text:
    Dent & Pflugner, P.A. v. George N. Kalivas et al.
    (4406)
    Borden, Spallone and Bieluch, Js.

      Argued May 8
    decision released August 12, 1986

      Kenneth E. Taylor, with whom, on the brief, was Robert J. Guendelsberger, for the appellant (plaintiff).

      Thomas F. McDermott, Jr., with whom, on the brief, was Bette L. Paul, for the appellee (defendant Demosthenes Kalivas).
   Bieluch, J.

This appeal presents the sole issue of whether a certified copy of a judgment, which is later recorded on the land records of the town where the affected real estate is situated, is sufficient to constitute the recording of a certificate of judgment lien pursuant to General Statutes (Rev. to 1983) § 49-44. We conclude that a certified copy of a judgment is not sufficient for the purpose of recording a judgment lien under the statute.

The facts are not in dispute. On June 24, 1981, a notice of lis pendens was recorded by the plaintiff on the land records of the town of New Milford against real property then owned by Geneva E. Kalivas, but formerly in the ownership of George N. Kalivas. The notice of lis pendens informed of the pendency of an action to set aside a prior transfer of the real estate from George N. Kalivas to Geneva E. Kalivas and to recover damages from George N. Kalivas. Subsequently, there were recorded two transfers of the realty between members of the Kalivas family. On June 21, 1982, the plaintiff obtained a judgment in the Superior Court for the judicial district of Litchfield awarding it some $7000, and setting aside and declaring null and void the previous conveyance of the property from George N. Kalivas to Geneva E. Kalivas, dated January 31, 1980, and recorded in the New Milford Land Records on February 1, 1980, in volume 280, page 2. On August 5, 1982, a copy of this judgment, certified by the clerk of the Superior Court on July 7,1982, was recorded in the land records of New Milford in volume 299, page 286. Two additional transfers within the Kalivas family took place before the foreclosure action commenced, the last being a warranty deed from James N. Kalivas to Demosthenes Kalivas, dated April 12, 1983, and recorded in the land records on April 15, 1983. By writ, summons and complaint dated July 5, 1983, the plaintiff commenced an action to foreclose the “judgment lien” recorded on August 5,1982, in volume 299, page 286. On the same day, the plaintiff caused to be recorded in volume 307, page 1078, of the land records a lis pendens notice for the foreclosure of “a certain Judgment Lien against property owned by George Kalivas, and/or Geneva E. Kalivas and/or Demosthenes Kalivas . . . dated July 7,1983 [sic] and recorded in the Town of New Milford Land Records in Vol. 299 Page 286.”

The defendant Demosthenes Kalivas, the record owner of the property, moved in the trial court for a summary judgment in the foreclosure action for failure of the plaintiff to record a certificate of judgment lien on the land records. The motion was granted and summary judgment was rendered by the court. In its memorandum of decision, the court concluded that a copy of the plaintiff’s judgment did not satisfy the provisions of General Statutes (Rev. to 1983) § 49-44 requiring the recordation of a certificate of judgment lien substantially in the statutory form, specifying the relevant information and “signed by the judgment creditor, his attorney or personal representative.” The plaintiff maintains on appeal that the trial court erred because the certified copy of the judgment which was recorded on the land records allegedly met the requirements of § 49-44. We disagree with this claim.

The certificate of judgment lien required to be recorded by § 49-44 must be “substantially” in the form of the certificate exemplified in that section. The information which must be contained in the certificate is: (1) the name of the party in whose favor the judgment was rendered; (2) the name of the party against whom the judgment was rendered; (3) the amount of damages awarded by the judgment with costs; (4) the amount of the judgment remaining unpaid; (5) a declaration that to secure the amount still due, and lawful interest thereon, a judgment lien in favor of the creditor is thereby placed on the real estate described; and (6) a description of the liened property. Additionally, the certificate must be “signed by the judgment creditor, his attorney or personal representative.” Although § 49-44 speaks of substantial compliance with the prescribed form for a certificate of judgment lien, substantial compliance with the informational requirements contained therein may also be sufficient. Just as with a mechanic’s lien, a judgment lien is “a creature of statute, [and] a lienor must comply with statutory requirements in order to perfect his claim.” H & S Torrington Associates v. Lutz Engineering Co., 185 Conn. 549, 553, 441 A.2d 171 (1981). Nonetheless, substantial compliance with those requirements will also suffice. Id., 556.

