text:
    State of Connecticut v. Paul W. Fox
    (7736)
    Cretella, Corrigan and Damiani, Js.

      Argued April 19
    decision released July 24, 1990

      Richard R. Brown, with whom, on the brief, was Eric R. Gaynor, for the appellant (defendant).

      Susan C. Marks, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and John Malone, assistant state’s attorney, for the appellee (state).
   Cretella, J.

The defendant appeals after a jury trial from judgment of conviction of (1) attempt to commit larceny by extortion in violation of General Statutes §§ 53a-49 and 53a-122 (a) (1), (2) conspiracy to commit larceny by extortion in violation of General Statutes §§ 53a-48 and 53a-122 (a) (1), and (3) attempt to commit bribe receiving by solicitation in violation of General Statutes §§ 53a-49 and 53a-148. The defendant claims that the court should not have denied his motion for judgment of acquittal because of the insufficiency of the evidence to support his conviction of any of the charges. He also claims that the imposition of special conditions of probation without a hearing deprived him of due process.

The defendant and Edward T. Lynch were tried together. Lynch was charged, tried and convicted of the same offenses as the defendant except for bribery by solicitation for which he was not charged. Lynch also appealed to this court, claiming, among other things, that the evidence was not sufficient to convict him. We affirmed his conviction. State v. Lynch, 21 Conn. App. 386, 574 A.2d 230 (1990). The facts that provide a background for the present appeal are fully expounded in State v. Lynch, supra, and will not be set forth here except as relevant to the defendant’s claims.

I

The defendant’s first claim is that the evidence against him was insufficient. “ ‘When an appeal challenges the sufficiency of the evidence to justify a verdict of guilty, we have a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the verdict. . . . We then determine whether the “ ‘jury could have reasonably concluded, upon the facts established and the inferences drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ . . .” ’ ” (Citations omitted.) State v. Carpenter, 214 Conn. 77, 78-79, 570 A.2d 203 (1990).

A

At trial, the state had the burden to prove beyond a reasonable doubt the elements of criminal attempt to commit larceny by extortion.

The defendant claims that the evidence was insufficient to prove (1) that his conduct instilled a fear in the intended victim, James O. Wood, that he would abuse his public position to the detriment of Wood, (2) that the brokerage commission the defendant sought to obtain was “property” of Wood, and (3) that the defendant attempted to abuse his position as a public servant.

The state produced ample evidence for the jury to conclude that the defendant attempted to instill in Wood a fear that if he refused to share a brokerage commission with the defendant and Lynch, then the defendant would use his position as Enfield’s town planner to the detriment of Wood.

From the evidence presented, the jurors could have reasonably made the following conclusions of fact. The defendant’s duties as town planner included serving as a liaison between the town planning and zoning commission and the zoning board of appeals. In this capacity, he would review the applications pending before the commission and prepare reports for the commission’s review. A former chairman of the zoning board testified that any board member could call the defendant for advice on zoning matters, that the only way to make a fair decision was through the information the defendant provided, and that the defendant was regarded as knowing the applicable zoning ordinances and regulations better than anyone else.

In 1982, Wood was attempting to broker a sale of an old mill complex in Enfield between the owner, Martin Levitz, and a developer and potential buyer, Mario Mozzillo. Because the mill was in an industrial zone, Wood met with the defendant and the director of planning and development at Enfield’s town hall to determine how the town would view rezoning the mill for residential and retail uses. The defendant admitted on cross-examination that zoning changes would have been necessary to convert the mill complex into housing.

On July 2,1982, Wood told the defendant that Mozzillo had offered $900,000 for the mill. The defendant then asked Wood to attend a meeting at Lynch’s office in Suffield that same afternoon. The defendant, Lynch and Lynch’s son-in-law were at the office when Wood arrived. Levitz arrived later. The meeting occurred in a small conference room.

The defendant conducted the meeting. He reviewed the status of the negotiations between Levitz and Mozzillo, and then said to Wood, “Jim, the only way that you’re going to get this transaction through Town Planning and Zoning in Enfield, is to co-broke this commission with Ed Lynch and Ed Lynch, in turn, will take care of me.” Later in the meeting, Lynch said that “there would be nothing that would be expected, if the course of the deal didn’t go through.”

The defendant argues that the absence of the element of fear was evidenced by the response that Wood made at the meeting. Wood stated that he did not “believe what [he] was hearing.” The defendant characterizes this as a statement of fact, i.e., Wood did not believe what the defendant had said. From this, he argues that the jury could not reasonably infer that Wood feared that he would abuse his public position to Wood’s detriment. The jury, however, could have reasonably found that Wood’s response was simply an expression of astonishment at the defendant’s conduct. As to whether he attempted to instill fear in Wood, his remarks at the July 2 meeting speak for themselves.

The defendant claims that there was no evidence to show that the $27,000 commission, which Wood expected to receive if the sale of the mill was consummated, was “property” within the definition of extortion in General Statutes § 53a-119 (5). General Statutes § 53a-118 (a) (1) defines property as “any money, personal property, real property, thing in action, evidence of debt or contract, or article of value of any kind.” The defendant argues that because Wood had not yet earned his commission, he did not have property that could be extorted from him. This same argument was considered and rejected in State v. Lynch, supra. There we stated that the argument “cannot succeed because it fails to recognize the distinction between the actual commission of a crime and an attempt or conspiracy to commit that crime. . . . Because both attempt and conspiracy are inchoate crimes, the fact that Wood had not yet earned his commission is irrelevant.” Id., 403.

The defendant claims that there was no evidence that the defendant attempted to abuse his position as a public servant. We reject that claim. There was no evidence that Lynch was involved in the prospective deal between Levitz and Mozzillo. Mozzillo did not even know Lynch. The defendant had no open listing with Levitz and no involvement as a real estate agent with the property at the time of the meeting. In State v. Lynch, supra, 398, we stated, “[t]he defendant had no nexus whatsoever with the Mozzillo offer to buy, and, therefore, could not have had any legal expectation of a commission arising from a purchase by Mozzillo.”

Under these circumstances, the jury could reasonably have concluded that Lynch and the defendant had no right to a commission from the sale and that, at the meeting, the defendant was attempting to use the threat of his influence among the Enfield zoning officials to coerce Wood into agreeing to share a commission. Whether the defendant took substantial steps actually to abuse his position of influence is irrelevant. He attempted to instill in Wood a fear that he would abuse his position if the commission was not shared.

B

The defendant argues that the state failed to produce evidence sufficient to prove that the defendant had conspired with Lynch to commit larceny by extortion. The defendant and Lynch were tried together. The state presented the same evidence against both men to prove the existence of a conspiracy. In State v. Lynch, supra, we held that that evidence was sufficient to allow the jury reasonably to infer the existence of a conspiracy. We therefore reject the defendant’s claim.

C

The defendant’s final attack on the evidence concerns his conviction for criminal attempt to commit bribe receiving by solicitation. General Statutes § 53a-148 (a) provides that “[a] public servant . . . is guilty of bribe receiving if he solicits, accepts or agrees to accept from another any benefit for, because of, or as consideration for his decision, opinion, recommendation or vote.” The defendant states that there is no evidence that he “had the power as Town Planner to recommend the passage or nonpassage of any matter before [the planning and zoning commission].” Taking this statement as true, it would not entitle the defendant to an acquittal. “It is immaterial and no defense that the [public servant] had no authority to take the action desired by the bribe [solicited]. The offense of bribery may be committed although the [public servant] in question does not have the authority to do or refrain from doing the act to which the bribe relates, as long as the [public servant] purported to act in his official capacity.” State v. Carr, 172 Conn. 458, 468, 374 A.2d 1107 (1977). Moreover, contrary to the defendant’s contention, there was ample evidence from which the jury could reasonably have concluded that the defendant, in fact, had a great deal of influence on the decisions of the zoning commission.

