to the hearsay rule, General Statutes § 52-180.

The defendant argues that MacSweeney was not a competent witness particularly as to the third foundation requirement of § 52-180, and that the documents were computer generated. There are three criteria for admission of documents under the business records exception as set forth by General Statutes § 52-180: (1) the record must be made in the regular course of business; (2) it must be the regular course of business to make such a record; and (3) the record must be made at the time of the act, transaction or event, or within a reasonable time thereafter. Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 383-84, 461 A.2d 422 (1983).

The state established all of the criteria set forth in § 52-180 through MacSweeney’s testimony. It established that such notices are maintained and sent in the regular course of motor vehicle department business and are a function of that department. Further, Mac-Sweeney testified that it is the usual course of business for the white copy to go to the driver and the pink copy to be retained in the department’s file. He also identified the certificate of mailing as a document that is kept in the usual course of business. This testimony was based on either MacSweeney’s observations or on the observations of another who, in the course of business, transmitted the information to MacSweeney. State v. Sharpe, 195 Conn. 651, 663, 491 A.2d 345 (1985). Further, MacSweeney need not have had personal knowledge of the event, because circumstances such as those that surround the mailing or production of a document affect the weight rather than the admissibility of that writing. General Statutes § 52-180 (b).

Since the defendant failed to raise the issue of computer generated documents regarding these two items at trial, we decline to review this claim now. State v. Pettersen, 17 Conn. App. 174, 185, 551 A.2d 763 (1988).

The defendant next claims that the trial court erred in failing to charge in accordance with his request to charge. The defendant concedes that the court charged in substantial accordance with his request; State v. Harrell, 199 Conn. 255, 269-70, 506 A.2d 1041 (1986); except as to the rebuttable nature of the notice required for proof of conviction. The pertinent part of the defendant’s request was as follows: “If you find that the state had notified the defendant by bulk certified mail at his last listed address as is the case here, and the defendant testifies that he did not receive notice, then the state must prove by some other evidence, beyond a reasonable doubt, that the defendant received actual notice.”

The defendant argues that since notice is an essential element to be proven, constructive notice creates a type of irrebuttable presumption that shifts the burden of proof as to an essential element of the crime in violation of the defendant’s due process rights. This argument is not persuasive.

As we have discussed previously, actual notice is not required to convict a defendant under General Statutes § 14-215. It, therefore, was not error for the trial court to refuse to charge in accordance with the defendant’s request.

The defendant’s-final claim of error alleges that the trial court erred in enhancing his sentence under General Statutes § 14-215 (c) in spite of the fact that the state did not charge him in a two-part information pursuant to Practice Book § 619. We agree.

Over the defendant’s objection, he was sentenced to nine months suspended after sixty days with probation for eighteen months.

The state concedes and we agree that a two-part information is required under our rules of practice whenever the state seeks an enhanced penalty. The purpose of this rule is to assure that the defendant is given adequate notice of the charge against him so that he may properly prepare his defense. Although a prosecution involving a two-part information requires two separate procedures, it remains a prosecution under one information. The second part of the information must be proven, however, before the enhanced penalty can be imposed. State v. LaSelva, 163 Conn. 229, 233-34, 303 A.2d 721 (1972).

There is error in part, the judgment is set aside only as to the sentence imposed and the case is remanded with direction to sentence the defendant under the provisions of General Statutes § 14-215 (b).

In this opinion the other judges concurred.

       The defendant was found not guilty of improper passing, General Statutes § 14-232 (1).

       General Statutes § 14-111 (a) provides: “No provision of this chapter shall be construed to prohibit the commissioner from suspending or revoking any registration or any operator’s license issued under the provisions of any statute relating to motor vehicles, or from suspending the right of any person to operate a motor vehicle in this state, or from suspending or revoking the right of any nonresident to operate, or the right to any operation of, any motor vehicle within this state, for any cause that he deems sufficient, with or without a hearing. Whenever any certificate of registration or any operator’s license or both are suspended or revoked, all evidence of the same shall be delivered forthwith to the commissioner or to any person authorized by him to receive the same, and the commissioner or any person authorized by him may seize such certificate of registration or operator’s license and all evidence of the same. Except as otherwise provided by law, the commissioner may cancel any such suspension or revocation and may return such certificate of registration or the operator’s license either with or without an additional fee, provided no certificate of registration or operator’s license which has been suspended for any definite term, except as provided in subsection (k) of this section, shall be returned until the term of suspension has been completed. Any appeal taken from the action of the commissioner shall not act as a stay of suspension or revocation except with his consent. No service of process shall be necessary in connection with any of the prescribed activities of the commissioner, but a notice forwarded by bulk certified mail to the address of the person registered as owner or operator of any motor vehicle as shown by the records of the commissioner shall be sufficient notice to such person that the certificate of registration or operator’s license is revoked or under suspension.”

       General Statutes § 14-45 provides that failure to notify the commissioner by a person holding a license to operate a motor vehicle of his change of address within forty-eight hours of a change constitutes an infraction.

       “[General Statutes] Sec. 14-215. operation while registration or LICENSE IS REFUSED, SUSPENDED OR REVOKED, (a) No person to whom an operator’s license has been refused, or whose operator’s license or right to operate a motor vehicle in this state has been suspended or revoked, shall operate any motor vehicle during the period of such refusal, suspension or revocation. No person shall operate or cause to be operated any motor vehicle, the registration of which has been refused, suspended or revoked, or any motor vehicle, the right to operate which has been suspended or revoked.
      “(b) Except as provided in subsection (c) of this section, any person who violates any provision of subsection (a) of this section shall be fined not less than one hundred fifty dollars nor more than two hundred dollars or imprisoned not more than ninety days or be both fined and imprisoned for the first offense, and for any subsequent offense shall be fined not less than two hundred dollars nor more than six hundred dollars or imprisoned not more than one year or be both fined and imprisoned.
      “(c) Any person who operates any motor vehicle during the period his operator’s license or right to operate a motor vehicle in this state is under suspension or revocation on account of a violation of subsection (a) of section 14-227a, subsection (d) or (f) of section 14-227b, or section 53a-56b or 53a-60d, shall be fined not less than five hundred dollars nor more than one thousand dollars and imprisoned not more than one year, thirty days of which may not be suspended or reduced in any manner.”

       The phrase “bulk certified mail” was substituted for “registered or certified mail” by Public Acts 1979, No. 79-249, § 1, and was enacted to effectuate a change in that existing law. During the Senate debate in the approval of the amendment Senator Stephen C. Casey remarked: “This is a very good proposal coming from the Transportation Committee. It is to allow the suspension notices from the Motor Vehicle Department to the drivers in the state to be sent out not by certified mail as the process is now but by bulk rate mail with a saving to the state analyzed at sixty-eight thousand dollars, Mr. President.” 22 S. Proc., Pt. 1, 1979 Sess., p. 268.

       “[General Statutes] Sec. 52-180. admissibility of business entries and photographic copies, (a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.
      “(b) The writing or record shall not be rendered inadmissible by (1) a party’s failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party’s failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility.
      “(c) Except as provided in chapter 3, if any person in the regular course of business has kept or recorded any memorandum, writing, entry, print, representation or combination thereof, of any act, transaction, occurrence or event, and in the regular course of business has caused any or all of them to be recorded, copied or reproduced by any photographic, photostatic, microfilm, microcard, miniature photographic or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless its preservation is otherwise required by statute. The reproduction, when satisfactorily identified, shall be as admissible in evidence as the original in any judicial or administrative proceeding, whether the original is in existence or not, and an enlargement or facsimile of the reproduction shall be likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of court. The introduction of a reproduced record, enlargement or facsimile shall not preclude admission of the original.
      “(d) The term ‘business’ shall include business, profession, occupation and calling of every kind.”

       Practice Book § 619 provides: “Where the information alleges, in addition to the principal offense charged, a former conviction or convictions, such information shall be in two separate parts, each signed by the prosecuting authority. In the first part, the particular offense with which the accused is charged shall be set out, and in the other part the former conviction or convictions shall be alleged. In alleging the former conviction, it is sufficient that the information allege the date when, the town or city where, and the court wherein such conviction was obtained and the crime of which the defendant was convicted, all of which may be stated in accordance with the provisions of Sec. 618.”