The copy of the judgment file signed and certified by the court clerk which the plaintiff recorded on the land records in this case does not substantially comply with the form and informational requirements of § 49-44 and was not signed by the judgment creditor, his attorney or personal representative, parties who would be presumed to know the specific and updated debt information called for by the statute for a proper certificate of judgment lien. The judgment file recorded by the plaintiff by necessity contains only the data of the judgment as of the date of its rendition. It is a copy of the court record of judgment, and not a copy of the business record of the judgment creditor containing the statutory information necessary for a valid certificate of judgment lien, and lacks the authenticating signature required by the statute.

Under the circumstances of this case, the court was correct in concluding that a certified copy of the judgment file recorded on the land records did not satisfy the requirements of General Statutes (Rev. to 1983) § 49-44 and in rendering summary judgment for the property owner.

There is no error.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1983) § 49-44 has since been repealed and replaced by General Statutes § 52-380a. Public Acts 1983, No. 83-581, §§ 14, 39, 40.

       General Statutes (Rev. to 1983) § 49-44 provided in relevant part: “Any suitor having an unsatisfied judgment . . . may cause to be recorded, in the town clerk’s office in the town where the land lies, a certificate signed by the judgment creditor, his attorney or personal representative, substantially in the form following:
      “This is to certify that A.B., of ....... on the . . . day of ... , 19 . . , in the . . . court holden at . . . , in the judicial district of ... , (or in the United States . . . court) did obtain a judgment in his favor, against C.D., of ...... . for the sum of . . . dollars damages, and . . . dollars costs of suit, which judgment remains wholly unsatisfied (or, on which judgment the sum of . . . dollars is still due); and to secure said sums, and the lawful interest thereon, a judgment lien in favor of said A.B. is hereby placed upon the following-described real estate of the said C.D., situate in the town of ... , judicial district of . . . , to wit: (description); pursuant to the statute in such case made and provided. Dated at . . . this . . . day of . . ., 19 . . .
      [signed] A.B.”


source: Caselaw Access Project

author: Spallone, J. Bieluch, J.,

license: Public Domain

text:
    State of Connecticut v. John Leavitt
    (3931)
    Hull, Spallone and Bieluch, Js.

      (One judge dissenting)

    Argued February 13
    decision released August 19, 1986

      Samuel H. Teller, with whom, on the brief, was Randy Lynn Cohen, for the appellant (defendant).

      Bernadette Conway, special deputy assistant state’s attorney, with whom was Susann E. Gill, deputy assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals from his conviction by the court of the crime of disorderly conduct in violation of General Statutes § 53a-182 (a) (1). In this appeal, the defendant claims that the court erred (1) in finding that he had the specific intent necessary to commit the crime of disorderly conduct, (2) in concluding that he had not proved that his conduct was justified, (3) in admitting the alleged victim’s hospital record after portions of it had been deleted, and (4) in denying his motion for a new trial.

The facts are basically not in dispute. The defendant, an East Hartford police officer, is the divorced father of three children. At the time of the incident in question, the defendant’s fourteen year old daughter, Jody Leavitt, lived with the defendant, his fiancee, Susan Coloccio, and Coloccio’s three children. On the evening of Friday, October 5,1984, Jody Leavitt went out for the evening with Coloccio’s daughter Cheryl, who was approximately two and one-half years older than Jody. Although Jody’s normal Friday night curfew was 10 p.m., two hours earlier than that of Cheryl, Susan Coloccio had arranged to extend Jody’s curfew on this occasion. There was conflicting testimony regarding whether that extension was for one or two hours.

When Jody and Cheryl had not returned home by 11:35 p.m., the defendant telephoned Jody at the home where she was visiting. An argument took place between them and the conversation ended with Jody hanging up the telephone on the defendant. The testimony was conflicting on the issue of whether or not Jody’s act was intentional. The defendant immediately called Jody back and demanded that she return home, stating that if she did not come home he would “come down there and drag [you] out of the house and when you come home I’ll kick your ass.” Frightened by what her father might do, Jody and Cheryl walked to Jody’s mother’s house.