Two former members of the commission testified that the defendant, as town planner, supplied commission members with zoning information from which they would make their determinations. One of them, Arthur Cote, testified that commission members would often ask the defendant how to interpret zoning ordinances. The other former member, Gerald Legault, stated that one function of the town planner is to advise the commission on “overall planning and planning theory.” He testified that the defendant would have discussions with the commission and make recommendations such as, “You can’t do that. The zoning law doesn’t allow you to do that type of thing.” He further stated that he could not recall an instance in which the commission went against the defendant’s advice. Legault explained that the commission relied on the defendant for advice because the members were all part-time volunteers who did not have the defendant’s education. He said the defendant knew the zoning ordinances better than anyone on the commission.

General Statutes § 53a-146 (3) defines a “[pjublic servant” as any “officer or employee of government, elected or appointed, and any person participating as adviser, consultant or otherwise, paid or unpaid, in performing a governmental function.” A public servant is guilty of bribe receiving by solicitation under General Statutes § 53a-148 if he solicits a benefit as consideration for his decision, opinion, recommendation or vote. This court has construed what constitutes a public servant’s “decision” in State v. Rado, 14 Conn. App. 322, 541 A.2d 124, cert. denied, 208 Conn. 813, 546 A.2d 282, cert. denied, 488 U.S. 927, 109 S. Ct. 311, 102 L. Ed. 2d 330 (1988). There we held that the term “decision” signifies any exercise of discretion by the public servant. Id., 329. There was ample evidence that the defendant solicited a bribe in return for a favorable recommendation to the commission.

II

At the time of sentencing, the defendant raised no concerns over the conditions of probation imposed by the court requiring that during the period of probation he was to perform 1200 hours of community service and not engage in any real estate brokerage or agency or appraisal work. He now asks on appeal that we review those conditions as a constitutional question pursuant to State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and State v. Anderson, 212 Conn. 31, 36, 561 A.2d 897 (1989). He claims (1) that the conditions are unrelated to his rehabilitation and (2) that the sentencing court lacked authority to suspend his real estate license.

This court addresses the issue of reviewability under the four guidelines of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and in so doing, concludes that no constitutional violation clearly exists and that the defendant was not deprived of a fair trial.

As to the defendant’s first claim, General Statutes § 53a-30 permits the sentencing court to order a probationer to “satisfy any . . . conditions reasonably related to his rehabilitation.” The court has broad discretion in imposing conditions. State v. Smith, 207 Conn 152, 167, 540 A.2d 679 (1988). In the present case, the special condition prohibiting the defendant from engaging in private real estate work during the period of probation was reasonably related to his rehabilitation in light of the crimes he had committed and the public service work he was to perform. The defendant presented an alternative sentencing plan according to which he would perform public service in the area of land use planning as a planner for the Northeastern Connecticut Council of Governments. Accordingly, the court’s action in setting forth the aforementioned conditions of probation falls within the inherent authority of the sentencing judge.

As to the second claim, the record reveals that the trial court did not suspend the real estate license of the defendant and that the judge merely placed a limitation on the defendant’s employment activities during the probationary period leaving any further restrictions or suspension to the appropriate administrative authorities. Although the trial court specifically noted that the defendant’s real estate license was not suspended, the Superior Court clerk entered a judgment stating that the license was suspended during the period of probation.

The judgment is affirmed and the case is remanded with direction to the clerk to delete from the judgment that language referring to the suspension of the defendant’s real estate license.

In this opinion the other judges concurred.

       “A person obtains property by extortion when he compels or induces another person to deliver such property to himself or a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will . . . (H) use or abuse his position as a public servant by performing some act within or related to his official duties, or by failing ór refusing to perform an official duty, in such manner as to affect some person adversely . . . General Statutes § 53a-119 (5).
      “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.” General Statutes § 53a-49 (a).


source: Caselaw Access Project

author: Lavery, J.

license: Public Domain

text:
    In re Benjamin C.

    (8195)
    Spallone, Daly and Lavery, Js.

      Argued April 17
    decision released July 31, 1990

      Margaret G. H. Moreau, deputy assistant public defender, with whom, on the brief, was Ann M. Guillet, assistant public defender, for the appellant (respondent).

      Bruce A. Tonkonow, state’s advocate, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Lavery, J.

The respondent, a minor, appeals from a judgment of delinquency based on one count of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a). The dispositive issue is whether the cumulative effect of the evidence was sufficient for the trial court to find the defendant guilty beyond a reasonable doubt. We disagree with the judgment of the trial court and reverse.

The trial court could reasonably have found the following facts. On January 5,1989, at approximately 4:30 p.m., two uniformed Hartford police officers were on patrol in the area of the Charter Oak Terrace housing project. The officers observed the respondent standing in front of 16 Admiral Street, an area known to the officers to be the site of frequent drug sales. The officers established a “loose” surveillance about a quarter of a block from the respondent, after observing him in an encounter with the occupants of a car that had stopped briefly. Over the course of four or five minutes, the officers observed two or three more cars approach the respondent. The occupants of each car engaged in a brief conversation with the respondent and moved on. The respondent then returned to his original location adjacent to 16 Admiral Street. The officers approached the respondent to investigate further. As they approached, the respondent bent down as if tying his shoe. One officer asked the respondent for identification, while the other officer searched the area where the respondent had been standing. The second officer discovered a brown paper bag forced under the vinyl siding of the house at 16 Admiral Street. The bag, about an inch of which was visible, contained four small plastic bags of cocaine. There were no other people in that area. After discovering the brown bag and examining the contents, the police arrested the respondent. A search of the respondent incident to that arrest yielded two $20 bills.

On appeal, the respondent claims that the cumulative effect of the evidence at trial'was insufficient to establish, beyond a reasonable doubt, that the respondent was in actual or constructive possession of illegal narcotics.

The respondent argues that the state’s case was based on inferences that lacked adequate factual support. The respondent asserts that the state failed to meet its burden of establishing beyond a reasonable doubt that the respondent knew of the presence of cocaine, knew the character of the substance, or exercised dominion or control over the substance. The respondent further asserts that in the absence of any evidence or testimony that would tend to prove that he had actual possession or exercised actual or potential control over the area where the brown bag was discovered, the factfinder had to speculate or guess at conclusions of fact in order to find him guilty.

In reviewing cases challenging the sufficiency of the evidence supporting a verdict, we must examine whether the trier of fact could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt. State v. Scielzo, 190 Conn. 191, 196, 460 A.2d 951 (1983). State v. Melillo, 17 Conn. App. 114, 117, 550 A.2d 319 (1988). When applying this standard, we construe the evidence in a manner most favorable to sustaining a verdict. State v. Bettini, 11 Conn. App. 684, 687, 528 A.2d 1180, cert. denied, 205 Conn. 804, 531 A.2d 937 (1987). Therefore, the only question before us in this case is whether, from the facts presented at trial, it was reasonable and logical for the factfinder to determine that the respondent had constructive possession of the cocaine.

To prove possession of an illegal narcotic substance, the prosecution must establish beyond a reasonable doubt that the respondent knew the character of the substance, knew of its presence and exercised dominion or control over it. State v. Parent, 8 Conn. App. 469, 473, 513 A.2d 725 (1986); see also State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985). The mere presence of the respondent in the vicinity of a narcotic substance is insufficient to support the inference of possession without some additional fact connecting him to the contraband. State v. Alfonso, supra, citing Evans v. United States, 257 F.2d 121, 128 (9th Cir.), cert. denied, 358 U.S. 866, 79 S. Ct. 98, 3 L. Ed. 2d 99 (1958).

In this case, there was no evidence, either circumstantial or direct, offered to show that the respondent had actual physical possession of the cocaine. He neither owned, controlled nor exercised dominion, actual or potential, over the general area where the brown bag was found. The bag was found under the siding of a house adjacent to a public street on which there was a history of heavy drug activity. Despite the officers’ continued surveillance of the respondent, they never observed anything in his hands, nor did they see him give anything to or receive anything from any of the occupants of the cars. The officers did not hear any conversation between the respondent and the occupants of any of the cars. They did not see the respondent place the bag under the siding, go to the bag or take anything from the bag. The officers never saw the respondent remove anything from his pocket or place anything on the ground. The record is devoid of any evidence that would allow a factfinder to infer that the respondent actually or constructively possessed the cocaine or engaged in any other drug activity!