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    State of Connecticut v. Javier Quinones
    (8162)
    Spallone, Daly and Norcott, Js.

      Argued January 5
    decision released May 15, 1990

      Philip Russell, with whom, on the brief, was Toby Schaffer, for the appellant (defendant).

      RitaM. Shair, deputy assistant state’s attorney, with whom, on the brief, were John Bailey, state’s attorney, and Paul Murray, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals his conviction, after a jury trial, of two counts of violation of the dependency producing drug law, General Statutes § 21a-278 (b). The defendant claims that the trial court erred (1) in failing to suppress evidence seized from a locked automobile in a warrantless search, (2) by consolidating two informations and jointly trying the charged offenses, (3) by permitting the prosecution to cross-examine him about prejudicial and irrelevant matters, and (4) in failing to accept evidence of his drug dependency in denying his motion for a new trial and at sentencing. We find no error.

The evidence offered at trial reasonably supports the following facts. On the afternoon of May 24,1988, two officers of the narcotics division of the Hartford police department arrested the defendant for selling drugs. The officers were conducting a general surveillance of an apartment complex on Annawan Street, an area notorious for its constant drug activity, when they observed the defendant engage in a series of transactions in which individuals approached and handed him money. The defendant in return handed each person one or more plastic bags taken from his pocket. The defendant fled at the officers’ approach but was quickly apprehended and arrested. On the defendant’s person were $580 and twelve packets of what proved to be heroin. Each packet was stamped with the trademark “Terrific.” The defendant was shortly thereafter freed on bond.

On May 26,1988, Detective Robert Kanaitis, a member of the police narcotics unit, received certain information from an established and reliable informant. The informant stated that the defendant, identified by name, would be returning from New York with 1500 bags of heroin for distribution and would be in a yellow Mazda at an Annawan Street address on the evening of May 28.

On this information, Kanaitis and a fellow police detective went to the named location at the time specified. The officers recognized the defendant in the driver’s seat of a parked yellow Mazda. The defendant and his passenger, Elias Cruz, got out of the car. The officers observed the defendant open the passenger door, reach under the front seat and remove a brown paper bag. From this bag he withdrew three clear plastic bags, each in turn containing some number of plastic packets. The defendant gave one plastic bag to Cruz, retaining two for himself. He replaced the brown paper bag under the car’s front seat, locked the passenger door and placed the key in his pocket. The defendant then entered one of the Annawan Street apartment buildings. Cruz remained near the car and was observed engaging in the apparent sale of some of the small packets. Cruz then followed the defendant into the apartment building.

The officers remained in their unmarked police car waiting for the defendant’s return. When the defendant and Cruz reappeared more than one hour later, they were arrested and handcuffed. Using the car key seized from the defendant’s pocket, one officer opened the locked car door and retrieved the paper bag from under the front seat. The bag contained nearly 1200 small heat sealed plastic packets, all labelled “Terrific” in red letters. The bags were later determined to contain heroin with a street value of approximately $20,000 to $30,000. After several days in custody, the defendant was released on bond.

The defendant was charged in two informations with possession of narcotics with intent to sell by a person who is not dependent in violation of General Statutes § 21a-278 (b). The court granted the state’s motion for consolidation, and the informations charging the May 24 and May 28 transactions were joined for trial. The court denied the defendant’s motions to sever the informations and to suppress the evidence seized from the car. The defendant was convicted by a jury on both charges, and this appeal followed.

I

The defendant claims that the trial court erred in denying his motion to suppress the evidence of 1189 packets of heroin seized on May 28, 1988, from the locked automobile. He argues that the state failed to demonstrate that this warrantless seizure was justified under the automobile exception or as incident to a lawful arrest. We disagree.

Under both the federal and state constitutions, a warrantless search is per se unreasonable, subject to a few well defined exceptions. State v. Dukes, 209 Conn. 98, 121, 547 A.2d 10 (1988); State v. Januszewski, 182 Conn. 142, 151-52, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). These exceptions include the search of an automobile (1) where there is probable cause to believe the vehicle contains contraband, and (2) as incident to a lawful arrest. State v. Delossantos, 211 Conn. 258, 266, 559 A.2d 164, cert. denied, U.S. , 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989); State v. Badgett, 200 Conn. 412, 428, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).

In this case, the police officers, on the basis of their observations, training and experience, had probable cause to believe that the car contained packets of drugs connected to criminal activity. The inherent mobility of a car parked on a public street created the exigent circumstances justifying the warrantless search of the car and the seizure of the narcotics found therein under the automobile exception to the warrant requirement. See State v. Badgett, supra, 428-29.

We do not accept the defendant’s argument that because probable cause to search the vehicle, based on reliable, detailed information, existed for a full twenty-four hours prior to the actual search, the state could not rely on a claim of exigency. Exigent circumstances are not limited to those where probable cause is unforeseeable; they may arise at any time. Cardwell v. Lewis, 417 U.S. 583, 595-96, 94 S. Ct. 2464, 41 L. Ed. 2d 325 (1974). The fact that the police here may have earlier obtained a warrant “does not negate the possibility of a current situation’s necessitating prompt police action.” Id.; see also State v. Kolinsky, 182 Conn. 533, 541, 438 A.2d 762, cert. denied, 451 U.S. 973, 101 S. Ct. 2054, 68 L. Ed. 2d 354 (1980).

The officers also had probable cause to arrest the defendant for what they reasonably believed to be the commission of the felonies of possessing and selling controlled substances. As incident to the arrest, the officers searched the car while the defendant remained at the scene. The defendant argues that the search of his automobile incident to his arrest cannot be justified here because he could not have reached the passenger compartment. After his arrest he was in handcuffs, on the street a distance from the car and the police had his only key to the locked vehicle. We need not engage in a factual analysis of the likelihood that the defendant could obtain a weapon or destroy evidence in his automobile. See State v. Badgett, supra, 428. A warrantless search of a vehicle incident to a lawful custodial arrest is permitted as long as the arrestee remains at the scene of the arrest at the time of the search. Id.

II

The defendant next claims that it was error for the trial court to deny his motion to sever the charges against him into separate trials. He claims that the cumulative effect of the evidence presented on two legally unrelated crimes overwhelmed the jury and prejudiced his defense. We disagree.

When the defendant stands accused of two or more similar offenses, such offenses may be joined at trial if they are based on related acts which evince a common scheme, intent or motive. State v. Greene, 209 Conn. 458, 464-65, 551 A.2d 1231 (1988). Joining factually similar but legally unrelated crimes, however, creates a risk of prejudice to the defendant. Id., 465; State v. Horne, 19 Conn. App. 111, 117-18, 562 A.2d 43 (1989). The question of joinder or severance rests on the sound discretion of the trial court; State v. Carpenter, 19 Conn. App. 48, 62, 562 A.2d 35 (1989); and the defendant bears the heavy burden of showing that a denial of severance resulted in substantial injustice beyond the curative power of jury instructions. State v. Herring, 210 Conn. 78, 95, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989).

The defendant here was jointly tried for two instances within four days of selling heroin, in the same location, and in packages labelled with the same trademark. These similarities in the two crimes tended to show a common scheme. See State v. Greene, supra, 468-69; State v. Cruz, 18 Conn. App. 482, 485-87, 559 A.2d 231 (1987). The charges, therefore, could properly be joined for trial and the evidence was “cross-admissible.” See State v. Greene, supra, 465.

Even if we were to accept the defendant’s argument that the crimes were legally unrelated, the court nonetheless may join the charges for trial without abusing its discretion. The defendant here has not demonstrated that the jury was confused or overwhelmed by the cumulative evidence or that it was unable to consider the evidence relevant to each charge separately and distinctly. See State v. Boscarino, 204 Conn. 714, 721-22, 529 A.2d 1260 (1987); State v. Horne, supra, 118.