When Jody did not return home by midnight, the defendant walked to the home where Jody had been visiting and he was informed that Jody and Cheryl had left for the home of Jody’s mother. The defendant returned home and contacted the police to help him look for the two girls since he did not have a car which was operating at the time. Together with another officer, the defendant checked the neighborhood for the two girls, arriving at the home of Jody’s mother, Donna Leavitt, at approximately 12:15 a.m. When there was no answer at the door, the two officers rechecked the area and returned to the defendant’s home a short time later. The defendant then telephoned Donna Leavitt and asked her to contact him if the two girls arrived at her home. At approximately 2 a.m., the defendant received a telephone call from Donna Leavitt who informed him that the girls were with her, that they would not be permitted to walk home, and that she refused to drive them to the defendant’s house. Later, she permitted her son to drive the girls home.

When the two girls arrived home, the defendant directed Jody to sit on the living room couch. The defendant started yelling and swearing at Jody. He testified that he stated, “I don’t appreciate her roaming around the streets at two o’clock in the morning. I don’t appreciate her telling everybody that I’m going to kick her ass and that I told her that she would be on restriction.” Jody gave the defendant dirty looks or what the defendant calls “witch stares.” In response to the defendant’s hollering and screaming, Jody screamed and hollered that she was afraid to come home.

The defendant then grabbed Jody by the upper arms or shoulders. The defendant started shaking her. As Jody was lying on the couch, the defendant pulled Jody upright by her hair, causing her to bang her head on the arm of the couch. Jody kicked the defendant away. The defendant took hold of Jody and turned her onto her stomach and spanked Jody with the palm of his hand, hitting her on the buttocks approximately four times.

Jody was then sent upstairs to her father’s bedroom. Instead of going into her father’s bedroom, Jody went into the bedroom she shared with Cheryl and directed the latter to call Donna Leavitt. Jody then began to holler. The defendant, allegedly concerned that Jody would wake up twelve year old Susan Coloccio and seven year old Rachel Leavitt, grabbed Jody in a headlock. He “railroaded” Jody through the hallway to his bedroom. En route to the defendant’s bedroom, Jody’s body banged into metal cabinets in the upstairs hallway.

Upon waking at 12:30 the next afternoon, Jody called her mother who arrived at the defendant’s house at 2:30 p.m. Donna Leavitt observed numerous bruises, cuts, and black and blue marks all over Jody’s face, neck, jaw, and shoulders. After Donna Leavitt and Jody walked up the street to a Dunkin Donuts shop, they returned to the defendant’s house, got into the car, and drove to the police station and then to Manchester Memorial Hospital. The medical diagnosis from Manchester Memorial Hospital stated “multiple contusionfs] of [the] head.” Jody filed a formal complaint against the defendant on October 17, 1984.

After a trial, the court rendered an oral decision. The court found, in pertinent part, that “[although the Court is completely sympathetic with the defendant in his efforts to control his wayward daughter, it is with a great deal of regret that the court must find that the defendant is guilty as charged. His extreme physical abuse of a daughter on this particular night, as the state’s attorney has claimed, went over the line. If he could have restrained himself and held back on the physical abuse, it would have been a different story. I know that the finding of guilty in this case will probably cause the defendant’s former wife . . . for want of a better word, happiness. It is unfortunate that people who get divorced don’t know how to let go from each other and I know that the daughter is being used in this case as a weapon but the court has no alternative because its finding is based on the physical evidence before it and I find that the hospital record itself is most indicative of the fact that the defendant used more force than was necessary. So, I find the defendant guilty of Disorderly Conduct.”

The defendant’s first two claims of error, which are closely related, are (1) that the court erred in denying his motion for acquittal and in subsequently convicting him when the state had not proved each element of the crime charged beyond a reasonable doubt, and (2) that the court erred in concluding that the state had disproved the defendant’s claim of justification. We disagree.

Under General Statutes § 53a-182 (a) (l) “[a] person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he . . . [ejngages in fighting or in violent, tumultuous or threatening behavior . . . .” General Statutes § 53a-18 provides that “[t]he use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances: (1) A parent, guardian, teacher or other person entrusted with the care and supervision of a minor . . . may use reasonable physical force upon such minor . . . when and to the extent that he reasonably believes it is necessary to maintain discipline or to promote the welfare of such minor . . . .” This case presents us with the question of determining the interaction between these two statutes.