Bending over as if to tie one’s shoe is one of those innocent gestures that can be mistaken for a guilty movement. The motivation for such an action may run the whole spectrum from the most legitimate to the most heinous. It is because of this danger that the law requires more than a mere furtive gesture to constitute probable cause for a search or arrest, let alone proof beyond a reasonable doubt for conviction. Smith v. State, 542 S.W.2d 420, 422 (Tex. Crim. App. 1976).

We have recently decided a case with a factual setting similar to the one before us today. State v. Brunori, 22 Conn. App. 431, 578 A.2d 139 (1990). In that case, the defendant was arrested on a charge of possession of narcotics and drug paraphernalia when police officers found cocaine and a hypodermic needle in the proximate area where the defendant was observed bending down. Id., 433.

In Brunori, as here, the state sought a conviction based upon the defendant’s constructive possession of the contraband without first establishing a sufficient factual nexus between the defendant and the narcotics found in a public place. In Brunori, we wrote, “[t]o mitigate the possibility that innocent persons might be prosecuted for such possessory offenses and to assure that proof exists beyond a reasonable doubt, it is essential that the state’s evidence include more than just a temporal and spatial nexus between the defendant and the contraband.” Id., 436-37.

The state cites two cases; State v. Melillo, supra, and State v. Thompson, 20 Conn. App. 290, 567 A.2d 837 (1989); to support its position that the trial court’s verdict should be sustained. Those cases are distinguishable from the present case. In both cases there was a factual nexus between the respondent and the drugs. In Melillo, the defendant was under constant surveillance while an informant made a controlled buy. In Thompson, police officers watched the defendant for two hours waving cars down, engaging in brief conversation with the driver or passenger, repeatedly bending down to retrieve something from the ground at the rear of an abandoned vehicle and exchanging items with the driver or passenger of the waiting vehicles. The police stopped one of these vehicles and the driver gave them a packet of cocaine. The officers arrested the defendant with $244 in his possession. Under the abandoned car they found cocaine. No such factual nexus existed in the present case. The officers did not see anything in the respondent’s hands, did not see the respondent exchange anything with the driver or passenger of the stopped car and did not see the respondent go to the paper bag under the vinyl siding let alone put the bag under the vinyl siding. We disagree with the trial court. There is insufficient evidence of possession to sustain the judgment of conviction.

The judgment is reversed, and the case is remanded with direction to render a judgment of acquittal.

In this opinion the other judges concurred.


author: O’Connell, J.

text:
    Evelyn B. DeMotses v. Leonard Schwartz Nissan, Inc.
    (8175)
    Spall one, O’Connell and Norcott, Js.
    Argued April 16
    decision released July 31, 1990

      Britta S. Schneider, for the appellant (plaintiff).

      James W. Shea, for the appellee (defendant).
   O’Connell, J.

This is the plaintiff’s appeal from the granting of the defendant’s motion for summary judgment. The complaint was in four counts alleging (1) breach of contract, (2) misrepresentation, (3) negligence, and (4) violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The court granted summary judgment for the defendant on all four counts. On appeal, the plaintiff limits her claim to the propriety of granting summary judgment on the CUTPA count. We reverse the judgment of the trial court.

The following facts relevant to this appeal are not in dispute. On September 16,1986, the plaintiff entered into a written contract to buy a car from the defendant. The contract was on a standard form with details of the particular sale on the front and additional boiler plate terms on the back. Among these terms was a provision whereby the buyer agreed to pay any price increases made by the manufacturer or distributor prior to delivery.

The defendant’s salesperson completed the front of the contract with details of the sale including the price. The salesperson then turned the contract around so that the plaintiff could review and sign it. At no time did the salesperson turn the contract over and review the additional printed terms on the back, nor did she bring the existence of those terms to the plaintiff’s attention. Thus, the plaintiff did not read the terms and was not aware of them prior to signing the contract.

On October 3, the defendant advised the plaintiff that there would be a $500 to $600 price increase. The plaintiff refused to pay the increase, and the defendant refused to deliver the car at the previously agreed upon price. The defendant returned the plaintiff’s deposit, and this action followed.

In granting the defendant’s motion for summary judgment, the trial court noted that the facts alleged by both parties in their supporting documents were virtually identical. The court concluded from this that the plaintiff had not met her burden of setting forth specific facts to show the existence of a genuine issue of material fact to be tried, and it rendered summary judgment for the defendant.

“ ‘Summary judgment shall be rendered if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Practice Book § 384.’ ” Lomangino v. LaChance Farms, Inc., 17 Conn. App. 436, 438, 553 A.2d 197 (1989). The court’s function is not to decide issues of material fact but instead simply to determine whether such issues exist. Id.

The defendant argues that because the facts in the plaintiff’s affidavit and other supporting materials do not contradict the evidence submitted by the defendant, there is no issue of material fact to be decided. We do not agree. While the parties have submitted virtually identical descriptions of what transpired between them, the question of whether the defendant’s conduct violated CUTPA remains undecided. Whether a practice is unfair and thus violates CUTPA is an issue of fact. See Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 238, 520 A.2d 1008 (1987).

General Statutes § 42-110b (a) provides that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” A finding of unfairness depends on “ ‘(1) [wjhether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; [and] (3) whether it causes substantial injury to consumers . . . .’ Conaway v. Prestia, [191 Conn. 484, 492-93, 464 A.2d 847 (1983)] . . . .” (Citations omitted.) McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 567-68, 473 A.2d 1185 (1984). The trial court should have left this determination to the jury. See Atlantic Richfield Co. v. Canaan Oil Co., supra, 239-40.

The issue here is analogous to a case arising out of a motor vehicle accident in which both parties agree exactly on the manner of operation of both drivers but do not agree on whether, under the circumstances then and there existing, the defendant’s operation constituted negligence. Since negligence is generally a question of fact, not law; see DeLucco v. Mott’s Super Markets, Inc., 158 Conn. 615, 616, 259 A.2d 646 (1969); summary judgment would not be appropriate in such a case. In the present case, it is apparent that the parties are not in agreement on whether the defendant’s failure to disclose and discuss the terms on the back of the contract was an unfair or deceptive practice. Therefore, the case must be remanded for a trial on the merits of the plaintiff’s CUTPA claim.

The judgment is reversed as to the plaintiff’s claim under CUTPA and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       A plaintiff does not have to satisfy all three criteria in order to show that a practice is unfair. McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 569 n.15, 473 A.2d 1185 (1984).


author: Landau, J.

text:
    Connecticut National Bank v. N. E. Owen II, Inc., et al.
    (8372)
    Dupont, C. J., Lavery and Landau, Js.
    Argued May 1
    decision released July 31, 1990

      James M. Nugent, for the appellants (defendants).

      Stephen W. Aronson, with whom, on the brief, was Marc S. Edrich, for the appellee (plaintiff).
   Landau, J.

The defendants appeal from the judgment of strict foreclosure rendered by the trial court for the plaintiff Connecticut National Bank (CNB). The defendants claim that the trial court (1) incorrectly determined the amount of the debt, (2) improperly denied their motion to open the judgment of strict foreclosure, and (3) awarded an incorrect amount of attorney’s fees to CNB. We affirm the trial court’s judgment.

The following facts are relevant to this appeal. On October 14, 1987, CNB commenced an action to foreclose a mortgage granted by the named defendant on certain real property to secure a $997,919.67 variable rate promissory note. The defendants were defaulted for failing to disclose a defense.

On July 17, 1989, CNB’s motion for judgment of strict foreclosure was heard. At that hearing, the bank submitted an affidavit of debt to the court stating that the amount of the defendants’ debt was $1,268,074. This amount included the entire face value of the note, as there had been no principal repayments, as well as accrued interest, late charges and an appraisal fee. The affidavit of debt listed accrued interest as a single lump sum amount of $233,306.41, and contained no supplemental information showing the various interest rates that were in effect during the life of the loan, and the time periods for which those rates were applied against the outstanding principal. The note provided for interest to be payable monthly at a rate of 2 percent over CNB’s base rate as well as late charges in the event of delinquent payments.