Our review of the record indicates that the state’s presentation of the case was comprehensible to the jury and logically presented. The evidence as to each crime was presented by different witnesses and was factually distinct. Further, the jury was instructed to consider each crime as a separate charge, and, therefore, the defendant has failed to show that any prejudice resulting from joinder was not cured by these instructions. See State v. Herring, supra, 97. We conclude that the court did not err in allowing the consolidation of the informations and in denying the defendant’s motion to sever.

Ill

In his third claim, the defendant argues that the trial court erred when it permitted the state to cross-examine the defendant about his financial condition and the sources of his bond and collateral. This claim is without merit.

It is well established that the trial court has broad discretion in ruling on the admissibility and relevancy of evidence. State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987). A court’s ruling on such evidentiary matters will not be reversed unless the defendant shows a clear abuse of discretion. State v. Watkins, 14 Conn. App. 67, 73, 527 A.2d 1157, cert. denied, 208 Conn. 804, 545 A.2d 1102 (1988). The extent of cross-examination is similarly within the trial court’s discretion, particularly when aimed at credibility. State v. Thompson, 191 Conn. 146, 148, 463 A.2d 611 (1983). Cross-examination, even if beyond the scope of direct, is permitted to impeach a witness’ direct testimony. State v. Sharpe, 195 Conn. 651, 657, 491 A.2d 345 (1985). Further, “[a] party who initiates discussion on the issue, [whether on direct or cross-examination,] is said to have “opened the door” [to further inquiry] by the opposing party.” State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986).

The defendant elected to testify at trial and was examined as to his work history, his earnings, his financial obligations and his lifestyle in general. Defense counsel asked him how much cash he had in his possession at the time of his arrest and how much he had in savings accounts. On cross-examination, the state continued to delve into the question of the defendant’s financial condition, and asked how he was able to post a $160,000 bond with so little savings. Although the defendant objected that the state’s questions went beyond the scope of direct examination, it is clear that the defendant himself put his financial status in issue. The questions were relevant to the state’s contention that the defendant was a major narcotics distributor and not merely a street level seller, and were appropriate to impeach the defendant’s testimony that he had limited funds. In allowing this cross-examination, the court acted properly within its discretion.

IV

Finally, the defendant claims that the court should have considered his drug dependency in ruling on his motion for a new trial and in determining his sentence. Prior to trial the defendant had offered a psychiatric report concluding that the defendant was drug-dependent, but he did not offer this evidence at trial or ask the court to make a finding on the question of his dependency. The court denied the defendant’s post-conviction motion for a new trial which, for the first time, raised the issue of whether he was drug dependent at the commission of the offenses. The court also refused to accept the defendant’s evidence on this issue at sentencing and, thus, failed to exempt him from the minimum sentences mandated by § 21a-278 (b) for non-drug-dependent persons.

The defendant concedes that he made a tactical decision not to proffer evidence of his drug dependency at trial, predicated on his fear that the evidence would adversely affect the jury’s deliberations. He now argues that, nevertheless, the court should not have been precluded from later making this finding outside the presence of the jury. We disagree.

The defendant, in effect, asks us to establish, by judicial fiat, a bifurcated procedure where the fact of drug dependency would be made, not by the fact finder at trial, but at a separate hearing. We are disinclined to mandate such a procedure.

General Statutes § 21a-278 (b) establishes different minimum penalties for persons convicted of possessing narcotics with the intent to sell on the basis of whether they are drug dependent at the time of the offense. The defendant bears the burden of providing evidence of his physical condition and of rebutting the presumption of non-dependency. State v. Januszewski, supra, 166-68; State v. Luca, 19 Conn. App. 668, 678, 564 A.2d 752 (1989). The court determines whether the defendant has produced sufficient evidence to put the question of his dependency in issue, but the jury must determine whether the state has disproved the dependency beyond a reasonable doubt. State v. Luca, supra, 672. A separate later hearing, as suggested by the defendant, would impermissibly remove the issue from the province of the trier of fact. The defendant here made a voluntary decision to forego his opportunity at trial to raise the issue of his drug dependency. We will not create a new procedure merely to give him a second chance.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 21 a-278 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marihuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

       The defendant argues that the danger, that the jury would aggregate the evidence to convict for both crimes, was exacerbated because the jury was permitted to consider illegally seized evidence. As we have decided that the evidence of the heroin packets was constitutionally seized from the car, this argument is unpersuasive.


author: Dupont, C. J.

text:
    Rose D. Ricciardi v. Ronald E. Burns et al.
    (7511)
    Dupont, C. J., Foti and Lavery, Js.
    Argued .January 16
    decision released May 15, 1990

      Kimball Haines Hunt, for the appellant (plaintiff).

      Ernest J. Mattei, with whom, on the brief, was Nora R. Dannehy, for the appellees (defendants).
   Dupont, C. J.

The plaintiff brought this action in negligence against the defendants, the driver and the owner of an automobile, seeking damages for injuries allegedly suffered in an automobile accident. The defendants denied that either was negligent, denied that any acts of the defendants were the proximate cause of any of the plaintiffs alleged injuries and asserted a special defense of comparative negligence. Following the jury’s general verdict for the defendants, the court denied the plaintiff’s motion to set aside the verdict and rendered judgment for the defendants. The plaintiff appeals from that judgment and requests either plain error review or review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), of several alleged errors in the jury instructions. The defendant argues that the general verdict rule precludes our review of the alleged errors. We agree.

The general verdict rule as enunciated in case law provides: “[I]f a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party.” Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202, 520 A.2d 208 (1987); Palmieri v. Intermagnetics General Corporation, 17 Conn. App. 488, 489, 553 A.2d 1167 (1989). “The rule applies whenever a verdict for one party could reasonably be rendered on one or more distinct causes of action . . . or distinct defenses.” (Citation omitted; emphasis omitted.) Palmieri v. Intermagnetics General Corporation, supra, 489-90. A defendant’s denial of negligence and proximate cause, and an allegation of contributory negligence as a special defense constitute separate and distinct defenses, either of which can support the jury’s general verdict. Stone v. Bastarache, 188 Conn. 201, 205, 449 A.2d 142 (1982); Farley v. T.R.W., Inc., 4 Conn. App. 191, 195A, 493 A.2d 268, cert. denied, 197 Conn. 818, 501 A.2d 388 (1985). It cannot be determined here whether the jury resolved the case on the basis of the plaintiff’s failure to prove her case or on the defendants’ assertion of their special defense; Stone v. Bastarache, supra, 204; or on the failure of the plaintiff to prove that her injuries were proximately caused by the defendant. West Haven Sound Development Corporation v. West Haven, 201 Conn. 305, 514 A.2d 734 (1986). The general verdict rule applies. See contra Hall v. Burns, 213 Conn. 446, 484 n.9, 569 A.2d 10 (1990) (where there was no special defense of contributory negligence and the action was brought under General Statutes § 13a-144).

The claimed instructional errors relate to the contributory negligence of the plaintiff, to the proximate cause of the plaintiff’s injuries and to her claimed damages. Under the general verdict rule, the plaintiff would have to prevail on her challenges as to each of the bases upon which the jury could have resolved the case. See Stone v. Bastarache, supra, 205. Because we do not review her claimed errors as to the jury instructions; see footnote 1, supra; the plaintiff can not prevail on any of those challenges.

There is no error.

In this opinion the other judges concurred.

       The plaintiff claims that the trial court erred in giving the jury instructions on the doctrine of sudden emergency and in giving instructions pursuant to Secondino v. New Haven, 147 Conn. 672, 165 A.2d 598 (1960). She also claims that no instructions as to two of the elements of the defendants’ special defense of contributory negligence should have been given because there was no evidence introduced as to them. None of these claims was made at the conclusion of the charge and no exception was taken as to them. None of these claims merits review under either the plain error doctrine or State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973).

       It does not appear in the record that the defendants raised the general verdict rule in the trial court, but the issue may be addressed, nevertheless. Hall v. Burns, 213 Conn. 446, 484 n.9, 569 A.2d 10 (1990).

