text:
    Ludwig Rosenberg v. Hector Castaneda et al.
    (13213)
    O’Connell, Lavery and Landau, Js.

      Argued April 27
    decision released August 1, 1995

      John Serrano, for the appellants-appellees (named defendant et ah).

      Louis J. Bromberg, for the appellee-appellant (plaintiff).
   O’Connell, J.

The plaintiff was injured in a fall on the defendants’ property. The defendants appeal from the judgment for the plaintiff rendered after a trial to the court. They claim that (1) the evidence did not support an award of damages to the plaintiff and (2) even if damages were warranted, the amount awarded was excessive.

The plaintiff cross appealed, claiming that the trial court improperly allowed the defendants untimely to amend their answer to include a special defense of con-tributary negligence. We reverse the judgment on the defendants’ appeal and affirm the trial court’s action on the plaintiff’s cross appeal.

The court could reasonably have found the following facts. The defendants own a three-family residence in Bristol. The plaintiff, a salesman, was calling on a tenant in the defendants’ building when he slipped on ice-covered steps.

I

We consider the second claim first because it is dis-positive of the appeal. The defendants argue that, even if a judgment against them were warranted, the trial court awarded excessive damages because it relied on improperly admitted evidence in finding that the plaintiff sustained permanent partial disability. The genesis of the issue is a signed medical report from Steven Selden, an orthopedist, in which he expressed his opinion that the plaintiff had sustained a 30 percent permanent partial impairment of the right shoulder. No other evidence of the degree of any permanent partial disability was introduced, and the trial court expressly found that the plaintiff had sustained a 30 percent permanent partial impairment of his right shoulder.

The defendants argue that Selden’s report should not have been admitted into evidence because of the plaintiff’s failure to comply with Practice Book § 220 (D). Section 220 (D) mandates that “any plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within 60 days from the date the case is claimed to a trial list. ... If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subsection . . . such expert shall not testify except in the discretion of the court for good cause shown.”

Because § 220 (D) refers to “experts,” we turn first to the question of whether Selden, as a treating physician, comes within the ambit of the rule. This is not a question of first impression. We have held on several occasions that the disclosure requirements of § 220 (D) apply to treating physicians as well as to independent experts. Gemme v. Goldberg, 31 Conn. App. 527, 535, 626 A.2d 318 (1993); Bank of Boston Connecticut v. Ciarleglio, 26 Conn. App. 503, 509, 604 A.2d 359, cert. denied, 221 Conn. 922, 608 A.2d 685 (1992); Yale University School of Medicine v. McCarthy, 26 Conn. App. 497, 500, 602 A.2d 1040 (1992).

The plaintiff argues that because his medical evidence was submitted by way of a written report, rather than through a live expert witness on the witness stand, § 220 (D) does not apply. He claims that the medical report was not medical testimony but was a business entry and thus admissible under General Statutes § 52-174 (b). He argues that the statute supersedes the rules of practice insofar as medical reports are concerned. We do not agree.

The statute and the rule of practice serve two separate and distinct purposes. The difficulty and expense of getting physicians to come to court and testify is not unknown to most practitioners. Although live testimony is generally more effective than a written report, the latter is understandably superior to no medical evidence whatsoever. The statute serves the purpose of getting medical evidence, which is otherwise admissible, before the jury in the absence of the treating physician. See River Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn. 787, 799, 595 A.2d 839 (1991). The plaintiff cites no authority, nor are we aware of any, that suggests that § 52-174 (b) was intended to exempt a party from any other prerequisites of admissibility.

On the other hand, § 220 (D) is intended to furnish a defendant with details of a plaintiffs medical claim to assist in the preparation of the defendant’s case. In this regard, we point out the requirement that the mandated material must be furnished sixty days from the date the case is claimed to the trial list. It is readily apparent that introducing a medical report at the time of trial is of no value to a defendant in preparation for trial. “The rules of discovery are designed to make a trial less a game of blindman’s buff and more a fair contest with the basic issues and facts disclosed to the fullest practical extent.” (Internal quotation marks omitted.) Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 106, 476 A.2d 1074 (1984).

The plaintiff also argues that Selden’s report was admissible because it was disclosed as part of an offer of proof for a prejudgment remedy. This contention ignores the holding in Caccavale v. Hospital of St. Raphael, 14 Conn. App. 504, 506-508, 541 A.2d 893, cert. denied, 208 Conn. 812, 545 A.2d 1107 (1983), that merely supplying opposing counsel with an expert’s report does not satisfy § 220 (D).

Although the trial court may preclude a party from introducing expert testimony because of failure to comply with § 220 (D), such failure is not necessarily fatal. The trial court has discretion “for good cause shown” to allow expert testimony even when there has been no § 220 (D) compliance. In the present case, the plaintiff claims that he had no duty to comply with § 220 (D), and, accordingly, made no effort to establish the required good cause on which the trial court could have exercised its discretion and allowed Selden’s report into evidence. In view of the complete absence of a showing of good cause, the trial court abused its discretion in admitting Selden’s report into evidence.

The plaintiff additionally argues that the defendants did not properly object to the reports at trial. He contends that it was necessary for the defendants to object to a specific portion of Selden’s report rather than to the entire report. This is a proper statement of the law in general, as it pertains to exclusion of parts of a record that is otherwise admissible. Struckman v. Burns, 205 Conn. 542, 556, 534 A.2d 888 (1987). That principle, however, is not applicable where, as in the present case, the report is a substitute for live testimony. Under these circumstances the entire report must be examined, not only certain words or phrases contained therein. Id., 555.

The plaintiff argues that the defendants’ claim must fail because they did not ask the trial court to articulate the amount of damages or portion thereof that was linked to its finding of the 30 percent shoulder disability. We do not agree.