The defendants opposed the submission of the bank’s affidavit of debt because they did not receive any documentation verifying that the interest rates actually changed on the dates claimed by the bank. The defendants indicated, however, that a hearing on this matter was unnecessary. The defendants instead stipulated that they would consent to a finding of the amount of the debt stated in the affidavit, provided that CNB would timely provide them with the rate change documentation. On the basis of the parties’ stipulation and the affidavit of debt, the trial court found the amount of the debt to be that stated in the affidavit, namely, $1,268,074.

CNB also requested an award of $25,000 as reasonable attorney’s fees. In support of its request, the bank submitted an affidavit of attorney’s fees and itemized billing statements. Further, CNB explained to the court the history of the loan and its repeated attempts to refinance this and other Owen family loans. The defendants, while not objecting to an award of attorney’s fees, argued that the amount should be “substantially less” than that requested. The court awarded reasonable attorney’s fees in the amount of $17,500, and thereafter granted CNB’s motion for judgment of strict foreclosure.

Subsequent to this hearing, CNB provided the defendants with documentation that showed the specific time periods for which the various rates of interest were in effect, but did not provide the defendants with copies of internal bank memoranda showing the authorization for the interest rate changes.

On August 21,1989, the defendants’ motion to open the judgment was heard. The defendants asserted that the judgment of strict foreclosure should be opened because CNB failed to provide them with the agreed upon documentation. CNB’s counsel represented to the court that the requested information concerning authorizations does not exist, and submitted an affidavit prepared by a bank officer to that effect. The court denied the defendant’s motion. This appeal followed.

I

The defendants first claim that the trial court incorrectly calculated the plaintiff’s debt. Relying on Burritt Mutual Savings Bank of New Britain v. Tucker, 183 Conn. 369, 439 A.2d 396 (1981), the defendants contend that the court should not have relied on the affidavit of debt in finding the amount of the debt once they had raised a defense as to that amount. We disagree.

It is true that the plaintiff has the burden of proof to establish any allegations that are denied by the defendant. Streicher v. Resch, 20 Conn. App. 714, 716, 570 A.2d 230 (1990). It is also true that in a mortgage foreclosure action, a fundamental allegation that must be proved by the plaintiff is the amount of the debt. See D. Caron, Connecticut Foreclosures (2d Ed.) § 5.02A2. A hearing to present evidence on the amount of the debt may not be required, however, if a summary procedure is employed pursuant to Practice Book § 527. Under this rule, the plaintiff mortgagee need not present witnesses to testify as the amount of the debt, but may instead submit certain documents to the court, including the original note and mortgage together with an affidavit stating the amount due. Significantly, § 527 can be utilized by the plaintiff mortgagee only “where no defense as to the amount of the mortgage debt is interposed” by the defendant mortgagor. See footnote 7, infra.

A defense is “[t]hat which is offered and alleged by a party proceeded against in an action or suit, as a reason in law or fact why the plaintiff should not recover or establish what he seeks. . . .” Black’s Law Dictionary (5th Ed.). In a mortgage foreclosure action, a defense to the amount of the debt must be based on some articulated legal reason or fact. See, e.g., Burritt Mutual Savings Bank of New Britain v. Tucker, supra, 374-75 (where defendant claimed that mortgage debt was inaccurately computed, that the bank waived late charges and that certain amounts had been advanced for taxes).

We conclude that a mere claim of insufficient knowledge as to the correctness of the amount stated in the affidavit of debt is not a defense for purposes of § 527. To allow an insufficient knowledge claim to rise to the level of a defense would remove any incentive for the mortgagor to gather facts during the discovery process or to keep records. A defendant mortgagor should not be able to use a hearing on a motion for judgment of foreclosure to accomplish what he should have done previously through interrogatories or a deposition.

Further, it does not escape appellate scrutiny that after the plaintiff filed a demand for disclosure of defenses, the defendants, on January 19, 1988, were defaulted for failure to disclose. We can discern no reason for allowing the defendants to claim, some eighteen months later, in a hearing on the motion for judgment of foreclosure that they do in fact have a defense, especially when their claim is merely that they have insufficient information.

In addition, when a defendant mortgagor stipulates to the amount of the indebtedness, he is ordinarily barred from later contesting it. A stipulation is generally dispositive of that issue. Cf. Westco Corporation v. AMK Construction Co., 1 Conn. App. 521, 523, 473 A.2d 340, cert. denied, 193 Conn. 803, 475 A.2d 1104 (1984) (issue concerning the interpretation of an agreement completely resolved by factual stipulation of the parties). A stipulation is a contract, and, as such, the construction of that contract is controlled by the parties’ intent. Albert Mendel & Sons, Inc. v. Krough, 4 Conn. App. 117, 122-23, 503 A.2d 624 (1985). Contractual intent is a question of fact and our review is limited to whether the trial court’s finding of intent was clearly erroneous. Id., 123-24.

At the July 17 hearing, an exchange between counsel occurred before the court in which the defendants consented to the amount of debt as stated in the affidavit subject to the plaintiff’s providing supporting documentation. In view of the clear and unambiguous language of this parol stipulation, and the subsequent explanation to the court by the plaintiff’s counsel on August 21 that the information requested by the defendants was nonexistent, the court was correct in concluding that the defendants were bound by the stipulation.

Finally, the defendants’ reliance on Burritt Mutual Savings Bank of New Britain v. Tucker, supra, is misplaced. In Burritt, because the defendant had clearly interposed a defense concerning the amount of the mortgage debt, the court improperly used the § 527 summary procedure in relying on the affidavit of debt. Here, the defendants have failed to articulate any defense to the indebtedness. In sum, because the defendants failed to interpose a defense to the foreclosure action, the court properly used the summary procedure of § 527 to rely upon CNB’s affidavit of debt, and, further, we see no reason to allow the defendants to avoid their stipulation as to the debt.

II

The defendants’ next claim is that the court improperly denied their motion to open the judgment. They argue that, because the subject documentation was not provided, there is reasonable cause for opening the judgment and a good defense exists as to the accuracy and determination of the debt. We disagree.

Under General Statutes § 49-15, a motion to open judgment of strict foreclosure is addressed to the discretion of the trial court. Melillo v. Spiro, 187 Conn. 333, 334, 445 A.2d 921 (1982). Unless the movant demonstrates an abuse of discretion or some error of law, the denial of the motion must stand. Id.

The defendants here have failed to show that the trial court abused its discretion or committed an error of law. The defendants never asserted a defense with regard to the debt prior to the rendering of the judgment of strict foreclosure. Therefore, any claim that they had a good defense to open that judgment and challenge the amount of the debt is equally without merit.

Ill

The defendants’ final claim is that the court awarded an incorrect amount of attorney’s fees to the plaintiff. They claim that there was an insufficient evidentiary foundation for the $17,500 award of attorney’s fees because there was no basis on which the total attorney’s fees incurred by CNB with regard to the entire Owen lending relationship could be allocated to the mortgage note that is the subject of the present foreclosure action. We disagree.

CNB submitted a detailed itemized twenty-five page bill accounting for $47,265 that particularized the time and nature of legal services rendered by its counsel in connection with all of the Owen family loans, the combined total of which exceeded two million dollars. Accompanying this accounting was a statement prepared by counsel that attributed $25,000 to the note that is the subject of the foreclosure action. After a hearing on the attorney’s fees, the court reduced that amount by $7500, allowing $17,500 as a reasonable fee. The note executed by the named defendant stated that it was responsible for “all costs, expenses and attorney’s fees incurred in any action to collect this Note or to foreclose any mortgage, or other agreement securing this Note or in protecting or sustaining the lien of such mortgage, or other agreement or in any litigation or controversy arising from or connected with said mortgage, or other agreement of this Note.”