       The plaintiff had brought two prior lawsuits against other defendants alleging injuries to the same parts of her body as in this case. The Seeondino instruction; Secondino v. New Haven, 147 Conn. 672, 165 A.2d 598 (1960); related to the failure of the plaintiff to produce as witnesses the treating physicians who had treated or operated on the plaintiff in connection with her prior injuries.


author: E. Y. O’Connell, J.

text:
    State of Connecticut v. Rachel McNeil
    (7470)
    Borden, O’Connell and Lavery, Js.
    Argued October 5, 1989
    decision released May 15, 1990

      Temmy Ann Pieszak, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Carolyn K. Longstreth, deputy assistant state’s attorney, with whom was Timothy Liston, assistant state’s attorney, for the appellee (state).
   E. Y. O’Connell, J.

The defendant appeals from the judgment of conviction, after a jury trial, of possession with intent to sell a narcotic substance by a person who is not drug-dependent, in violation of General Statutes § 2 la-278 (b). She does not challenge her conviction of conspiracy to sell a narcotic substance in violation of General Statutes §§ 53a-48 and 21a-277 (a).

The defendant claims that (1) the court erred by instructing the jury to make the initial determination of drug dependency, (2) the state did not meet its burden of proving beyond a reasonable doubt that the defendant was not a drug-dependent person, and (3) the court erred by improperly charging the jury on its duty to reach a unanimous verdict. We find error.

In her first claim of error, the defendant asserts that the trial court should not have permitted the jury to determine whether the defendant had introduced substantial evidence of drug dependency. At oral argument, the state conceded that this court’s decision in State v. Luca, 19 Conn. App. 668, 563 A.2d 752 (1989), is dispositive of this claim.

In a prosecution under General Statutes § 21a-278 (b), the state may initially rely on a presumption that the defendant is not drug-dependent. State v. Januszewski, 182 Conn. 142, 166, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). This presumption evaporates when the defendant introduces substantial evidence tending to prove drug dependency, and the state must then prove, beyond a reasonable doubt, that the defendant is not drug-dependent. Id., 169; State v. Luca, supra, 671. Luca clarified that it is the court and not the jury that must decide if the defendant has introduced sufficient evidence of drug dependency so as to put the burden on the state of proving nondependency. State v. Luca, supra, 672.

Consequently, it was error for the trial court, in the present case, to instruct the jury that it had the duty to make this determination. Our finding of error on the first claim, however, does not complete our review, for we are faced with a claim that was not presented in Luca. Here, the defendant asserts that the state failed to prove, beyond a reasonable doubt, all that it was required to prove in order to gain a conviction under § 21a-278 (b).

It is axiomatic that the state must prove each element of a crime beyond a reasonable doubt in order to obtain a conviction. State v. Morrill, 193 Conn. 602, 608, 478 A.2d 994 (1984). If a conviction is later reversed for insufficiency of evidence, a second trial is precluded by double jeopardy. Burke v. United States, 437 U.S. 1, 18, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978); State v. Seravalli, 189 Conn. 201, 209, 455 A.2d 852 (1983), cert. dismissed, 461 U.S. 920, 103 S. Ct. 2076, 77 L. Ed. 2d 291. While it is true that the absence of drug dependency is not an element of the offense charged here; State v. Januszewski, supra; once the defendant has introduced substantial evidence to show dependency, the state is required to prove its absence beyond a reasonable doubt. Id.; State v. Luca, supra, 671. The defendant argues that she produced substantial evidence to put drug dependency in issue and that the state failed to prove, beyond a reasonable doubt, that she was not drug-dependent. Therefore, she claims, any retrial under § 2 la-278 (b) is barred by double jeopardy.

We must first determine if the defendant has put her drug dependency in issue. In conducting this inquiry, we find guidance in the analysis of the presumption used in insanity cases. See State v. Januszewski, supra, 168. In those cases, the state may initially rely on the presumption of sanity; State v. Evans, 203 Conn. 212,

237, 523 A.2d 1306 (1987); just as in drug prosecutions the state may initially rely on a presumption of non-dependency. State v. Luca, supra. The insanity cases hold that the function of the court is limited to a determination that “substantial” evidence tending to prove insanity has been introduced. State v. Holmquist, 173 Conn. 140, 150, 376 A.2d 1111, cert. denied, 434 U.S. 906, 98 S. Ct. 306, 54 L. Ed. 2d 193 (1977). “Whether . . . there was substantial evidence of insanity . . . depends on whether there was evidence sufficient, if credited, to raise a reasonable doubt as to the sanity of the defendant at the time of the homicide.” (Emphasis added.) State v. Conte, 157 Conn. 209, 212-13, 251 A.2d 81, cert. denied, 396 U.S. 964, 90 S. Ct. 439, 24 L. Ed. 2d 428 (1968). It is not the trial court’s function to determine the credibility of the insanity evidence; see State v. Robinson, 213 Conn. 243, 256, 567 A.2d 1173 (1989) (credibility is within the province of the jury); but only to assure that the burden of proving sanity is not put on the state where there has been only a tangential, casual, or frivolous mention of the defendant’s possible lack of sanity. By analogy, therefore, in a drug prosecution the trial court is limited to determining whether the defendant has introduced sufficient evidence, if credited by the jury, to raise a reasonable doubt as to non-drug-dependency.

Applying this analysis to the facts here, we are satisfied that ,the defendant introduced substantial evidence of drug dependency, thus putting the burden of proof on the state. See State v. Perez, 182 Conn. 603, 605, 438 A.2d 1149 (1981); State v. Vennard, 159 Conn. 385, 403, 270 A.2d 837 (1970), cert. denied, 400 U.S. 1011, 91 S. Ct. 576, 27 L. Ed. 2d 625 (1971). The defendant testified concerning her long term use of various drugs. Her claim of drug dependency also was supported by the testimony of her mother and a physician. The state elected not to present any evidence on the question of drug dependency but instead limited itself to cross-examination of the defendant’s witnesses.

The state, of course, need not present its own witnesses to establish non-drug-dependency. See State v. Evans, supra, 237-38. It may instead attempt to meet its burden through cross-examination of defense witnesses by extracting evidence favorable to the state’s position. The state followed this strategy here and failed. Its cross-examination went only to the credibility of the witnesses and no new evidence was elicited. Even if the jury did not believe the witnesses, that disbelief would leave the issue of non-drug-dependency in the area of an unproven question. It is well settled that a jury may not infer facts from its disbelief of the evidence. While a jury may reject a witness’ testimony, it may not conclude from that rejection that the opposite is true. State v. Coleman, 14 Conn. App. 657, 671-76, 544 A.2d 194, cert. denied, 208 Conn. 815, 546 A.2d 283 (1988). The state failed to offer sufficient evidence to justify a conviction under General Statutes § 21a-278 (b). As a consequence, the defendant’s conviction under that section must be vacated.

The appropriate form of relief must now be determined. In this case, the error in the jury instructions and the insufficiency in the evidence go to the question of non-drug-dependency. Our Supreme Court has determined that a violation of General Statutes § 2 la-277 (a) is a lesser included offense of a violation of § 21a-278 (b). State v. Amaral, 179 Conn. 239, 242-44, 425 A.2d 1293 (1979). Because the erroneous instruction implicates the jury’s finding only as to non-drug-dependency, and, as the state has produced sufficient evidence to prove all the elements of a violation of § 21a-277 (a), we need only remand the case with direction to modify the judgment so as to reflect a conviction of a violation of § 21a-277 (a). State v. Carpenter, 214 Conn. 77, 85, 570 A.2d 203 (1990); State v. McGann, 199 Conn. 163, 178-79, 506 A.2d 109 (1986); State v. Horne, 19 Conn. App. 111, 143-44, 562 A.2d 43 (1989).

We reject the defendant’s claim that a unanimity instruction was needed here. Because the evidence showed a hand to hand drug sale by the defendant, any juror who found that the defendant sold drugs also had to find that she possessed the drugs just prior to the sale. Thus, the jury had to be unanimous at least in finding her guilty of possession with intent to sell. See State v. Jones, 193 Conn. 70, 76-77, 475 A.2d 1087 (1984).