It is apparent from the memorandum of decision that the trial court awarded approximately $50,000 (prior to deduction for comparative negligence) for the plaintiff’s personal injury. The trial court described the nature of the plaintiff’s injuries, the treatment therefor, the limitation of movement, the prolonged and painful recovery and that “there is a 30 percent permanent partial impairment of [the plaintiffs] right shoulder.”

“Damages in personal injury cases cannot be computed mathematically, nor does the law furnish any precise definite rule for their assessment. The trier of fact must evaluate the elements of an award and place a monetary value on the whole.” Royston v. Factor, 1 Conn. App. 576, 577, 474 A.2d 108, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984). “How much of the $50,000 awarded . . . did the [trial court] allocate to the pain and suffering which the plaintiff underwent . . . and how much to the discomfort . . . which will attend the remaining years of his life? These are the imponderables which are often found in awards of damages, whether by judge or jury.” Oborski v. New Haven Gas Co., 151 Conn. 274, 284, 197 A.2d 73 (1964). Thus, the defendants were not required to file a motion for articulation.

We conclude that there was no admissible medical evidence on which the trial court could find, and include in its award of damages, that the plaintiff sustained a 30 percent permanent partial disability of his right shoulder. Because we cannot know what part this disability evidence played in the total damages awarded by the court, the case must be remanded for a new trial.

II

Because the defendants’ claim concerning the admission of Selden’s report requires a remand for a new trial, we do not reach their claim concerning liability for the plaintiff’s injuries. Although the reasons for reversal relate solely to damages, “[t]he decision to retain the jury verdict on the issue of liability and order a rehearing to determine only the issue of damages should never be made unless the court can clearly see that this is the way of doing justice in [a] case.” (Emphasis in original; internal quotation marks omitted.) Fazio v. Brown, 209 Conn. 450, 455, 551 A.2d 1227 (1988). “As a rule, the issues [of liability and damages] are interwoven, and may not be separated without injustice to one of the parties.” Murray v. Krenz, 94 Conn. 503, 508, 109 A. 859 (1920).

Ill

The plaintiff cross appeals, claiming that the trial court abused its discretion in allowing the defendants to amend their answer during the course of the trial to include a special defense of contributory-comparative negligence.

The trial court has wide discretion in granting or denying amendments before, during, or after trial. Belated amendments to the pleadings are permitted unless the amendment will cause an unreasonable delay, mislead the opposing party, take unfair advantage of the opposing party, or confuse the issues, or unless the delayed amendment is attributable to some misconduct on the part of its proponent. Falby v. Zarembski, 221 Conn. 14, 24, 602 A.2d 1 (1992); Hudson Development Co. v. East Great Plains Shopping Center, Inc., 195 Conn. 60, 67, 485 A.2d 1296 (1985); Lawson v. Godfried, 181 Conn. 214, 216, 435 A.2d 15 (1980). The trial court’s discretion to grant or deny amendments to pleadings extends to the addition of special defenses by the parties. Howard v. Robertson, 27 Conn. App. 621, 627, 608 A.2d 711 (1992); Costanzo v. Hamden, 18 Conn. App. 254, 257-58, 557 A.2d 1279 (1989). The decision of a trial court to permit an amendment will not be disturbed unless an abuse of discretion is clearly evident. DuBose v. Carabetta, 161 Conn. 254, 263, 287 A.2d 357 (1971); Capitol Restorations Corp. v. Construction Services of Bristol, Inc., 25 Conn. App. 681, 685, 596 A.2d 927 (1991).

In determining whether the addition of a special defense during the course of the proceedings was appropriate in this case, the trial court found that the plaintiff would suffer no prejudice if the defendants were allowed to amend their answer to include contributory negligence. The plaintiff argues that he was in fact prejudiced by the amendment because, had he known that a contributory negligence defense was being pursued, he would have deposed Roberta Hazel-ton, who has since died. Hazelton, the tenant on whom the plaintiff was calling at the time he slipped and fell, would have been deposed as to the condition of the premises and the obviousness of the defect.

The lack of Hazelton’s testimony at trial, however, did not prejudice the plaintiff. Although Hazelton was a tenant in the defendants’ building, she was not an eyewitness to the plaintiff’s fall. Her testimony would not have altered the outcome of the plaintiff’s case because, on the basis of other evidence, the trial court found that the stairway was icy and slippery on both the date of and two days prior to the plaintiff’s fall. Hazelton’s testimony regarding the degree of the obviousness of the defective premises would have been merely cumulative — the plaintiff himself testified at trial that he saw the ice on the stairs before stepping onto them.

The addition of the special defense of contributory negligence did not mislead the plaintiff, take unfair advantage of him, or confuse the issues. Accordingly, the trial court did not abuse its discretion in allowing the defendants to amend their answer.

On the defendants’ appeal, the judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       Judgment was rendered against the defendants Hector Castaneda, Rosa Castaneda and Katherine Castaneda, and in favor of the defendant Fortunetta Castaneda. As used in this opinion, the defendant refers only to the three Castanedas against whom judgment was rendered.

       General Statutes § 52-174 (b) provides in relevant part: “In all actions for the recovery of damages for personal injuries or death . . . any party offering in evidence a signed report ... of any treating physician . . . may have the report . . . admitted into evidence as a business entry and it shall be presumed that the signature on the report is that of the treating physician . . . and that the report . . . [was] made in the ordinary course of business. . . .”

       A report of another treating orthopedist was admitted under similar circumstances, but, because only Selden’s report refers to the 30 percent permanent partial disability, we have limited our discussion to Selden’s report.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Kenneth Reising v. General Dynamics Corporation/Electric Boat Division et al.
    (14305)
    Dupont, C. J., and Foti, Laveey, Landau and Heiman, Js.
    Considered May 24
    decision released July 14, 1995

      John W. Greiner, in support of the motion for review.