We start our analysis by noting that justification under § 53a-18 may be invoked where the nature of the conduct proscribed is assaultive. The language in

that statute, which provides that “[t]he use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the [designated] circumstances,” demonstrates the public recognition of the parental right to punish children for their own welfare. (Emphasis added.) It is clear that “[a] parent, being charged with the training and education of his child, has the right to exercise such control and restraint and to adopt such disciplinary measures for the child as will enable him to discharge his parental duty.” 59 Am. Jur. 2d, Parent and Child § 24. Limits on the right of parents to punish their children do, however, exist. The common law rule and the provisions of § 53a-18 (1) require that the use of physical force administered upon a minor child be “reasonable.” Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes Annotated (West) § 53a-18; see General Statutes § 53a-18 (1). Whether that limit has been reached in any particular case is a factual determination to be made by the trier of fact.

We will assume, arguendo, that the language of § 53a-18 is extensive enough to encompass the crime of disorderly conduct in the manner charged, and that the defendant had a right as a parent to exercise that degree of control or restraint as would reasonably enable him to discharge his parental duties. We conclude, however, that such protections, whether recognized by statute or common law, do not shield the defendant under the circumstances present here.

Pursuant to § 53a-182 (a) (1), the crime of disorderly conduct consists of two elements: (1) that the defendant intended to cause, or recklessly created a risk of causing, “inconvenience, annoyance or alarm” and (2) that he did so by engaging “in fighting or in violent, tumultuous or threatening behavior . . . .’’While the trial court’s memorandum of decision, focusing as it does on the injuries received by Jody in the incident, indicates clearly that the second element of disorderly conduct was present in this case, the court, by its determination of guilt, implicitly found the defendant’s requisite “intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof.” We, therefore, “must look to all the evidence produced in support of its decision.” State v. Mitchell, 7 Conn. App. 46, 49, 507 A.2d 1017 (1986), citing State v. Martin, 2 Conn. App. 605, 614, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985).

The standard of review of a sufficiency of the evidence claim, the root of the defendant’s first claim of error, is well established in law. We are limited in our review of the conclusions of the trier of fact. State v. Zdanis, 182 Conn. 388, 391-92, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981); State v. Chetcuti, 173 Conn. 165, 172, 377 A.2d 263 (1977); State v. Benton, 161 Conn. 404, 410, 288 A.2d 411 (1971). That review is the same whether the trier is a judge, a panel of judges, or a jury.

Upon a verdict of guilty, we review the evidence in the light most favorable to sustaining the verdict. State v. Perez, 182 Conn. 603, 606, 438 A.2d 1149 (1981); State v. Zdanis, supra, 391-92. “ ‘When a verdict is challenged because of insufficient evidence, the issue is whether the [trier] could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ ” State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985).

Applying the above principles to the facts and circumstances in this case, we find ample support for the trial court’s implicit finding that the defendant recklessly created a risk of inconvenience, annoyance or alarm, if not for the finding of actual intent to do so. The degree of violence, both physical and verbal, that permeated the confrontation between father and daughter, fully justifies and provides a sound legal basis for the court’s conclusion that the defendant exceeded his limited right as a parent to discipline his child.

Regarding the defendant’s third claim of error, that the court erred in admitting the hospital record of the injuries sustained by his daughter, it cannot be reasonably argued that an official hospital record of the injuries sustained by the victim was irrelevant where the behavior of the defendant was at issue. The determination of relevancy must be made according to reason and judicial experience and the determination of relevance requires the exercise of the court’s discretion. Only when there is an abuse of the court’s discretion in ruling on relevancy will reversal occur. To manifest such abuse, it must be shown that the trial judge’s ruling was so arbitrary that it substantially impaired the defendant’s ability to defend himself. State v. Marra, 195 Conn. 421, 438, 489 A.2d 350 (1985). Evidence is deemed relevant “if it has any tendency in reason to prove or disprove any disputed fact that is of consequence to a determination of the matter in issue.” State v. Briggs, 179 Conn. 328, 332, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980). The facts of this case do not illustrate an abuse of the trial court’s discretion in its admission of the hospital records as evidence of the victim’s injuries.