There is error, the judgment of conviction of possession of a narcotic substance with intent to sell by a person who is not drug-dependent, in violation of General Statutes § 21a-278 (b), is vacated and the case is remanded to the trial court with direction to render a judgment of acquittal on that charge, and to render a judgment of conviction of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-277 (a) and to resentence the defendant in accordance with that conviction.

In this opinion the other judges concurred.


text:
    Judith Vincent v. Litchfield Farms, Inc.
    (7945)
    Dupont, C. J., Foti and Lavery, Js.

      Argued January 8
    decision released May 15, 1990

      William F. Gallagher, with whom, on the brief, were Cynthia C. Bott and James W. Marshall, for the appellant (plaintiff).

      Lawrence R. Pellett, for the appellees (defendants Michael Loeb et al.).
   Dupont, C. J.

The issue of this appeal is whether the trial court was correct in granting the third party defendants’ motion for summary judgment against the plaintiff on the basis that the period of limitations set forth in General Statutes § 52-584 had run as to any action by the plaintiff against them.

The plaintiff allegedly was injured in the parking lot of Litchfield Farms, Inc. (Farm Shop) on May 2,1986. On June 8,1987, she brought suit against Farm Shop. On March 21, 1988, Farm Shop’s motion to implead Michael and Rhoda Loeb, the lessors of Farm Shop, as third party defendants was granted and, on March 31,1988, Farm Shop served a third party complaint against the Loebs, seeking indemnification for any damages for which they were found liable to the plaintiff. An appearance for the third party defendants was filed on July 6, 1988. On July 20, 1988, the plaintiff filed an amended complaint, naming the Loebs codefendants in the original action.

The plaintiff claims (1) that compliance with General Statutes § 52-102a (c) and Practice Book § 117 insulated her from the granting of summary judgment and (2) that her direct claim against the third party defendants relates back to the date of the defendant’s third party complaint, thereby shielding her from the granting of summary judgment. These claims are interrelated and will be discussed together.

Practice Book § 117 and General Statutes § 52-102a (c) contain identical language. “The plaintiff, within twenty days after the third-party defendant appears in the action, may assert any claim against the third-party defendant arising out of the transaction or occurrence [that] is the subject matter of the original complaint, and the third-party defendant, as against such claim, shall have available to him all remedies available to an original defendant, including the right to assert [setoffs] or counterclaims against the plaintiff.”

The third party defendants were impleaded and served by the defendant within the statutory period of limitations for the plaintiff’s action against the defendant. They were not served or sued directly by the plaintiff, however, within the statutory period of limitations for her personal injury.

It is undisputed that the plaintiff’s amended complaint adding a count against the third party defendants was filed within twenty days of their appearance as third party defendants. The plaintiff argues that she, thereby, complied with Practice Book § 117 and General Statutes § 52-102a (c). She further argues that the third party defendants were fairly apprised of her claim against them as of the time they were impleaded by the original defendant, and that the twenty day period provided by § 117 cannot be abrogated by the statutory time limitation on any independent action by her against the third party defendants.

The legislative history reveals that General Statutes § 52-102a (c) and, therefore, Practice Book § 117 are based upon Rule 14 (a) of the Federal Rules of Civil Procedure. That history shows that there was no intent on the part of the legislature to enlarge the rights of an original plaintiff or to extend the time in which he or she might bring a direct action against a third party defendant. Instead, the intent underlying the enactment of § 52-102a (c) was to adopt the federal impleader procedure for the purpose of judicial economy. Since there is no Connecticut case directly resolving the issue of this case, we, therefore, look to the federal courts’ construction of the interaction between Rule 14 (a) and statutes of limitation.

Under Rule 14 (a), a plaintiff’s amendment of a complaint in order to bring a direct action against a third party defendant is treated as the filing of an original action by the plaintiff against the third party defendant. Monarch Industrial Corporation v. American Motorists Ins. Co., 276 F. Sup. 972, 981 (S.D.N.Y. 1967). Consequently, “[t]he filing of a third-party complaint by the original Defendant does not toll the running of the statute [of limitations] on a cause of action between the Plaintiff and a third-party Defendant.” Straub v. Desa Industries, Inc., 88 F.R.D. 6, 9 (1980); Monarch Industrial Corporation v. American Motorists Ins. Co., supra; Zaveta v. Portelli, 127 App. Div. 2d 760, 761, 512 N.Y.S.2d 152 (1987); but see Duffy v. Horton Memorial Hospital, 66 N.Y.2d 473, 477, 488 N.E.2d 820, 497 N.Y.S.2d 890 (1985).

We see no reason to construe General Statutes § 52-102a (c) or Practice Book § 117 differently from the construction that federal courts have given to Rule 14 (a) in this respect. The plaintiffs complaint was amended after the statute of limitations had run as to the third party defendants. The claim was, therefore, time-barred, and the trial court was correct in granting the third party defendants’ motion for summary judgment.

There is no error.

In this opinion the other judges concurred.

       The plaintiff also claims that to hold otherwise would mean that the third party defendants could control the running of the limitations period by timing their appearance because the plaintiff could not assert a claim against the third parties until they appeared. The answer to this argument is that the plaintiff could have sued the third party defendants at any time since the date of the accident and was not required to wait until the defendant impleaded them.


author: Borden, J.

text:
    Terrence G. McKenna v. Steven Woods
    (8202)
    Borden, Daly and Lavery, Js.

      Argued February 6
    decision released May 15, 1990

      Jackson T. King, Jr., with whom, on the brief, was Jeffrey R. Godley, for the appellant (defendant).

      Lloyd L. Langhammer, for the appellee (plaintiff).
   Borden, J.

The plaintiff brought this action for specific performance and damages following the defendant’s refusal to convey certain real property. The defendant appeals from the judgment of the trial court accepting an attorney trial referee’s recommendation awarding damages in the amount of $30,500 to the plaintiff. The defendant claims that the court erred (1) in finding that there was an anticipatory breach, (2) in awarding damages even though the plaintiff was not ready, willing and able to perform, and (3) in improperly computing the amount of damages. We find no error.

The referee found the following facts. Pursuant to a written contract dated January 28, 1987, the plaintiff agreed to buy for $154,500, a two-family house under construction by the defendant on a lot in Stoning-ton. The contract called for the plaintiff to pay $15,000 at the date of execution, and to pay the balance at the date of closing. The balance was to consist of a $40,000 cash payment and the proceeds from a $99,500 mortgage. With respect to the contemplated $40,000 payment, the plaintiff intended to pay only $27,725 because of setoffs based on certain contractual payment obligations of the defendant. By the spring of 1987, the plaintiff had accumulated approximately $24,000 in a bank account for the purchase, but never accumulated exactly $27,725. The contract further provided for a closing on or before March 27,1987, and required the house to be completed and a certificate of occupancy to be issued no later than that date. The contract did not specify that time was of the essence.

The referee further found that, because of construction delays, the defendant was unable to complete construction of the house by the closing date of March 27, 1987. The defendant substantially completed construction of the house in July, 1987, but did not receive the certificate of occupancy until October, 1987. On January 28,1987, the date of execution of the contract, the value of the property was the contract price of $154,500, and in October, 1987, its value was $170,000. The referee found that in July, 1987, the defendant wilfully committed an anticipatory breach of the contract, informing the plaintiff that he would not sell him the house at the contract price. Between the contractual date of performance and the defendant’s repudiation, the parties communicated with each other on a regular basis concerning the progress of the ongoing construction, and assumed and acted as though the contract was still in effect. The referee also found that in late July, 1987, the plaintiff made a written demand for performance, stating that he was ready, willing and able to purchase the property. The plaintiff had discussed a mortgage application with a mortgage broker and was confident of securing a mortgage, but never formally applied for one. The house was not sufficiently complete for a mortgage appraisal until July, 1987.

The referee concluded that the plaintiff was not entitled to specific performance because he never received a mortgage commitment. The referee also concluded that, after the defendant’s anticipatory breach, the plaintiff was excused from any obligation to apply for a mortgage or to accumulate the exact amount of cash required to close. The referee awarded the plaintiff damages in the amount of $30,500, plus interest, for the defendant’s breach of contract.

The court accepted the referee’s report and rendered judgment accordingly. This appeal followed.