      Taka Iwashita, assistant attorney general, in opposition to the motion for review.
   Per Curiam.

In this appeal from a decision by the workers’ compensation review board, the defendant General Dynamics Corporation/Electric Boat Division (General Dynamics) has filed a motion for review of the board’s denial of General Dynamics’ motion for articulation. The dispositive issue is whether Practice Book § 4054 provides a mechanism by which this court can review requests for articulation denied by the board. We conclude that it does not and therefore dismiss General Dynamics’ motion as improper.

The workers’ compensation commissioner transferred liability for compensation benefits, payable to the plaintiff, Kenneth Reising, from General Dynamics to the defendant second injury fund (fund). The fund appealed to the board, which reversed the commissioner’s decision. General Dynamics now appeals from the board’s decision.

General Dynamics moved the board to articulate the bases for its findings that extensions of time, filed by the fund, were not late and were not submitted merely for the purposes of delay, and that a motion to dismiss, filed by General Dynamics, was untimely. The board denied the motion for articulation, with one commissioner dissenting from that decision. General Dynamics subsequently filed, with this court, a motion for review of the board’s denial of the motion for articulation.

General Dynamics bases its motion for review on Practice Book § 4054, which provides in pertinent part: “Any party aggrieved by the action of the trial judge as regards rectification of the appeal or articulation under Sec. 4051 may within ten days of the issuance of notice of the order sought to be reviewed, make a written motion for review to the court, to be filed with the appellate clerk and the court may, upon such a motion direct any action it deems proper.” (Emphasis added.) This section allows this court to review only those requests for articulation that have been denied by the trial court. The board acts not as a trial court, but as an appellate court in workers’ compensation appeals. General Statutes § 31-280b.

We are asked to review a denial of a motion for articulation by the board. Practice Book § 4054, which deals with motions for review, limits our review to actions of a “trial judge.” We conclude that Practice Book § 4054 does not provide a mechanism by which this court can review a denial or dismissal of a motion for articulation filed with the board.

The motion for review is dismissed.


author: O’Connell, J.

text:
    Sophie Lupoli v. Gale S. Lupoli et al.
    (14092)
    O’Connell, Foti and Heiman, Js.
    Argued May 26
    decision released August 1, 1995

      Kenneth A. Votre, for the appellant (named defendant).

      Susan E. Nugent, for the appellee (plaintiff).
   O’Connell, J.

The defendant Gale Lupoli appeals from the judgment of foreclosure and the denial of her motion to open and set aside the judgment. The defendant claims (1) that the trial court improperly sustained the plaintiffs objections to the defendant’s proffered testimony relating to threats made against her during her purported execution of the mortgage note and deed, (2) that that court failed to find that the mortgage being foreclosed was invalid because it lacked two witnesses, and (3) that the court’s factual conclusions were not supported by the evidence. We affirm the judgment of the trial court.

The record discloses the following facts. The instruments in question were executed on December 3,1982. At that time, the defendant was married to Carl J. Lupoli, the plaintiff’s son. The defendant and her former husband both signed the mortgage note, but, because the real estate was solely in the defendant’s name, she alone signed the mortgage deed. The note was originally payable to the plaintiff and her late husband and is now owned solely by the surviving plaintiff. The mortgage deed was properly recorded on the Hamden land records. The defendant’s marriage to the plaintiff’s son was dissolved on December 4,1991, and the defendant retained the property as her home.

The plaintiff commenced this action on January 27, 1993. Judgment of strict foreclosure was rendered on July 27, 1994, at which time the trial court found the mortgage debt to be $110,431.32 and established law days.

I

In her first claim, the defendant argues that the trial court improperly excluded evidence that she proffered for the purpose of establishing that threats were made to her during the period that she was alleged to have executed the note and deed. She contends that those threats affected her mental state so that she has no recollection of executing the mortgage deed.

In an effort to prove her special defense of duress, the defendant’s counsel made repeated attempts to elicit testimony from her concerning threats made to her by both Carl Lupoli and Lawrence Lupoli during the note signing process. The trial court ruled that the questions were inadmissible hearsay.

An out-of-court statement offered in court for its truth is inadmissible hearsay. State v. Packard, 184 Conn. 258, 275, 439 A.2d 983 (1981). However, “[o]ut-of-court statements to a person are admissible to show his state of mind where his mental state is relevant.” State v. Jones, 205 Conn. 723, 731, 535 A.2d 808 (1988). “A person’s state of mind can be shown from what he heard as well as from what he saw, even though what he heard would be normally classified as hearsay. . . . The evidence [concerning a third party’s statement to the witness] was admissible not to establish the truth of the facts asserted but to show what was in the defendant’s mind in testing the reasonableness of his belief . . . .” (Internal quotation marks omitted.) Id.

Despite its ruling on the hearsay issue, however, the court did hear testimony that the defendant had been threatened by her father-in-law, that she was afraid that she and her children would be put out of their home, and that she was afraid that her former husband would beat her. Therefore, although the out-of-court statements were admissible here, we conclude that, because the defendant was able to introduce other evidence supporting her contention of duress, their restriction was harmless. The exclusion of evidence of facts that are established by other evidence is not ground for reversal. Connecticut Bank & Trust Co. v. Hurlbutt, 157 Conn. 315, 322, 254 A.2d 460 (1968); see Cobh v. Maloney, 34 Conn. App. 655, 669, 643 A.2d 277 (1994).

II

The defendant next claims that the trial court should have found that the mortgage deed being foreclosed was invalid because it lacked two witnesses. General Statutes § 47-5 (a) requires that mortgage deeds be attested by two witnesses. The defendant claimed that she did not recall executing the mortgage deed and did not know that it existed until the commencement of this foreclosure proceeding. She argues further that, if she in fact signed the mortgage deed at the same time that she signed the mortgage note, the requisite witnesses were not in the room and thus could not possibly have attested the mortgage deed.