The defendant’s final claim, that the trial court erred in denying his motion for a new trial, is wholly without merit. Again, our standard of review of the trial court’s denial of a motion for a new trial is limited to a determination of whether, by such denial, the court abused its discretion. State v. Rothenberg, 195 Conn. 253, 264, 487 A.2d 545 (1985). We see no such abuse here.

There is no error.

In this opinion Hull, J., concurred.

Bieluch, J.,

dissenting. I dissent because I believe that the majority has fundamentally miscontrued the nature of the offense of disorderly conduct as defined by General Statutes § 53a-182 (a) (1). The focus of a disorderly conduct charge is that the defendant caused “inconvenience, annoyance or alarm,” either intentionally or recklessly. Indeed, the use of physical force is not the nucleus of disorderly conduct. Thus, two people who engage in a shouting match on a public street can commit the crime of disorderly conduct without ever engaging in assaultive conduct. It is not the physical conduct of a party who “[ejngages in fighting or in violent, tumultuous or threatening behavior” which is the nub of disorderly conduct, but the disturbing effect of such conduct on others.

In State v. Duhan, 194 Conn. 347, 481 A.2d 48 (1984), the Supreme Court ruled that the jury had the right to conclude, on the basis of the evidence presented, that the defendant was guilty of disorderly conduct under General Statutes § 53a-182 (a) (3) proscribing “unreasonable noise” for the following reasons: “[Her] conduct, if not intentional, manifested reckless indifference to the disturbance she was creating. Her conduct was disorderly not because of the language she used but because the noise she made could be found by a jury to be unreasonably disturbing in the particular time, place and circumstances where it occurred. . . . That is the type of conduct which falls within the statute, and the evidence was sufficient to establish that conduct.” (Emphasis added.) Id., 359-60. This judicial delineation of the disorderly conduct statute is also the form of measurement for a conviction of disorderly conduct under § 53a-182 (a) “when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, [a person]: (1) Engages in fighting or in violent, tumultuous or threatening behavior . . . .” Thus, in the present case, the defendant’s conduct, if disorderly, had to be so not because of his behavior, but because of its effect on others.

Under the analysis proposed by the majority, if the defendant’s use of force had been “reasonable,” he would have had available to him the defense of justification under General Statutes § 53a-18 (1) regardless of the extent of the disturbing effect his actions may have had upon others. Further, the majority implies that if the defendant had been charged under any other subsection of General Statutes § 53a-182 (a), his actions would not then have been justifiable under § 53a-18 (1), since no “assaultive” conduct would have been charged against him. In short, the majority improperly focuses on a subsidiary element of one means of committing the offense of disorderly conduct, rather than upon the inconvenience, annoyance or alarm, or risk thereof, which is the heart of a disorderly conduct offense.

Section 53a-18 provides that “[t]he use of physical force upon another person which would, otherwise constitute an offense is justifiable and not criminal under any of the [designated] circumstances.” (Emphasis added.) The crime charged in this case, disorderly conduct, however, was not that the defendant used physical force upon his daughter such as would be the case if he had been charged with assault. Rather, the convicting factor of disorderly conduct is in the inconvenience, annoyance or alarm, or recklessly creating a risk thereof, caused to others. Hence, I would conclude that the justification defense of § 53a-18 (1) is inapplicable to the crime of disorderly conduct since it is a defense to crimes of physical force, rather than to the crime of inconvenience, annoyance or alarm to others, with or without assaultive conduct.

Despite my conclusion that § 53a-18 (1) does not provide a defense of justification to the charge of disorderly conduct, I would nevertheless reverse the defendant’s conviction of that charge.

The only evidence presented of any inconvenience, annoyance or alarm, or reckless risk thereof, caused by the defendant’s actions was of that which was caused to the daughter who he was attempting to punish. Under the majority’s view, a parent cannot corporally punish a child without running the risk of having to defend a disorderly conduct charge based upon the “reasonableness” of the force used. I would conclude that where a child suffers inconvenience, annoyance or alarm by reason of her receipt of punishment from a parent, such inconvenience, annoyance or alarm should not be the basis for a charge of disorderly conduct. Punishment, by its very nature, is designed to cause inconvenience, annoyance or alarm to its recipient, and if it does not do so, it is usually ineffective.