I

The defendant first claims that the court erred in concluding that he had anticipatorily breached the contract. He argues that once the March 27, 1987 contractual performance date passed, there was no contract for him to breach because the parties did not intend to modify the contract by extending the time for performance. This argument is based on the contentions that the referee did not explicitly find that the parties had modified the contract, that there was no oral or written agreement to modify the contract, and that the contract specifically required that modifications be in writing. We disagree.

An anticipatory breach of contract occurs when the breaching party repudiates his duty before the time for performance has arrived. Martin v. Kavanewsky, 157 Conn. 514, 518-19, 255 A.2d 619 (1969); Koski v. Eyles, 37 Conn. Sup. 861, 862, 440 A.2d 317 (1981). Its effect is to allow the nonbreaching party to discharge his remaining duties of performance, and to initiate an action without having to await the time for performance. Martin v. Kavanewsky, supra. Furthermore, contract modification is a question of fact; Three S. Development Co. v. Santore, 193 Conn. 174, 177-78, 474 A.2d 795 (1984); and may be effectuated expressly by mutual promises; id., 178; or may be implied in fact from the parties’ conduct. Cf. Rahmati v. Mehri, 188 Conn. 583, 587, 452 A.2d 638 (1982) (manifestation of mutual assent may be found by the conduct of the parties).

In this case, the time for performance stated in the contract was March 27, 1987. The referee found that the defendant committed an anticipatory breach of the contract in July, 1987. The referee also found that the parties were in regular communication about the progress of the house through July, 1987, and that until the defendant repudiated the contract in July, 1987, they assumed and conducted themselves as if the contract was still in effect. Implicit in these findings is the finding that the contract was modified to extend the time for performance to October, 1987, when the defendant completed construction of the house and obtained a certificate of occupancy. This implied finding, together with the explicit finding that the defendant wilfully repudiated the contract in July, 1987, render the doctrine of anticipatory breach applicable to this case.

Because the conduct of the parties was sufficient to establish a modification of the contract extending its performance date, the fact that there was no explicit agreement to extend the time for performance is of no import. Further, we reject the defendant’s claim that there could be no modification because the contract specifically provided for modifications to be in writing. It is well settled that despite the presence of such a clause in a contract, a modification by subsequent parol agreement will be given effect. Blakeslee v. Water Commissioners, 121 Conn. 163, 182-83, 183 A. 887 (1936). We see no reason why this principle should not also apply to a modification implied in fact from the conduct of the parties.

The defendant, relying on Grenier v. Compratt Construction Co., 189 Conn. 144, 454 A.2d 1289 (1983), Kakalik v. Bernardo, 184 Conn. 386, 439 A.2d 1016 (1981), and Mihalyak v. Mihalyak, 11 Conn. App. 610, 529 A.2d 213 (1987), also claims that the four month span between March and July, 1987, was unreasonable in this case. This line of cases involves the reasonableness of the time for performance beyond the contractual date when the contract has not been modified and time is not of the essence. When, as in this case, there is a modification, the reasonableness for the time of performance in the absence of such a modification is irrelevant.

II

The defendant next claims that because the court found that the plaintiff was not ready, willing and able to perform, it erred in awarding damages. He contends that an award of damages was inconsistent with certain of the referee’s findings, namely, that the plaintiff had insufficient funds to close on the property because he had accumulated only $24,000 and not the $27,725 required to close under the contract, and that the plaintiff never secured a mortgage commitment. The defendant argues that these facts precluded an award of damages. We disagree.

It is axiomatic that, in order to obtain specific performance, a buyer must prove that he was ready, willing and able to purchase the property. DiBella v. Widlitz, 207 Conn. 194, 199-200, 541 A.2d 91 (1988); Romaniello v. Pensiero, 21 Conn. App. 57, 60, 571 A.2d 145 (1990). It has also long been accepted that an anticipatory breach discharges any remaining duties of the nonbreaching party, and once there has been a repudiation that party is no longer required to hold himself ready, willing and able to perform. See Martin v. Kavanewsky, supra. To recover damages based on an anticipatory breach, however, the injured party need not establish that he was ready, willing and able to perform on the date for performance; he need show only that he would have been ready, willing and able to perform had there been no repudiation. E. Farnsworth, Contracts (1982) § 8.22, pp. 637-38; J. Calamari & J. Perillo, Contracts (2d Ed.) § 12-10, pp. 467-68; see Gilman v. Pederson, 182 Conn. 582, 584, 438 A.2d 780 (1981) (repudiation is actionable only in absence of breach or repudiation by other contracting party).

In this case, therefore, the facts that the plaintiff did not accumulate all of the funds necessary for the final payment at the closing and did not secure a mortgage commitment, did not preclude an award of damages. The referee found that by the spring of 1987, the plaintiff had accumulated all but $3725 of the amount of cash required to close, and that in July, 1987, the plaintiff demanded performance of the contract, stating that he was ready, willing and able to purchase the house and lot. The referee also found that, although the plaintiff had not formally applied for a mortgage, he had discussions with a mortgage broker and was confident that he could secure one. There was also evidence that before the plaintiff could obtain a mortgage, the house had to be sufficiently complete for an appraisal, and the referee found that prior to July, 1987, it was not completed to that extent. It is implicit in these findings that the plaintiff would have been ready, willing and able to purchase the property but for the defendant’s repudiation.

Ill

The defendant’s last claim involves the amount of damages awarded. He argues that the court erroneously computed the amount of the plaintiff’s expectancy interest in using the value of the property as of October, 1987. He contends that the proper measure of damages was the value of the house on March 27, 1987, the date of performance specified in the contract, in which case the plaintiff would be entitled only to nominal damages. He argues in the alternative that if there was an anticipatory breach, the appropriate measure of damages is the value of the house in July, 1987, because that was when the defendant’s breach took place. Because we have already concluded that the doctrine of anticipatory breach is appropriate in this case, we need address only the defendant’s alternative claim that damages should have been measured at the time of the anticipatory breach. We disagree and conclude that, under the circumstances of this case involving an anticipatory breach of a real estate contract, the measurement of the plaintiff’s expectancy interest was appropriately measured at the time of performance.

The damages in a contract action should place the injured party in the same position that he would have been in had the contract been fully performed. Williams v. Breyer, 21 Conn. App. 380, 384, 573 A.2d 765 (1990). To achieve this in a case of breach by nonperformance, the injured party should be awarded the difference between the contract price and the value of the consideration to which he is contractually entitled, as measured at the time of breach. See Loda v. H. K. Sargeant & Associates, Inc., 188 Conn. 69, 82, 448 A.2d 812 (1982). In such a case, the time of the breach and the time of performance ordinarily coincide. See, e.g., Williams v. Breyer, supra, 381-82 (defendant breached when the time for performance as called for in the contract had lapsed).

In the case of anticipatory breach, however, the inquiry more appropriately focuses on the date of performance contemplated by the contract, rather than on the earlier date of anticipatory breach. To do otherwise would be inconsistent with the general principle governing contract remedies, namely, protecting the injured party’s expectation interest by putting him in as good a position as he would have been in had the contract been performed. Loda v. H. K. Sargeant & Associates, Inc., supra, 81. That principle involves measuring damages based on the value of the promised performance on the date that performance is to be rendered, and that measurement is no different for an anticipatory breach. A. Corbin, Contracts (1964) § 1053, pp. 311-12. “A promise is not treated as a promise to perform at the date of repudiation merely because a repudiation that takes place before the time agreed upon for performance is treated as a present breach of contract.” Id., 313.

Furthermore, the defendant’s proposal would encourage breaches. If the date of repudiation were used to measure damages, a seller of real estate would be induced to commit an anticipatory breach whenever he is contractually obligated to convey real property in a rising market, so that he, rather than the buyer, would reap the incremental appreciation accruing from the time of the repudiation to the time of promised performance. To prevent this scenario, the date of performance must govern.