Where a contract provides for the payment of attorney’s fees by a defaulting party, those fees are recoverable solely as a contract right. Litton Industries Credit Corporation v. Catanuto, 175 Conn. 69, 76, 394 A.2d 191 (1978). Therefore, the language of the note governs the award of fees, and we need not consider General Statutes § 52-249 (allowance of reasonable attorney’s fees in a foreclosure action). Such “attorney’s fees incurred” language has been interpreted by our Supreme Court in Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 245-46, 440 A.2d 306 (1982), as permitting recovery “upon the presentation of an attorney’s bill, so long as that bill is not unreasonable upon its face and has not been shown to be unreasonable by countervailing evidence or by the exercise of the trier’s own expert judgment.” See also Crest Plumbing & Heating Co. v. DiLoreto, 12 Conn. App. 468, 480-81, 531 A.2d 177 (1987).

While the defendants excepted to the court’s award of $17,500, they never asked the court for an articulation of that award. There is no dispute regarding the documentation of the entire bill. Rather, the defendants contend that the allocation of that total amount to the subject note was arbitrary. Given the sparse record regarding the court’s decision to award $17,500, and the fact that this note is approximately one half of the total outstanding Owen family loans, we cannot say, in light of Storm Associates, Inc., that the court abused its discretion in awarding this amount. See Hoenig v. Lubetkin, 137 Conn. 516, 525, 79 A.2d 278 (1951).

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are the named defendant, Nicholas E. Owen II, Richard Owen, Joseph Owen and Edmond Owen, Sr. The named defendant executed a mortgage, which is the subject of the present foreclosure, to secure a note. The remaining defendants executed certain guaranty agreements and were sued by CNB in their capacity as guarantors of the note.

       CNB also sought to recover against the various guarantors of the note. See footnote 1, supra.

       We note that the judgment file states:
      “The Court . . . finds . . . the sum of $1,285,574.00, which sum includes an attorney’s fee of $17,500.00, is due the plaintiff on the debt . . . and that the plaintiff, as items of cost, is entitled to an appraisal fee of $1,300.00 . . . .” The appraisal fee apparently was awarded to the plaintiff twice. Because the defendants did not raise any such claim before this court, and because we can make no definitive determination as to this issue, we will not disturb the trial court’s finding.

       Defendants' Counsel: “For the record, all I’m looking for is some kind of notification within the bank, showing that the rates changed on particular dates. And that’s it. And it’s fine and well for him to give me a computer printout, saying this is the computer. It still doesn’t answer my question. . . . [T]he bank is required to have a printout or a writing, indicating to all of its customers as to the change of rates at a particular time. And if that documentation, which is maybe a dozen or so of those, are provided, then we don’t have to have a hearing.”
      See also footnote 5, infra.

       Defendants’ Counsel: “I need something, some documentation as to the fact that these rates changed on the dates they claim they’ve been changed. That’s it. I don’t have to hear anyone testify. All he has to do is furnish me with internal memos or whatever they do, telling me that the rates changed. I don’t have to have a hearing. ” (Emphasis added.)

       Plaintiff’s Counsel: “Your Honor, as I understand the stipulation was that we were to provide any hard document as to the interest rate changes. That’s what they were requesting—whether or not the rates had changed as they said, and there is no such documentation. We live in a computer age. These things are done by computer. There is not a hard document that’s produced every time the base interest rate changes.
      “We did send to counsel a printout of the change [oq the document and they have got that document which we submit. That document which we submitted complies with what the court ordered as documentation.
      “I handed counsel an affidavit, and I’ll submit one to Your Honor, from the office in the bank that sets the interest rate changes which basically says what I have just told you, which is that there is no hard document; it is done by computer and by telephone calls within the banks.”

       Practice Book § 527 provides that “[i]n any action to foreclose a mortgage where no defense as to the amount of the mortgage debt is interposed, such debt may be proved by presenting to the court the original note and mortgage, together with the affidavit of the plaintiff or other person familiar with the indebtedness, stating what amount, including interest to the date of the hearing, is due, and that there is no setoff or counterclaim thereto.” (Emphasis added.)

       “[The Court]: Okay. Where do we stand, gentlemen?
      “[Plaintiff’s Counsel]: Where we stand, Your Honor, is Attorney Charmoy has indicated that he would agree to allow a finding of the debt today, subject to my providing him with the documentation to support that within, what, two weeks?
      “[Defendants’ Counsel]: I would think two weeks. You’ll send a copy to the court and a copy to me?
      “[Plaintiff’s Counsel]: Yes.
      “[Defendants’ Counsel]: All right. And if I don’t get the documentation, then I’ll have to move to reopen.
      “[The Court]: So the debt is as reflected in the affidavit which is one million, two hundred sixty-eight thousand, seventy-four dollars.”
      “[Defendants’ Counsel]: Provided that, again, that documentation is not received from two weeks from today, that the court reopen the judgment.
      “[Plaintiffs Counsel]: We would have no objections to a motion to reopen on that basis.
      “[The Court]: All right. What else do we have to address at this point?”

       General Statutes § 49-15 provides in pertinent part that “[a]ny judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the same, upon the written motion of any person having an interest therein, and for cause shown, be opened and modified, notwithstanding the limitation imposed by section 52-212a, upon such terms as to costs as the court deems reasonable . . . .”


author: Foti, J.

text:
    State of Connecticut v. Willie Johnson
    (8024)
    Spallone, O’Connell and Foti, Js.

      Argued February 2
    decision released July 31, 1990

      Jeremiah Donovan, special public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Patrick J. Clifford, assistant state’s attorney, for the appellee (state).
   Foti, J.

After a jury trial, the defendant was convicted of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) and unlawful restraint in the first degree in violation of General Statutes § 53a-95. In his appeal, the defendant claims that the trial court (1) should have suppressed identifications of the defendant, (2) should have charged on general intent to commit sexual assault in the first degree, and (3) should have ordered a second competency examination. We affirm the trial court’s judgment.

The jury could have found the following facts from the evidence adduced at trial. At approximately 3 a.m. on June 6, 1987, the victim left her residence at the Pond Lilly Motel in New Haven, crossed Whalley Avenue, and purchased cigarettes at a twenty-four hour gasoline station. As she crossed the street again to return to the motel, she saw the defendant parked in front of the motel in a white Chevrolet. She recognized him, but could not remember his name. She approached the car and asked the defendant for a ride to the Brook-side housing project. She wanted to visit her sister there and pick up money for milk and diapers. As the victim entered the white Chevrolet she noticed that it was a four door vehicle, with a plastic window on the driver’s side and bucket seats.

En route to the housing project, the defendant pulled off the road into a secluded driveway, turned off the car lights and ignition. He told the victim to take his penis out of his pants. She refused and, as a ploy, suggested that they return to the motel where she knew her friends would help her fend him off. The defendant then opened his fly, took out his penis and demanded that the victim perform fellatio. When she refused, he threatened that he would pick up something and hit her if she did not cooperate. The victim complied with his commands for a short time and then attempted to leave the car. The defendant grabbed her, ripped her coat, prevented her from leaving the car, and ordered her to continue. The victim then performed fellatio until the defendant ejaculated.

The defendant then drove a short distance and ordered the victim out of the car. She complied and wrote down the car’s license plate number as the defendant drove away. She then walked to Whalley Avenue where she was picked up by a friend who was driving a cab. After she related the events to the cabdriver, he radioed his dispatcher. The dispatcher, in turn, called the New Haven police and arranged for the driver to bring the victim to the parking lot of Chucky’s, a twenty-four hour food store, to meet with the police. Within a short time, Detectives Leonard Pastore and Everett Nichols arrived at Chucky’s in an unmarked car and Officer Joseph Streeto arrived in a patrol car. The victim was very distraught, but was able to give the officers the license plate number and a description of the white Chevrolet, and a physical description of her assailant including the fact that he was wearing jeans, a tan shirt and a maroon baseball cap when he assaulted her.

Streeto checked the license plate number the victim had given him and found that it was registered to Toya Cummings of West Ivy Street, New Haven. He drove to West Ivy Street in the police car and located a white Chevrolet with a plastic window on the driver’s side and bearing the license number given to him by the victim.

Pastore and Nichols took the victim to the scene of the crime. They then joined Streeto on West Ivy Street where the victim identified the white Chevrolet as the car in which she was assaulted. She remained in the unmarked police car with Nichols while Streeto and Pastore located Toya Cummings at 284 West Ivy Street.