The mortgage deed, however, bears the signatures of two witnesses, one of whom was the attorney who took the plaintiffs acknowledgment and signed the deed in that capacity also. The defendant admits that the attorney was present in the room and could possibly have attested the deed but denies that the second person whose name appears as a witness was present. This argument is unavailing, however, because the imperfections in the execution of the deed, if any were cured by the passage of Special Acts 1993, No. 93-17, which validated deeds otherwise infirm. See Molk v. Micklewright, 151 Conn. 606, 610, 201 A.2d 183 (1964).

Ill

The defendant’s final claim is that the factual conclusions of the trial court were not supported by the evidence. It is, of course, the role of the trial court as fact finder to judge the credibility of the witnesses, to weigh the evidence and to draw logical inferences and conclusions from the facts proven. Talton v. Warden, 33 Conn. App. 171, 179, 634 A.2d 912 (1993), aff’d, 231 Conn. 274, 648 A.2d 876 (1994). We afford the finder of fact broad discretion, and will not reverse on appeal unless its findings are clearly erroneous. Groton v. Yankee Gas Services Co., 224 Conn. 675, 691, 620 A.2d 771 (1993). Having studied the record, transcripts and briefs, we do not agree with the defendant’s contention that there was insufficient evidence to support the court’s factual conclusions.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant Gale Lupoli is the owner of the equity of redemption. Numerous subsequent encumbrancers are also named as defendants, but, because they are not involved in this appeal, we will use the term defendant to mean Gale Lupoli only.

       At oral argument, the defendant withdrew a fourth claim pertaining to recusal of the trial court.

       The trial court’s judgment was also in favor of the plaintiff on a counterclaim in which the defendant sought to have the mortgage note and deed declared null and void because of illegality. The defendant did not challenge that portion of the judgment.

       On July 14, 1994, the defendant filed a third party complaint against her former husband. In her third party complaint, the defendant seeks indemnification from her former husband for any losses that she may suffer as a result of this foreclosure. The third party complaint has not yet gone to judgment and is, accordingly, not part of this appeal.

       The attorney was not called as a witness.

       Special Acts 1993, No. 93-17, § 3, provides in relevant part: “(a) No deed, mortgage ... or other instrument made for the purpose of con-


author: Landau, J.

text:
    State of Connecticut v. Sherman Adams
    (12303)
    Dupont, C. J., and Landau and Hennessy, Js.

      Argued February 6
    decision released August 8, 1995

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Judith Rossi, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Joseph T. Corradino, assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, . of twelve counts of burglary in the second degree in violation of General Statutes § 53a-102 (a), six counts of larceny in the first degree in violation of General Statutes §§ 53a-119 and 53a-122 (a) (2), four counts of larceny in the third degree in violation of General Statutes §§ 53a-119 and 53a-124 (a) (2), one count of larceny in the fourth degree in violation of General Statutes §§ 53a-119 and 53a-125 (a), and six counts of stealing a firearm in violation of General Statutes § 53a-212 (a).

The defendant claims that the trial court improperly (1) (a) denied his motion for judgment of acquittal as to four counts of larceny in the third degree and (b) exercised its discretion pursuant to Practice Book § 624 in permitting the state to amend the information as to those four counts, (2) violated his right against double jeopardy under the Connecticut constitution by permitting his conviction of six counts of theft of a firearm and two counts of larceny in the first degree for the theft of the same firearms, (3) instructed the jury on the element of value as to the larceny counts, and (4) admitted into evidence a written statement of a state’s witness.

The jury could reasonably have found the following facts. Between October 15, 1989, and November 15, 1991, twelve residences were burglarized, one in the town of Stratford and eleven in the town of Fairfield. Property was taken from all but one residence in the course of these crimes. On February 4, 1992, Curtis Wilson gave information, including a written statement, to the Fairfield police that implicated the defendant in all of the Fairfield burglaries. In a subsequent written statement given, on March 25, 1992, Wilson admitted that he had been involved in those burglaries with the defendant.

At trial, Wilson, the sole witness linking the defendant to the crimes, testified regarding the Fairfield burglaries, as well as the Stratford burglary. The police obtained no fingerprints of the defendant or Wilson at the crime scenes. The defendant testified that he was not involved in any of the burglaries and that Wilson, a former friend, had falsely implicated him.

I

In his first claim, the defendant asserts that the trial court improperly denied his motion for judgment of acquittal as to four counts of larceny in the third degree and improperly permitted the state to file an amended information as to those four counts in violation of Practice Book § 624 and his due process right to notice of the charges against him.

Before we begin our analysis, it is important to outline the procedural history of this case. The state originally filed a thirty count long form information against the defendant. Four of the counts alleged larceny in the third degree in violation of General Statutes §§ 53a-119 and 53a-124 (a) (1). While § 53a-124 (a) (1) requires that the object of the larceny be a motor vehicle valued at $5000 or less, the state’s case against the defendant on each of the four counts was tried on the premise that property other than a motor vehicle, valued at less than $5000, had been taken. Subdivision (2), not (1), of § 53a-124 (a) requires that the object of the larceny be property valued at more than $1000. See footnote 4.

At the close of the state’s case-in-chief, the defendant moved for judgment of acquittal as to the four counts, claiming that the state’s evidence did not conform to the charged offenses. The trial court denied the defendant’s motion. Contemporaneously, the state moved to amend the original information, claiming that a scrivener’s error had caused mistakes therein. The trial court denied the motion as presented, but ordered the state to file an amended information changing the statutory citations in the four pertinent counts from § 53a-124 (a) (1) to § 53a-124 (a) (2). Citing Practice Book § 622, the trial court ruled that the amendment was proper because the defects in the original information were “minor” and because there was no actual defect in the substance of what the defendant was alleged to have committed. The trial court found that there had been a “mis-citation” of the statutory subdivision and further stated that “there’s certainly no prejudice to the defendant whatsoever here. He has been placed on notice since early on of exactly what he was charged with, and what the state intended to prove.”