In this case, the defendant would have performed under the contract when he delivered a completed house with a certificate of occupancy. Had the defendant not repudiated the contract, performance would have taken place in October, 1987, when the value of the house was $170,000. The trial court’s damage award was $30,500, exclusive of interest. This was comprised of two parts. First, the plaintiff was awarded his expectation interest of $15,500, which was the difference between the actual value of the contract had it been performed, namely, $170,000, and the contract price of $154,500. Second, the plaintiff was awarded his restitution interest of $15,000, which was the return of his deposit. See footnote 2, supra. We see nothing improper about this measure of damages.

There is no error.

In this opinion the other judges concurred.

       The parties had previously entered into a contract in November, 1986, wherein the plaintiff sold this lot to the defendant for $15,000, plus other consideration. That contract required the defendant to build and sell a two-family house on the lot. The remaining consideration was to be based on the defendant remitting a portion of the profit, not to exceed $15,000, on the eventual sale of the house. Subsequently, on January 28,1987, the parties entered into a second contract, which is the subject of this appeal, whereby the defendant would resell the improved parcel to the plaintiff. The referee found that this contract superseded the earlier contract and, accordingly, limited the action for breach to the second contract. The plaintiff does not dispute this finding.

       Although the contract called for a $15,000 deposit, no cash was tendered. Instead, the plaintiff was credited with the $15,000 “profit” consideration that the defendant had agreed to pay under their earlier contract. See footnote 1, supra.

       The referee’s corrected finding indicates this date as “late January, 1987.” (Emphasis added.) It is clear, however, from the context of the corrected finding, that this was a clerical error, and that the referee meant late July, 1987.


text:
    Dram Associates et al. v. Planning and Zoning Commission of the Town of Cromwell
    (8198)
    Spallone, O’Connell and Fora, Js.
    Argued January 30
    decision released May 22, 1990

      Richard W. Tome, with whom was John H. Hanks, for the appellant-appellee (defendant).

      William Howard, for the appellees-appellants (plaintiffs).
   Spallone, J.

The defendant planning and zoning commission of the town of Cromwell appeals from the judgment of the Superior Court sustaining the plaintiffs’ appeal from the commission’s decision to rezone the plaintiffs’ property. The commission claims that the court erred in holding (1) that the personal knowledge of the commission members on matters of traffic flow and local demand for office space may not be the basis for a zoning change, (2) that the record did not support the commission’s decision, and (3) that the plaintiffs were denied their right to a fair hearing. The plaintiffs, owners of property affected by the zoning change, cross appeal from the trial court's ruling that they waived any defect in mail notice of the public hearing. We find error on the defendant’s appeal but not on the plaintiffs’ cross appeal.

The plaintiffs, two Connecticut partnerships and several individuals, own three parcels of land totalling approximately thirty-four acres on the east side of Route 9 in Cromwell. After the plaintiffs acquired the property in 1972, they made extensive efforts to develop the land in accordance with its commercial and residential zoning. In 1986, the plaintiffs agreed to sell the property for the construction of a shopping mall. A notice of this agreement was recorded in the land records, but the buyer had not prepared and filed a site plan as of August, 1986.

On August 19, 1986, the zoning commission held a public hearing to consider proposed comprehensive zoning changes, including the creation of a new zone designation of planned office development. The new zone encompassed property on the east side of Route 9 and included the plaintiffs’ lots as well as other land not involved in this appeal. Richard Sandefur, a principal in and a trustee for one of the plaintiff partnerships, was present at the hearing and spoke at length opposing the zone change because it would block the planned mall construction. The commission voted unanimously to adopt the néw zoning regulations, but thereafter agreed to Sandefur’s request to continue the public hearing so that he might retain an attorney and make another presentation of his arguments.

The commission held a second public hearing on September 16,1986, at which the plaintiffs’ attorney made a full presentation of their position, called witnesses and introduced various documents into evidence. Several members of the public in attendance then spoke, including Michelle Stronz, who favored the zone change. The commission chairman did not permit the plaintiffs’ attorney to interrupt Stronz to ask questions or subsequently to respond to her comments. The adopted zoning regulations were duly published according to statutory mandates.

The plaintiffs appealed to the Superior Court, claiming that the commission had failed to send notice by mail of the September hearing to all the plaintiffs and that it had reached an arbitrary and capricious decision. The court ruled that the plaintiffs had waived any defect in mail notice, but nevertheless sustained the appeal, holding that the commission’s decision was not supported by competent evidence on the record and that the commission had denied the plaintiffs a fair hearing by preventing the cross-examination of Stronz. This appeal, on certification, and cross appeal followed.

I

The commission’s first two claims challenge the court’s determination that there was insufficient evidence on the record to support the commission’s findings and decision. We agree with the defendant that the court erred in reaching this conclusion.

A zoning board may enact or amend its regulations “ ‘ “whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for change. . . ” Arnold Bernhard & Co. v. Planning & Zoning Commission, 194 Conn. 152, 164, 479 A.2d 801 (1984). When acting in its legislative capacity, a zoning board has broad discretion to modify its regulations. Wisniewski v. Zoning Board, 6 Conn. App. 666, 667, 506 A.2d 1092 (1986). Commission decisions must be upheld on appeal if reasonably supported by the record. Burnham v. Planning & Zoning Commission, 189 Conn. 261, 265, 455 A.2d 339 (1983).

The records of the public meetings indicate that the commission gave four principal reasons for the zoning change: (1) to diversify the town’s economic base; (2) to capitalize on the town’s proximity to the interstate highway system; (3) to confine commercial development to the west side of Route 9; and (4) to create a transitional buffer zone between the east side of Route 9 and nearby residences. These reasons were based on a report submitted by the plan update subcommittee of the commission, which had been established in late 1985 to make rezoning recommendations. The report was read into the record at the August public hearing and discussed in full at both hearings. In support of the plan, the town planner explained that the zone change would attract the office development enjoyed by neighboring communities, that the traffic from such development could be minimized if the development was located near the interstate highway access ramps on Route 9, and that a shopping center on the east side of Route 9 would generate traffic in an area best left as an office park buffer between the road and the residential area to its rear.

On appeal, the Superior Court concluded that the commission’s lay members were not competent to determine the impact of various types of development on local traffic conditions or to evaluate the potential market for office space. Because there was no expert testimony offered on these matters, the court found insufficient evidence in the record to support the commission’s decision. This ruling is contrary to our holding in Central Bank for Savings v. Planning & Zoning Commission, 13 Conn. App. 448, 537 A.2d 510 (1988), and cannot stand.

In Central Bank, the trial court sustained an appeal from a zoning change on these same grounds. We found error, holding that lay commission members properly may rely on their personal knowledge of traffic patterns and real estate development needs to make zoning changes. Id., 454-56. Pursuant to General Statutes § 8-2, a zoning authority shall consider various goals in making a zone change, including the reduction of street congestion, the prevention of undue population concentrations and the encouragement of the most appropriate land use. Commission members’ personal knowledge and observations relevant to these factors may be relied on to the same extent as if they were in evidence. Id., 454-55; see also Burnham v. Planning & Zoning Commission, supra, 267. Expert testimony on matters of traffic control and real estate markets is not required. Feinson v. Conservation Commission, 180 Conn. 421, 427, 429 A.2d 910 (1980).

The court’s improper exclusion of this evidence explains its conclusion that the commission reached its decision without sufficient evidence. See Central Bank for Savings v. Planning & Zoning Commission, supra, 458. Because there was ample evidence in the record to support the zone change, the court’s finding of insufficient evidence was in error.

II

The commission claims that the trial court erred in holding that the plaintiffs were denied a fair hearing because the plaintiffs’ counsel was not permitted to cross-examine Stronz or to speak in rebuttal. The commission points out that it was acting in its legislative capacity to promulgate zoning regulations and that the public hearings were open to all citizens, who spoke at the general invitation of the commission. It argues that it was not required to afford all citizens the right to cross-examine and rebut each other at such hearings. We need not decide this issue because we conclude that under these circumstances any error was harmless.