Cummings opened her door to the police and confirmed that she owned the car in question. The defendant, who had been in the shower, came to the door clad only in a towel. The officers informed Cummings and the defendant that the car had been used within the last hour by the perpetrator of a sexual assault. The defendant admitted that he had used the car until about 6 p.m. the night before. When Streeto and Pastore asked the defendant to step outside the' house, he put jeans on and voluntarily complied with their request. He willingly followed the officers to within twenty feet of the unmarked police car that held the victim. The victim identified him as her assailant and he was placed under arrest.

With Cummings’ consent, the police then searched the house at 284 West Ivy Street and seized a shirt and a maroon hat. These items were later identified by the victim as those worn by her assailant.

I

The defendant first claims that the trial court should have granted his motion to suppress the victim’s on the street and in-court identifications. He asserts that the show-up was impermissibly suggestive, that the court did not conduct a suppression hearing outside the presence of the jury, that the in-court identification was compromised by the suggestiveness of the prior identification, and that the identifications should have been suppressed as the tainted fruit of an illegal arrest.

The record discloses that the defendant filed three motions to suppress on June 29, 1987, addressed to statements, items and identification. The record further discloses that on July 6,1987, the court, Ronan, J., deferred these motions to the time of trial pursuant to Practice Book § 813. At trial, the defendant neither claimed his motion to suppress the identifications nor objected to the state’s admission of the out-of-court identification into evidence. Although this claim was not raised at trial, we will review the defendant’s claim under the bypass doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); see also State v. Golding, 213 Conn. 233, 240, 567 A.2d 823 (1989).

Our Supreme Court has stated that it “has adopted a two-pronged inquiry in determining whether identification procedures have violated a defendant’s due process rights. First, we address whether the identification procedure was unnecessarily suggestive. If so, the second question becomes whether the identification was nevertheless reliable based on the ‘totality of the circumstances.’ ’’ State v. Mitchell, 204 Conn. 187, 201, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987).

A

ON THE STREET SHOW-UP

An identification based on a one-on-one confrontation between a victim and a suspect who is presented by the police has been found to be “inherently and significantly suggestive; State v. Middleton, 170 Conn. 601, 608, 368 A.2d 66 (1976); because it conveys the message that the police have reason to believe the suspect [is] guilty. State v. Willin, 177 Conn. 248, 251, 413 A.2d 829 (1979).” State v. Maturo, 188 Conn. 591, 595-96, 452 A.2d 642 (1982). Applying this standard to the present case leads us to conclude that the identification procedure employed in this case was presumptively suggestive. Our inquiry does not end here, however. “Upon finding suggestive circumstances, court’s have then asked whether such circumstances were impermissible or unnecessary.” State v. Mitchell, supra. Prompt on the scene confrontations, under some circumstances, ensure accurate identification. In addition, promptness may aid reliability and allow for the quick release of an innocent person when no positive identification is made. This permits the police quickly to resume their investigation with only a minimum of delay. State v. Barnes, 16 Conn. App. 333, 344, 547 A.2d 584 (1988); State v. DeJesus, 7 Conn. App. 309, 315-16, 508 A.2d 463 (1986).

The roadside identification in this case occurred within one hour of the sexual assault. Although the defendant matched the description of the assailant and admitted that he had driven the car earlier that night, the police could not have been certain he was the perpetrator without arranging the show-up. It was important for the police to determine quickly whether the defendant was the assailant, or whether they should continue their investigation. Under these circumstances, we cannot conclude that the show-up was impermissibly or unnecessarily suggestive. See State v. Hamele, 188 Conn. 372, 377-78, 449 A.2d 1020 (1982).

Even if we were to find that the show-up was impermissibly suggestive, the challenged identification was nonetheless admissible under the second prong of the test set out in State v. Mitchell, supra, i.e., the reliability of the identification. The factors to be considered for this second prong of our inquiry include the opportunity of the victim to view the perpetrator at the time of the crime, her degree of attention, the accuracy of her prior description of him, the level of certainty she showed at the one-on-one confrontation, and the time that elapsed between the crime and the confrontation. Id., 202; State v. Hamele, supra, 378.

The victim in the present case had ample opportunity to view the defendant. She was the focus of the crime.. She recognized the defendant as a former acquaintance. Because of the nature of the crime, she had an ample opportunity to observe the defendant, and, consequently, she was able to give an accurate description of both his physical appearance and the car he drove. In addition, she was not hesitant in her identification and the time between the incident and the identification was less than one hour.

Viewing the totality of circumstances in this case, we conclude that the trial court properly allowed the identification testimony to come before the jury.

The defendant also contends that the show-up or one-on-one confrontation should have been suppressed as the fruit of an unlawful arrest. Because the defendant has provided us with an inadequate record to establish that the arrest was unlawful, we decline to review this claim. State v. Anderson, 209 Conn. 622, 633, 533 A.2d 589 (1989).

B

IN-COURT IDENTIFICATION

The defendant further contends that the victim’s in-court identification of the defendant was impermissibly suggestive for two reasons. First, he asserts that the in-court identification was fatally compromised by the victim’s participation in an unnecessarily suggestive show-up. In light of our holding above that the out-of-court identification was neither impermissibly suggestive nor unreliable, we must now conclude that the in-court identification did not deprive the defendant of his due process rights. State v. Piskorski, 177 Conn. 677, 745, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979).

The defendant next asserts that the in-court identification was impermissibly suggestive because he was the only black male in the courtroom at the time. The record before us does not reflect this fact. Therefore, we decline to review this claim. State v. Anderson, supra, 634.

II

The defendant claims that the court should have instructed the jury on the requisite intent of the crime of sexual assault in the first degree. Although he acknowledged that sexual assault in the first degree is a general intent crime; see State v. Rothenberg, 195 Conn. 253, 258 n.4, 487 A.2d 545 (1985); he contends that the court should have instructed on general intent after explaining the elements of the crime charged. He asserts that the jury could have found that he did the acts he was accused of by accident, mistake, or some other innocent reason.

As the defendant agreed during oral argument before this court, the controlling case on this question is State v. Pierson, 201 Conn. 211, 514 A.2d 724 (1986). In Pier-son, our Supreme Court held that no special instructions as to intent are required for a general intent crime unless something in the evidence presented indicates that the defendant acted involuntarily, without sufficient mental capacity, under duress or while entrapped. State v. Pierson, supra, 218.

The defendant argues that the jury should have been instructed that it was necessary to find that he acted voluntarily. He asserts that the victim’s testimony indicated only that she feared he might hit her if she did not comply with his demands. He further contends that this testimony was ambiguous and could have led the jury to believe that she was not compelled by force to perform fellatio, but rather did so voluntarily. We do not agree.

The evidence presented at trial showed that the victim said “No” twice, that she was threatened with force if she did not comply, that force was actually used on her when she attempted to leave the car, and that the defendant prevented her flight by grabbing and ripping her coat. No evidence was presented at trial to show that the defendant’s conduct was involuntary. Thus, there was no need for the trial court to instruct the jury that the defendant’s actions may have been involuntary.

Ill

The defendant’s final claim is that the court should have granted his motion for a further competency examination.

Certain additional facts are relevant to the resolution of this claim. On August 15, 1988, during the course of jury selection, a request was made by defense counsel for a competency examination pursuant to General Statutes § 54-56d. It was represented that the defendant was periodically unable to remain calm and assist in his defense for several hours at a time, that he made irrational statements, such as demanding to be put in the electric chair, that he expressed an intention to call 5000 character witnesses to testify, and that he was in need of medication and hospitalization. The trial court granted the motion. The examination report concluded that the defendant understood the nature of the charges against him and was capable of aiding in his defense. The report indicated that despite a relationship of conflict with his current lawyer the defendant had worked cooperatively in the past with counsel and retained the capacity to assist in his defense. The report added that the defendant’s loss of control and threatened violent behavior could be attributed to his active cocaine abuse, and that he could be cooperative and cogent in a drug free environment. In addition, the report noted that his girl friend had commented that he had a “bad temper with or without cocaine . . . .”