Both the state and the defendant ask us to decide if the trial court properly exercised its discretion under Practice Book § 624 in permitting the state to amend the information after the close of the state’s case. While the motion to amend the information was couched in terms of Practice Book § 624, however, the transcript is quite clear in revealing that the basis of the trial court’s ruling was Practice Book § 622. The court stated, “I just want to make sure that you understand, and I do not find this to be a substantive amendment under [Practice Book §] 624. I’m finding this under [Practice Book §] 622.” Regardless of whether our analysis is based on § 622 or § 624, we conclude that the trial court properly permitted the amended information.

The trial court may permit the state, after the start of the trial, to file an amended information to conform to the evidence. See Practice Book § 624; State v. Secore, 194 Conn. 692, 699, 485 A.2d 1280 (1984); State v. Mazzetta, 21 Conn. App. 431, 438, 574 A.2d 806, cert. denied, 216 Conn. 807, 580 A.2d 64 (1990). Also, Practice Book § 622 permits the trial court at any time to order such relief as is required to remedy any defect, imperfection or omission in an information. These decisions are “within the court’s sound discretion and [are] subject to reversal only for an abuse of that discretion. State v. Ramos, [176 Conn. 275, 276, 407 A.2d 952 (1978)]. A substitute information may not prejudice the defendant’s due process rights. State v. Vaughn, 20 Conn. App. 386, 389-90, 567 A.2d 392 (1989). The defendant must provide a specific showing of prejudice resulting from the state’s delay in providing notice of the charge against which [he] must defend. State v. Ramos, supra, 279-80; State v. Waterman, 7 Conn. App. 326, 335, 509 A.2d 518, cert. denied, 200 Conn. 807, 512 A.2d 231 (1986).” State v. Mazzetta, supra, 438.

The trial court’s discretion pursuant to Practice Book § 624 is limited only by the requirement that no additional or different offense may be charged in and no substantive rights of the defendant may be prejudiced by an amended information. “Practice Book § 624 is primarily a notice provision. Its purpose is to ensure that the defendant has adequate notice of the charges against which he must defend. State v. Jacobowitz, 182 Conn. 585, 590, 438 A.2d 792 (1981).” State v. Tan-zella, 226 Conn. 601, 608, 628 A.2d 973 (1993). For this reason, when determining whether an amended information has charged different offenses for the purposes of § 624, “the decisive question is whether the defendant was informed of the charges with sufficient precision to be able to prepare an adequate defense.” Id.

The defendant argues that the amendment to the information was improper because it permitted the state to charge a different offense. In support of this claim, he first posits that the original information actually charged four counts of larceny in the second degree in violation of General Statutes § 53a-123 (a) (2), in that each count alleged that the defendant had taken property “valued in excess of Five Thousand Dollars.” Because the value element of § 53a-123 (a) (2) differs from that of the substituted § 53a-124 (a) (2), the defendant maintains that the trial court permitted the substitution of a different offense.

The state responds that it intended to charge the defendant with four counts of larceny in the third degree pursuant to § 53a-124 (a) (2), not with either larceny in the second degree pursuant to § 53a-123 (a) (2) or larceny in the third degree in violation of § 53a-124 (a) (1). This, is evident, the state contends, from the fact that each disputed count in the original information was entitled “LARCENY IN THE THIRD DEGREE.” Moreover, the statute cited in each count was § 53a-124, which pertains to larceny in the third degree. Also, the state’s evidence on these counts established that property other than motor vehicles valued at less than $5000 had been taken from the residences. The state argues, as it did before the trial court, that the prosecutor mistakenly cited subdivision (1) of § 53a-124 (a), rather than subdivision (2), due to a recent revision in the statute. Also, a scrivener’s error had caused the counts to read “valued in excess of five thousand dollars” rather than “valued in excess of one thousand dollars.” It is evident from the record that the trial court accepted the state’s argument and considered the amendment to the information a technical rather than a substantive change. The trial court, therefore, allowed the substitution of no new or different offense.

This does not end our inquiry. We must determine whether the defendant was prejudiced in order to conclude whether the court abused its discretion in permitting the change. Even if the defendant had read the original four counts as charging him with larceny in the second degree in violation of § 53a-123 (a) (2), as he now contends, we must conclude that he was not prejudiced. The substituted offense of larceny in the third degree in violation of § 53a-124 (a) (2) is a lesser included offense of what the defendant assumed was the original offense. See State v. Cole, 8 Conn. App. 545, 513 A.2d 752 (1986). Any property “valued in excess of five thousand dollars” is also property “valued in excess of one thousand dollars.” Therefore, a defendant who is on notice that he is charged with stealing in excess of $5000 worth of property is automatically on notice that he is accused of stealing in excess of $1000 worth of property. See State v. Cochran, 191 Conn. 180, 192-93, 463 A.2d 618 (1983).

In the alternative, the defendant argues that, even if the original four counts did charge larceny in the third degree pursuant to § 53a-124 (a), the change from subdivision (1) to (2) nonetheless permitted the state to allege a different offense. The defendant claims that the property required for a violation of § 53a-124 (a) (1), i.e., a motor vehicle, is unique as opposed to the generic “property” required in the substituted offense.