Public hearings play an essential role in providing a forum for citizens to give their views on proposed zoning changes. Couch v. Zoning Commission, 141 Conn. 349, 357, 106 A.2d 173 (1954). A municipal planning commission, if functioning as a legislative, judicial or quasi-judicial agency, is required “to observe the safeguards, ordinarily guaranteed to the applicants and the public of a fair opportunity to cross-examine witnesses . . . and to offer evidence in explanation or rebuttal . . . .” Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 674, 236 A.2d 917 (1967). The public has the right to know and test the sufficiency of the facts upon which a commission bases its action. Reed v. Planning & Zoning Commission, 208 Conn. 431, 433, 544 A.2d 1213 (1988). The denial of an opportunity to cross-examine a witness is harmless error, however, if the testimony was not germane to the zoning board’s decision. Wadell v. Board of Zoning Appeals, 136 Conn. 1, 10, 68 A.2d 152 (1949).

The commission’s decision to approve the zoning change was based upon its own knowledge of the factors articulated in the town planner’s report put on record at the August hearing. These factors were fully discussed at both hearings, and the plaintiffs do not claim that they were denied an opportunity to challenge the data or to rebut the town planner. There is no indication in the record that any member of the commission relied on or cited Stronz’s remarks as a basis for his decision. On the basis of ample evidence, excluding Stronz’s remarks, introduced at public hearings, the commission has placed on the record explicit reasons for the zoning change. We will not look behind these reasons to speculate on other influences. Central Bank for Savings v. Planning & Zoning Commission, supra, 457. We conclude that any error in not affording the plaintiffs an opportunity to cross-examine Stronz is harmless under the facts of this case.

Ill

The plaintiffs’ cross appeal is without merit. They claim that the commission had no jurisdiction at the public meeting on September 16, 1986, because the commission had failed to supply actual notice to all the plaintiffs. Cromwell zoning regulations require, in addition to constructive notice by legal advertisements, notice by certified mail to each owner of property within the boundaries of a proposed zone change. Code of the town of Cromwell § 236-4 (B) (3). We agree with the Superior Court that any defect in personal notice was waived because the plaintiffs, represented by counsel, appeared at the hearing and failed to object to the lack of notice. See Schwartz v. Hamden, 168 Conn. 8, 14-15, 357 A.2d 488 (1975); Chesson v. Zoning Commission, 157 Conn. 520, 527, 254 A.2d 864 (1969).

There is error on the appeal, the judgment is set aside and the case is remanded to the trial court with direction to dismiss the plaintiffs’ appeal. There is no error on the cross appeal.

In this opinion the other judges concurred.


author: Foti, J.

text:
    DeFonce Construction Corporation v. Leslie and Elliot Company
    (8032)
    Dupont, C. J., Foti and Lavery, Js.
    Argued January 9
    decision released May 22, 1990

      Wesley W. Horton, with whom were Jeffrey A. Hoberman and, on the brief, John D. Reardon and John E. Larson, for the appellant (defendant).

      Richard L. Albrecht, with whom, on the brief, was Gabriel Miller, for the appellee (plaintiff).
   Foti, J.

This appeal arises from a contract action between the parties that was heard, with the consent of both parties, by an attorney trial referee. The defendant appeals from the judgment rendered by the trial court after it accepted the attorney trial referee’s report. The defendant claims that the trial court erred (1) in refusing to grant the defendant an extension of time to file a motion to correct, and (2) in accepting the referee’s report without considering the defendant’s objections to the same. We find no error.

The following facts are relevant to the resolution of the defendant’s claims. On July 23, 1983, the plaintiff entered into a subcontract with the defendant whereby the plaintiff agreed to construct improvements on a waterfront facility at the state pier in New London. The defendant had earlier entered into a contract with the naval facilities engineering command of the Department of the Navy for the same project. On January 10,1984, the plaintiff instituted this action against the defendant for breach of contract.

Four months after the close of the hearing, the parties waived the provision of General Statutes § 51-183b and stipulated that judgment in this nonjury civil case could be rendered at some time beyond the statutorily required 120 days of the completion of the hearing. The attorney trial referee requested that the parties file posttrial findings of fact. The plaintiff complied with the referee’s request. When the defendant’s posttrial findings of fact were not forthcoming, the referee notified it that if he did not receive the findings within ten days he would proceed without them. The defendant never filed its findings and the referee advised the court of his findings and conclusions without the benefit of the defendant’s input.

The attorney trial referee filed his findings of fact on February 10, 1989. The defendant filed no motion to correct these findings within the two weeks allowed by Practice Book § 438. On March 6, 1989, the plaintiff filed a motion for judgment with the trial court. On the same date, the defendant filed an objection to the entry of judgment on the ground that the referee’s report was not filed within 120 days of the completion of the trial. On March 8,1989, five days beyond the allotted deadline, the defendant filed a motion to correct. The next day, the plaintiff filed an objection to, and a motion to strike, the defendant’s late motion to correct. On March 13, five days after filing his motion to correct, the defendant filed a motion for extension of time within which to file that motion. The defendant later renewed his objection to the entry of judgment.

The trial court conducted a hearing on the plaintiff’s motion for judgment, the defendant’s motion to correct, the plaintiff’s motion to strike and the defendant’s motion for extension of time. The court denied, as untimely, the defendant’s motions to correct and for an extension of time. It granted the plaintiffs motion for judgment and rendered judgment for the plaintiff.

The defendant claims that the trial court erred when it refused to grant its motion for an extension of time within which to file a motion to correct the trial referee’s findings.

Practice Book § 438 provides in part: “If either party desires to have the report or the finding corrected by striking out any of the facts found, or by adding any further facts, or by stating the claims of the parties made before the committee, or by setting forth rulings upon evidence or other rulings of the committee, he shall within two weeks after the filing of the report or finding file with the court a motion to correct setting forth the changes and additions desired by him . . . .” (Emphasis added.) A motion to correct is the proper motion to file when seeking additions or corrections in a state trial referee’s findings. Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 502-503, 508 A.2d 415 (1986).

A court, “for good cause shown, may extend the time for filing motions to correct ...” (Emphasis added.) Practice Book § 444. The use of the permissive “may” in this rule of practice indicates that the granting or denial of a motion for extension of time within which to file a motion to correct is a matter of judicial discretion. In matters of judicial discretion, the action of the trial court will not be disturbed on appeal unless that court acted in clear abuse of its discretion. State v. Mitchell, 8 Conn. App. 598, 604, 513 A.2d 1268, cert. denied, 201 Conn. 810, 516 A.2d 887 (1986). This court must make every reasonable presumption in favor of the trial court’s action in determining whether that court abused its discretion. Id.

Our review of the record indicates that the trial court in the case at hand did not abuse its discretion by refusing to extend the statutory period within which the defendant could file its motion to correct. The defendant had already been given an opportunity to file posthearing findings of fact with the attorney trial referee and had neglected to do so. Consequently, this was the second time that the defendant missed an opportunity to put the findings of fact in an acceptable format. Further, counsel admitted that he was in town and available to draw the motion to correct within the time prescribed by Practice Book § 438. “A litigant cannot wholly ignore established procedures for the protection of its rights . . . and hope to receive on appeal the same treatment accorded to those who follow the rules of practice.” Seal Audio, Inc. v. Bozak, Inc., supra, 518.

The defendant’s final claim is that the trial court erred when it accepted the referee’s report without considering the defendant’s objections.

In spite of the defendant’s assertion that it was not given the opportunity to argue whether the state trial referee had erred in his ruling, the resolution of his claims belies this assertion. It is clear from the record before us that the defendant was given ample opportunity to utilize the standard procedural remedies available to it, but neglected to pursue the proper avenues to present its claim.

There is no error.

In this opinion the other judges concurred.

       The defendant also claims that the trial court erred when it failed to decide and grant the defendant’s motion for mistrial. When the defendant filed this motion it asserted that a mistrial should have been granted because portions of the hearing transcripts were missing and the court could not render a decision without a complete record of the hearing. At oral argument before this court, however, the parties agreed that no portion of the transcript had ever been missing. Therefore, this claim of error raises a moot point and need not be addressed in our decision today.

       This was a purely gratuitous stipulation in light of the fact that attorney trial referees, who do not have the power to render judgments, are exempt from the 120 day time restraint. See Kowalsky Property, Inc. v. Sherwin Williams Co., 7 Conn. App. 136, 140, 508 A.2d 43 (1986).