On October 6, 1988, defense counsel waived a competency hearing stating that she had read the report and agreed that the defendant was presently competent to stand trial. The defendant added that he had always been competent. The court found the defendant competent to stand trial.

On October 7, 1988, defense counsel informed the court that the defendant wanted a different lawyer. Following a continuance to allow counsel to consult with the defendant, the defendant refused to return to the courtroom. It was reported by the sheriff that the defendant had been belligerent and loud but had issued no threats, and was now calm. Finally, the defendant indicated that he had decided not to replace his attorney for the moment.

On October 13,1988, during a bond reduction hearing, the defendant informed the court that he could no longer communicate with his lawyer because of the bittemess that had arisen between them. After jury selection resumed, the defendant, speaking through counsel, informed the court that he felt ill and could not continue for the day because of an adverse reaction to an antidepressant ding, Desyrel, which he had received from the department of correction to calm his nervousness. The trial court observed the defendant reading documents and consulting with his attorney, and so concluded that he had the ability to concentrate. The court added that correction department officials should be contacted to ensure that the defendant was receiving the correct dosage of the antidepressant drug.

When trial resumed the following day, defense counsel moved for a second competency examination asserting that the defendant was currently incapable of assisting at trial. The trial court pointed out that the competency examination, conducted nine days earlier, did not indicate that the defendant was beset by any deep-seated psychological problems. On the basis of its reading of the competency examination report and its observation of the defendant reading police reports and conferring with his lawyer during voir dire, the court concluded that the defendant was a highly intelligent and articulate individual who was capable of understanding the nature of the charges and assisting in his defense. The court denied the defendant’s motion.

The conviction of an accused person while he is legally incompetent is violative of state and federal due process. State v. Gonzalez, 205 Conn. 673, 686, 535 A.2d 345 (1987). The defendant has the burden of showing that, at the time of the denial of his motion for competency examination, “the court had before it specific factual allegations that, if true, would constitute substantial evidence of mental impairment.” State v. Watson, 198 Conn. 598, 605, 504 A.2d 497 (1986). “The trial court should carefully weigh the need for a hearing in each case, but this is not to say that it should be available on demand. The decision to grant a hearing requires the exercise of sound judicial discretion.” State v. Lloyd, 199 Conn. 359, 366, 507 A.2d 992 (1986).

The record reveals no abuse of the trial court’s discretion, and none has been shown by the defendant. The defendant points to his “obstreperous refusal to return from a holding cell to the courtroom, of his banging on the bars of his cell, of his hostility toward his own attorney, and of his being prescribed the antidepressant Desyrel” combined with counsel’s report that he was unable to assist in his defense, as justifying a finding of incompetency. It is unclear whether the defendant’s actions showed that he was incapable of assisting in his defense, but it seems quite clear that he was unwilling to do so. He had the ability to cooperate but did not want to do so. His obstreperous, uncooperative or belligerent behavior did not obligate the court to order a competency examination, especially in view of the fact that one had been completed within the previous two weeks. The only change between the acknowledgement of competency nine days earlier and this second request was the report that the defendant had become ill and could not concentrate due to the antidepressant drug. Being on medication, in itself, does not render a person incompetent. State v. Gonzalez, supra, 688. As the trial court properly concluded, the adjustment of the defendant’s dosage was the appropriate response to his nervousness, not another competency examination.

Defense counsel’s representation that the defendant was incapable of assisting in his defense is insufficient to require a second examination, particularly where the court was in a position to view the defendant during the proceedings on a daily basis. The trial judge was in the advantageous position to view the defendant’s demeanor and to evaluate his behavior as it affected his ability to assist in his defense by cooperating with defense counsel. Thus, the defendant’s allegations were insufficient to entitle him to a second competency hearing and the trial court did not violate his right to due process by denying his motion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 813 provides in pertinent part: “A motion made before trial shall be determined prior to trial, unless the judicial authority orders that the ruling be deferred until during the trial of the general issue or until after the verdict. Unless the judicial authority otherwise permits, all pretrial motions pending at the time for the hearing of any pretrial motion shall be heard at the same time.”

       Although the defendant did not properly preserve this claim for appeal, we will review it under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989); see also State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); because the claim involves an essential element of the crime on which the failure to instruct may result in a due process violation. State v. Pollitt, 205 Conn. 132, 150, 531 A.2d 125 (1987).

       When asked how she replied to the defendant’s demands that she perform fellatio, the victim responded: “I said No, and he said I better do it or he is going to do something to me.” She was then asked what he said he was going to do to her, and she responded: “He was going to hit me with whatever he had in the car. He was going to pick up something and hurt me with it.” Since the response was as to what the defendant had said, her answer did not represent her interpretation of his intentions, but rather a statement actually made by the defendant.

       General Statutes § 54-56d provides in pertinent part: “(a) competency required, definition. A defendant shall not be tried, convicted or sentenced while he is not competent. For the purposes of this section, a defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense.
      “(b) presumption OF competency. A defendant is presumed to be competent. The burden of proving that the defendant is not competent by clear and convincing evidence and the burden of going forward with the evidence are on the party raising the issue. The burden of going forward with the evidence shall be on the state if the court raises the issue. The court may call its own witnesses and conduct its own inquiry.
      “(c) request FOR examination. If at any time during a criminal proceeding it appears that the defendant is not competent, counsel for the defendant or for the state, or the court, on its own motion, may request an examination to determine the defendant’s competency.”


text:
    James M. Murphy’s Appeal from Probate
    (8406)
    Dupont, C. J., Foti and Lavery, Js.
    Argued March 1
    decision released July 31, 1990

      Franklin Melzer, for the appellant (plaintiff).

      Saul Kwartin, for the appellees (defendants).
   Foti, J.

The plaintiff appeals from the summary judgment rendered for the defendants in each of two companion cases involving an appeal from the Probate Court. The first appeal from the Probate Court involves the denial of his petition to remove a coexecutor. The second appeal is from the Probate Court’s removal of the plaintiff as coexecutor of the estate of Katherine B. Murphy.

The plaintiff is one of six children of the late Katherine B. Murphy, all of whom are beneficiaries of her estate. He was named as one of four coexecutors under her will. At the time of her death, the decedent owned two pieces of real estate in Greenwich. One property was her residence, a single-family house on Hendrie Avenue, and the other is a two-family house at Idar Court that she held for investment purposes. Her will authorized the coexecutors to sell these real properties, but imposed an obligation upon them to offer each of her children the right to purchase the Hendrie Avenue homestead for an amount equal to the value fixed “for Connecticut inventory and/or Connecticut succession tax purposes.” If more than one child wanted to purchase that property, the corporate executor, Connecticut Bank and Trust (CBT), was authorized to decide which child would purchase the homestead. The children orally agreed that none wanted to purchase the Hendrie Avenue property. The coexecutors had both properties appraised for estate tax purposes. On March 28, 1986, the Hendrie Avenue property was assigned a fair market value of $197,000 and the Idar Court property was given a fair market value of $300,000.

On April 25,1986 the coexecutors met at the offices of CBT to discuss the administration of the estate. All of the coexecutors, except the plaintiff, favored listing both properties for immediate sale. Because of the coexecutors’ failure to agree, it was decided to petition the Greenwich Probate Court for its guidance'. On May 1, 1986, the estate petitioned the court for permission to list both properties for sale. A hearing was scheduled for May 15,1986. On May 9,1986, the plaintiff communicated an offer to purchase the Hendrie Avenue property for $197,000, and filed an objection to the estate’s petition with the Probate Court. Because the estate refused to sell the Hendrie Avenue property to the plaintiff, he also asked that the Probate Court direct the coexecutors to sell the Hendrie Avenue property to him for $197,000.

At the hearing on May 15, 1986, the Probate Court proposed a plan of administration. This plan called for additional appraisals of both properties for the purpose of setting estate and inventory values. After these new assessments were completed, the executors were to decide upon an appropriate value for each property. The Hendrie Avenue property was then to be offered to the Murphy children as directed in the will. If none of the children wanted to purchase the family homestead, it was to be listed for sale.