Subdivision (1) of § 53a-124 (a) differs in one relevant respect from subdivision (2); it requires that the property at issue be a motor vehicle. Otherwise, both subdivisions require that the subject of the larceny be property with a value of $5000 or less. For the purposes of § 624, we must conclude that the two subdivisions merely describe two different methods of committing the same substantive offense, i.e., larceny in the third degree. As stated previously, the decisive question is whether the defendant was informed of the charges with sufficient precision to be able to prepare an adequate defense. State v. Tanzella, supra, 226 Conn. 608. The defendant was sufficiently apprised that he was being charged with larceny in the third degree. Moreover, his defense at trial was that he was not involved in any of the larcenies. He did not dispute the fact that the larcenies had occurred and he did not challenge the value or types of property taken.

Consequently, we conclude that the amended information adequately notified the defendant of the charges against which he was required to defend. It did not charge additional or different offenses. See State v. Tanzella, supra, 226 Conn. 601; State v. Secore, supra, 194 Conn. 692; State v. Wallace, 181 Conn. 237, 435 A.2d 20 (1980); State v. Sullivan, 11 Conn. App. 80, 525 A.2d 1353 (1987). Because the amendment to the information was proper, the trial court’s denial of the defendant’s motion for judgment of acquittal was also proper.

II

The defendant next claims that the state constitutional prohibition against double jeopardy was violated when the trial court sentenced him pursuant to the jury verdicts of guilty of six counts of stealing a firearm in violation of § 53a-212 (a) and two counts of larceny in the first degree in violation of § 53a-122 (a) (2).

The jury found the defendant guilty of unlawfully entering one residence (seventh count charging burglary in the second degree), stealing property therefrom (eighth count charging larceny in the first degree) and stealing four firearms therefrom (ninth through twelfth counts). The jury also found him guilty of unlawfully entering another residence (twentieth count alleging burglary in the second degree), stealing property therefrom (twenty-first count alleging larceny in the first degree) and stealing two firearms therefrom (twenty-second and twenty-third counts). The trial court imposed separate sentences for the burglary, the larceny and each theft of a firearm at each residence.

The defendant acknowledges that in State v. Roy, 34 Conn. App. 751, 643 A.2d 289 (1994), rev’d on other grounds, 233 Conn. 211, 658 A.2d 566 (1995), we held that convictions for both stealing a firearm and larceny in the first degree involving theft of the same firearm did not violate double jeopardy protection under the federal constitution. He argues that the Connecticut constitution, article first, §§ 8 and 9, entitles him to greater protection against double jeopardy than does the federal constitution. In State v. Laws, 37 Conn. App. 276, 655 A.2d 1131 (1995), we rejected this argument.

In Laws, we stated that “[t]here is no textual ban on double jeopardy in the Connecticut constitution; instead the state constitutional prohibition on double jeopardy is implied through the due process provisions of article first, §§ 8 and 9. State v. Lonergan, [16 Conn. App. 358, 363-64, 548 A.2d 718 (1988), aff'd, 213 Conn. 74, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990)]. It follows that there is no textual or historical reason for interpreting our own constitutional double jeopardy bar differently from the federal constitutional bar. Furthermore, when a federal double jeopardy claim is raised in the course of a single prosecution, most federal and state courts, including Connecticut courts, address the claim under the federal constitution through straightforward application of the Blockburger rule. See, e.g., State v. McCall, [187 Conn. 73, 89-90, 444 A.2d 896 (1982)]; State v. Ortiz, [15 Conn. App. 749, 751, 546 A.2d 338, cert. denied, 209 Conn. 820, 551 A.2d 757 (1988)].” State v. Laws, supra, 37 Conn. App. 292.

“Prior holdings of Connecticut courts support a finding that the implied double jeopardy clause of our own constitution is coextensive with that found in the federal constitution. ‘Our Supreme Court has repeatedly held that, as a general rule, “the due process clauses of both the United States and Connecticut constitutions have the same meaning and impose similar limitations.” State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982); Caldor’s Inc. v. Bedding Barn, Inc., 177 Conn. 304, 314, 417 A.2d 343 (1977).’ State v. Leroux, 18 Conn. App. 223, 229-30, 557 A.2d 1271, cert. denied, 212 Conn. 809, 564 A.2d 1072 (1989). Furthermore, this court has noted that in an independent analysis of a state constitutional provision, departure from federal constitutional precedent is usually justified only ‘where the United States Supreme Court “has created exception to or deviated from rules previously enunciated by it . . . .” ’ State v. Miller, 29 Conn. App. 207, 222-23, 614 A.2d 1229 (1992), aff'd, 227 Conn. 363, 630 A.2d 1315 (1993), quoting State v. DeFusco, 27 Conn. App. 248,256, 606 A.2d 1 (1992), affd, 224 Conn. 627, 620 A.2d 746 (1993). When we find that our citizens have relied on an understanding of their constitutional rights that is more expansive than that afforded under a recent interpretation of the federal constitution by the United States Supreme Court, we will be inclined to interpret our state constitution as affording greater protection to preserve those rights. See, e.g., State v. Oquendo, 223 Conn. 635, 646-52, 613 A.2d 1300 (1992). Otherwise, we will continue to follow the persuasive analysis of the United States Supreme Court. State v. Miller, supra, 222-23.

“The Blockburger rule had its genesis in Gavieres v. United States, 220 U.S. 338, 31 S. Ct. 421, 55 L. Ed. 489 (1911). Over the last fifty years, it has consistently been applied by Connecticut courts in analyzing double jeopardy claims arising from multiple convictions and punishments imposed in a single trial. See, e.g., State v. McCall, supra, 187 Conn. 89-90; State v. Ortiz, supra, 15 Conn. App. 751. Connecticut’s citizens have no realistic expectation that they will have these double jeopardy claims scrutinized by a test that is more protective than the Blockburger test.” State v. Laws, supra, 37 Conn. App. 294-95. Therefore, as in Laws, we decline the defendant’s invitation to find that our state constitution affords any greater due process rights than those afforded under the federal constitution’s double jeopardy clause.

Ill

In his third claim, the defendant asserts that the trial court improperly instructed the jury concerning the element of value in the larceny counts. Specifically, he argues that the trial court failed to instruct that value is a necessary element of larceny and is required to be proven beyond a reasonable doubt by the state. He also contends that the court improperly put limits on the value of the property necessary to establish the degree of larceny charged in each count.

The defendant did not except to the instructions at trial and seeks review of this unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). As to his argument that the trial court failed to instruct that value is a necessary element, thereby depriving him of his right to due process, we conclude that the third prong of Golding remains unfulfilled.

“ ‘In reviewing a constitutionally based challenge to the court’s instructions to the jury, we must examine the charge as a whole to determine whether it is reasonably possible that the jury was misled by the challenged instruction. State v. Snook, 210 Conn. 244, 275-76, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989); State v. Bailey, 209 Conn. 322, 338, 551 A.2d 1206 (1988).’ State v. Ober, 24 Conn. App. 347, 358, 588 A.2d 1080, cert. denied, 219 Conn. 909, 593 A.2d 134, cert. denied, 502 U.S. 915, 112 S. Ct. 319, 116 L. Ed. 2d 26 (1991). ‘The charge is not to be judged in artificial isolation from the overall charge. State v. Kelly, 23 Conn. App. 160, 164, 580 A.2d 520 (1990), cert. denied, 216 Conn. 831, 583 A.2d 130, cert. denied, 449 U.S. 981, 111 S. Ct. 1635, 113 L. Ed. 2d 731 (1991).’ State v. Falcon, 26 Conn. App. 259, 269, 600 A.2d 1364 (1991), cert. denied, 221 Conn. 911, 602 A.2d 10 (1992). An error in the charge requires reversal only if, in the context of the whole instruction, there is a reasonable possibility that the jury was misled in reaching its verdict. State v. Bailey, supra, 338.

“ ‘While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury.’ State v. Channer, 28 Conn. App. 161, 172, 612 A.2d 95, cert. denied, 223 Conn. 921, 614 A.2d 826 (1992).” State v. Turmon, 34 Conn. App. 191, 197-98, 641 A.2d 138 (1994). Our review of the whole charge indicates that the jury was adequately instructed on the element of value and that there is no reasonable possibility that the jury was misled by the charge. The trial court did not fail to instruct the jury on the element of value for the various degrees of larceny with which the defendant was charged. Nor did the court fail to instruct that the state had the burden of proof beyond a reasonable doubt, and that the jury had to find the facts supporting the convictions beyond a reasonable doubt. The defendant has simply attacked the adequacy of a portion of the language that the trial court used in conveying these principles to the jury, language that at the time of trial he did not perceive as so damaging as to require an exception or request for an additional instruction. See State v. Sullivan, 11 Conn. App. 80, 86, 525 A.2d 1353 (1987). When the instructions are reviewed as a whole, as they must, it is evident that they adequately relate that value is a necessary element of larceny, which the state must prove beyond a reasonable doubt. The alleged constitutional violation, therefore, does not clearly exist and did not clearly deprive the defendant of a fair trial.

The defendant also challenges for the first time on appeal the court’s language that he contends put limits on the value necessary to establish the various degrees of larceny. This unpreserved claim, however, fails to satisfy the second prong of Golding. Our statutory scheme does define each degree of larceny by specifying a value amount. See State v. Salz, 8 Conn. App. 125, 141-42, 512 A.2d 921, cert. denied, 201 Conn. 807, 515 A.2d 380 (1986). The defendant claims that the trial court’s charge, by placing value limits on the degrees of larceny at issue, precluded the jury from finding him guilty of a lesser included offense on each count of larceny. The defendant fails to recognize, however, that he has no fundamental constitutional right to a jury instruction on lesser included offenses, which are “ ‘purely a matter of our common law.’ ” State v. Thomas, 205 Conn. 279, 282, 533 A.2d 553 (1987); see also State v. McIntosh, 199 Conn. 155, 158, 506 A.2d 104 (1986); State v. Whistnant, 179 Conn. 576, 581, 427 A.2d 414 (1980). Thus, his unpreserved challenge to these instructions is not one of constitutional magnitude. We therefore decline to review it.

IV

Finally, the defendant claims that the trial court abused its discretion when it admitted into evidence a written statement given to the police by Wilson. The defendant posits that because Wilson’s credibility was essential to the defendant’s conviction, the trial court’s admission of the statement into evidence was a harmful abuse of discretion.

The state presented the testimony of Detective Daniel Hallama and Detective Peter Bravo of the Fairfield police department, who testified that they were unable to solve the crimes until Wilson came forward and implicated the defendant and later himself. Both testified that, in Wilson’s first statement of February 4, 1992, he identified the defendant as the burglar and later, in a second statement on March 25, 1992, he admitted that he also was involved in the burglaries. On cross-examination, the defendant asked the detectives about the circumstances surrounding each of Wilson’s statements, his alleged motive in implicating the defendant and the fact that he did not implicate himself until he gave the second statement.

Wilson, testifying for the state as to the circumstances surrounding the burglaries, identified the residences, explained the methods of entry and, to some extent, described the property taken from each residence. On cross-examination, the defendant questioned Wilson about the fact that, when the police first interviewed him, he had said that he had nothing to do with the burglaries. The first written statement, which Wilson acknowledged that he had made under oath, was then admitted into evidence as a full exhibit.

Upon further cross-examination by the defendant, Wilson testified that he had given the second written statement, in which he admitted his participation in the crimes, in return for immunity from prosecution. On redirect, the state questioned Wilson about the second statement and then offered that statement as a prior consistent statement. Overruling the defendant’s objection, the trial court admitted the second statement on the grounds that it was relevant, probative and was issued within a short time of the first statement.