The coexecutors met after the hearing, and, although the plaintiff was invited, he declined to attend. The remaining coexecutors voted to adopt the court’s advice and ordered additional appraisals. The first appraiser listed the fair market values of the Hendrie Avenue property as $275,000 and the Idar Court property as $400,000. The second appraiser assigned a fair market value of $270,000 to the Hendrie Avenue property and $325,000 to the Idar Court property. The coexecutors, with the exception of the plaintiff, who again declined to participate, adopted the second appraiser’s values for inventory and succession tax purposes, and informed the court of their actions. An inventory was filed with the court. The plaintiff did not sign the inventory.

On September 24,1986, each of the Murphy children was offered the Hendrie Avenue property for $270,000. The plaintiff responded to this purchase offer by demanding CBT’s resignation as coexecutor. On November 12, 1988, the plaintiff filed a petition with the Greenwich Probate Court seeking the removal of CBT as a coexecutor, a new appraisal of the Hendrie Avenue property, an order that the Hendrie Avenue property be offered to the Murphy children again, an order prohibiting CBT from listing the Hendrie Avenue property for sale, and an order that the Idar Court property not be sold until it could be converted into a condominium. The three remaining coexecutors cross petitioned the Probate Court, requesting that the plaintiff be removed as a coexecutor because of his conflict of interest. The Probate Court denied the plaintiff’s petition and granted the coexecutors’ petition, thereby removing the plaintiff as a coexecutor. The plaintiff appealed these orders to the Superior Court.

While the appeal of the probate orders was pending, the remaining executors proceeded with the administration of the estate. The properties were then listed for sale. The Hendrie Avenue property was listed for $329,000, and the Idar Court property was listed for $550,000. In December, 1986, the estate entered into a contract with an unrelated party for the sale of the Hendrie Avenue property for $315,000. The proposed purchaser later withdrew his offer because all of the coexecutors could not agree on its acceptance. The administration of the estate was concluded when the Idar Court property was sold to a bona fide purchaser, and equal shares of the Hendrie Avenue property were passed to each of the six Murphy children by certificate of devise. All of the property, real or personal, that comprised the estate, was either sold or distributed. No part of the estate remains to be administered. A final accounting was filed and approved by the Probate Court. The plaintiff filed a separate appeal in Superior Court from the acceptance of the final accounting and it is currently pending.

After the estate was fully administered, the remaining executors moved for summary judgment on both appeals claiming that both were moot. By memorandum of decision, the court rendered summary judgment for the remaining executors and dismissed the appeals, declaring them moot. The court also noted that the “[pjlaintiff retains his right to an adjudication of the propriety of the Probate Court’s acceptance of the final account of the remaining coexecutors in the pending appeal, which will sufficiently protect his rights in the administration of the decedent’s estate.”

The dispositive issue in the present case is whether the plaintiff’s appeal to the Superior Court from the orders of the Probate Court removing him as coexecutor and denying his petition to remove CBT as coexecutor were rendered moot by the actions of the remaining coexecutors, the approval by the Probate Court of the final account, and order of distribution.

“It is a fixed principle of law that appellate courts do not decide moot questions. ... A case is moot if it is disconnected from the granting of actual relief or it involves a determination from which no practical relief to the complainant can follow.” (Citations omitted.) Connecticut Resources Recovery Authority v. Freedom of Information Commission, 19 Conn. App. 489, 493-94, 562 A.2d 1145 (1989). Absent an actual and existing controversy, the courts of this state may not be used for the purpose of obtaining judicial opinions upon points of law, and where the question presented is purely academic, we must refuse to entertain the appeal. Franklin v. Berger, 15 Conn. App. 74, 77, 544 A.2d 650 (1988), rev’d on other grounds, 211 Conn. 591, 560 A.2d 444 (1989).

Any actual controversy as to the plaintiffs claims ceased to exist upon the Probate Court’s approval of the final account and the granting of the order of distribution. Anderson v. Watson, 162 Conn. 245, 247-48, 294 A.2d 278 (1972). The Hendrie Avenue property passed by certificate of devise and the Idar Court property was sold to a bona fida purchaser and this sale cannot now be declared void or voidable. The mere taking of an appeal from a probate order does not in and of itself vacate or suspend the order. That order continues in full force unless and until the appellate tribunal, i.e., the Superior Court, determines otherwise. Kerin v. Stangle, 209 Conn. 260, 265, 550 A.2d 1069 (1988). Although no successor was appointed upon the removal of the plaintiff as coexecutor, the actions of the remaining executors were of full force and effect. General Statutes § 45-264.

When the plaintiff filed the two appeals with the Superior Court, he neither requested a stay of further proceedings in the Probate Court nor sought injunctive relief to prevent the remaining executors from acting. General Statutes § 45-9 precludes a collateral attack of any order, judgment or decree of a Probate Court, rendered “after notice and from which no appeal is taken.” The plaintiff, however, has failed to cite any case that prohibited him from seeking injunctive relief to maintain the status quo during the pendency of the appeals in this matter.

There is merit to the defendants’ contention that a resolution of this appeal cannot result in any practical relief to the plaintiff. It is this present lack of an actual controversy between the parties that renders the plaintiff’s appeal to the Superior Court moot, thereby denying that court’s jurisdiction. See', e.g., Hallas v. Windsor, 212 Conn. 338, 348, 562 A.2d 499 (1989); Shays v. Local Grievance Committee, 197 Conn. 566, 571-72, 499 A.2d 1158 (1985); Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 251-52, 440 A.2d 310 (1982); Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944).

The plaintiff argues that the trial court improperly considered the issue of mootness because it was bound by and limited to the evidence that was received by the Probate Court, and could not consider events that occurred after the issuance of the order appealed from. This argument is without merit, as mootness deprives the court of jurisdiction. Hallos v. Windsor, supra. Pursuant to General Statutes § 45-288, this may occur any time prior to a trial de novo in the Superior Court.

We take judicial notice of the appeal that the plaintiff has taken from the approval of the final account and distribution pending before the Superior Court in the judicial district of Stamford-Norwalk, Docket No. CV 88-0093123S. That appeal alleges both mismanagement and overcharging by CBT, together with a claim of excessive fees charged by the attorneys for the estate. The plaintiff also alleges funds should not be distributed because of potential liability caused by the sale of the Idar Court property. We agree with the conclusion of the trial court that this appeal will sufficiently protect the plaintiffs rights.

We conclude that the court properly rendered summary judgment because at the time the judgment was rendered there no longer existed an actual controversy in which the trial court could have afforded practical relief to the parties. See Sadlowski v. Manchester, 206 Conn. 579, 583, 538 A.2d 1052 (1988); Board of Education v. Board of Labor Relations, 205 Conn. 116, 124-25, 530 A.2d 588 (1987); Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17, 19, 411 A.2d 1 (1979).

The judgment is affirmed.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 45-264. appeal from removal of fiduciary, effect on successor fiduciary, (a) When any fiduciary has been removed for cause by a court of probate, as provided in section 45-263, the fiduciary may appeal from such order of removal in the manner provided in chapter 796. In the event of an appeal from the order of removal taken by the fiduciary who has been removed, the appointment of a successor shall not be stayed by the appeal but shall be a temporary appointment. Such successor fiduciary shall act during the pendency of the appeal and until the appeal is withdrawn or final judgment entered thereon.
      “(b) If the order of removal is sustained upon appeal, such appointment shall become permanent.
      “(c) If the order of removal is vacated upon appeal, such appointment may be terminated, subject to the obligation of such successor fiduciary to render a final account, and the acts of the successor fiduciary for the period of the pendency of the appeal shall be of full effect.”

       “[General Statutes] Sec. 45-9. validity of orders, judgments and decrees. Every order, judgment or decree of a court of probate made by a judge who is disqualified shall be valid unless an appeal is taken as hereinafter specified. All orders, judgments and decrees of courts of probate, rendered after notice and from which no appeal is taken, shall be conclusive and shall be entitled to full faith, credit and validity and shall not be subject to collateral attack, except for fraud.”