Assuming, arguendo, that the defendant has met his burden of showing an improper exercise of the trial court’s discretion in admitting the statement into evidence, we conclude that the defendant has nonetheless failed to sustain his burden of proving that such eviden-tiary impropriety was harmful. See State v. Dolphin, 178 Conn. 564, 572, 424 A.2d 266 (1979). Before the statement was admitted into evidence, the jury was already well aware that Wilson’s two statements differed and that he had changed his story after obtaining immunity from prosecution. On both direct and cross-examination, Hallama, Bravo and Wilson had each testified that Wilson gave two statements to the police and that he had admitted involvement in the crimes only in the second statement. The fact that Wilson gave the second statement in return for immunity also was presented to the jury. Even if the second statement was not properly admitted, it was cumulative to evidence already presented to the jury without objection. Also, the trial court gave a cautionary instruction to the jury concerning the status of Wilson’s testifying as an accomplice-witness. For these reasons, we conclude that any error was harmless.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-102 (a) provides: “A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.”

       General Statutes § 53a-119 provides in pertinent part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. ...”

       General Statutes § 53a-122 (a) provides in pertinent part: “A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and ... (2) the value of the property or service exceeds ten thousand dollars . . . .”

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

       General Statutes § 53a-125 (a) provides: “A person is guilty of larceny in the fourth degree when he commits larceny as defined in section 53a-119 and the value of the property or service exceeds five hundred dollars.”

       General Statutes § 53a-212 (a) provides: “A person is guilty of stealing a firearm when, with intent to deprive another of his firearm or to appropriate the same to himself or a third party, he wrongfully takes, obtains or withholds a firearm, as defined in subdivision (19) of section 53a-3.”

       Practice Book § 624 provides: “After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information or indictment at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. An amendment may charge an additional or different offense with the express consent of the defendant.”

       General Statutes § 53a-124 (a) provides in pertinent part: “A person is guilty of larceny in the third degree when he commits larceny as defined in section 53a-119 and: (1) The property consists of a motor vehicle, the value of which is five thousand dollars or less . . .

       The defendant also moved for judgment of acquittal as to a count of larceny in the sixth degree in violation of General Statutes §§ 53a-119 and 53a-125b (a), and the trial court granted that motion.

       In the original long form information, each of the four counts at issue read: “Larceny in the Third Degree [The deputy assistant state’s attorney] charges . . . the said Sherman Paul Adams did commit larceny of the property of [name of property owner], valued in excess of Five Thousand Dollars ($5,000.00), in violation of Sections 53a-119 and53arl2U (a) (1) of the Connecticut General Statutes.” (Emphasis added.)
      In the amended long form information, each of the four counts reads: “Larceny in the Third Degree [The deputy assistant state’s attorney] charges. . . the said Sherman Paul Adams did commit larceny of the property of [name of property owner], valued in excess of One Thousand Dollars ($1,000.00), in violation of Sections 53a-119 and 53ar124- (a) (2) of the Connecticut General Statutes.” (Emphasis added.)

       Practice Book § 622 provides: “The judicial authority may order at any time such relief as is required to remedy any defect, imperfection or omission in the indictment, information, or complaint, including the following:
      “(1) Any matter of form;
      “(2) Any miswriting, misspelling, or improper English;
      “(3) Any misuse of a sign, symbol, figure, or abbreviation; or
      “(4) Any omission of the true name or any misspelling of the name of the defendant.”

       General Statutes § 53a-123 (a) provides in pertinent part: “A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and . . . (2) the value of the property or service exceeds five thousand dollars.”

       The state represents that General Statutes (Rev. to 1987) § 53a-124 (a) (1) previously proscribed larceny where “the value of the property or service exceeds one thousand dollars.” In 1988, subsection (a) of § 53a-124 was amended by Public Acts 1988, No. 88-170, to add property consisting of a motor vehicle, the value of which is $5000 or less. That motor vehicle section became the new subdivision (1) of subsection (a), while the former subdivision (1) (property valued in excess of $1000) became subdivision (2) of subsection (a).

       The defendant’s claim implicates that aspect of double jeopardy protection that prohibits multiple punishments for the same crime. State v. Anderson, 212 Conn. 31, 35, 561 A.2d 897 (1989); State v. Raymond, 30 Conn. App. 606, 609, 621 A.2d 755 (1993).

       In Blockburger, the Supreme Court set forth the test: “[WJhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).

       Under State v. Golding, supra, 213 Conn. 239-40, the defendant can prevail on an unpreserved claim of constitutional error “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.”

       In pertinent part, the court instructed: "If you find the defendant guilty of larceny, in order to determine the grade of the offense, that is, larceny in the first degree, the second degree or so forth, with respect to each count, you may add or aggregate the value of property or services stolen with respect to each count. You can only add amounts in each count where thefts were committed pursuant to one scheme or course of conduct, whether from the same or several persons. . . . The statute sets forth the standard you are to use in considering the value of the property or service involved. The value’s important in a minute in determining the grade of the larceny that is charged. Value here means the market value of the property at the time and place of the crime. Market price means the price that would in all probability result from fair negotiations between willing buyers and sellers at the time and place of the crime. The probability being based upon the evidence in this case. In this case evidence has been presented [that] the items claimed to have been stolen had a retail price. If you can determine the price the property sold for at the time and place of the crime, that is the controlling value. If the market price cannot be determined then you should consider the replacement cost of the goods within a reasonable time after the crime. And with respect to the different sites of the crimes and the different witnesses some testified to one, some have testified to another. It is for you to make that determination. If you cannot determine using these standards that the state has proved the value of the property or services beyond a reasonable doubt then you must set the value at less than $250.”
      Following this instruction, the trial court explained the value amounts required for each degree of larceny charged, and for the lesser included offenses of larceny in the fifth and sixth degree.