If the objection raised to the punishment in this case is that the force used was excessive, then an assault charge would have been appropriate. The reasonableness of the force used would then have been a proper element of a defense to that charge pursuant to § 53a-18 (1). Since punishment, unlike a reward, is inflicted with the express purpose of causing inconvenience, annoyance or alarm, and since, as the majority concedes, such punishment is recognized as a valid and necessary tool in training and educating children, to which I add developing character, I would conclude that punishment must necessarily be treated as an exceptional circumstance which cannot be the basis to support a disorderly conduct charge where the only person inconvenienced, annoyed or alarmed is the child being punished. Any other approach would hamper the efforts of parents to raise their children with discipline and respect for authority, so that they may become better citizens for their own good and welfare, as well as for the betterment of their community and society as a whole.

For the foregoing reasons, I dissent.

       The defendant was charged, tried and convicted under this specific provision of the Penal Code.


author: Dupont, C. J.

text:
    State of Connecticut v. John Newton
    (3244)
    Dupont, C. J., Hull and Daly, Js.
    Argued May 2
    decision released August 19, 1986

      Joette Katz, public defender, with whom, on the brief, were Joseph G. Bruckmann, assistant public defender, and Anna Martin-Tsoupas, law student intern, for the appellant (defendant).

      Bernadette Conway, special deputy assistant state’s attorney, with whom, on the brief, were Arnold Markle,
      state’s attorney, and Susann E. Gill, deputy assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant was convicted of sexual assault in the first degree, in violation of General Statutes § 53a-7(y and risk of injury to a minor, in violation of General Statutes § 53-21. The defendant has appealed from the judgment rendered on the conviction. His claims of error relate to the propriety of the court’s instructions to the jury. The first issue in this case is whether the trial court erred in instructing the jury on the two types of conduct which can constitute a violation of General Statutes § 53-21, when the defendant was charged only with one. A second issue is whether the court erred in its instructions to the jury on the “threat of use of force” portion of General Statutes § 53a-70.

The jury could reasonably have found the following facts. The victim, who was nine years old at the time of the offense, lived with her mother, two older sisters and the infant child of one of the sisters. The defendant was the boyfriend of the victim’s mother and occasionally stayed overnight at the victim’s house.

On the day of the offense, while one of the older sisters was asleep in one bedroom; the defendant asked the victim, in another bedroom, if she would perform oral sex on him. The defendant held her by the arm so she could not get away, pulled her clothes up and down, touched and sucked her breasts and put his fingers on and inside her vagina. After this incident, the victim told her sister, who contacted her mother. A medical examination of the victim approximately one and a half to two weeks after the incident revealed that the victim had a one by two centimeter hole in the hymen of her vagina. This was consistent with the size of a finger but could also have occurred in the normal development of the child.

The defendant was initially charged by an information, dated April 7,1983, which contained two counts, sexual assault in the first degree and risk of injury to a minor. Neither of those counts was particularized, and the offense of risk of injury was charged generally and included both statutory alternatives. On May 9, 1983, the day the trial began, the state filed a substituted information which, by its language, limited the manner in which the crime of risk of injury was alleged to have been committed. The substituted information specified the date, time and place of the alleged incident, and relied upon only one of the two statutory alternatives set forth in General Statutes § 53-21. In the substituted information, the state charged the defendant with risk of injury to a minor in that the defendant “did an act likely to impair the health or morals of [the victim], a child under the age of sixteen, in violation of Section 53-21 of the Connecticut General Statutes.”

The defendant’s first claim of error is that the trial court erroneously enlarged the crime with which he was charged by reading General Statutes § 53-21, in its entirety, in its opening remarks at the beginning of the trial and by instructing the jury on the entire statute at the conclusion of the trial. At neither time did the trial court explain to the jury that the defendant had been charged with only one portion of the statute.

The state concedes that the trial court erred in instructing the jury on the portion of General Statutes § 53-21 which was not charged. It argues, however, that because the defendant has not demonstrated that the charge prejudiced his defense and resulted in substantial injustice, he should not prevail on appeal.

The defendant did not properly preserve this issue in the trial court by taking an exception to the charge. Practice Book § 854. His claim is reviewable only if the record supports his contention that a fundamental constitutional right is involved. State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); State v. Delgado, 8 Conn. App. 273, 276, 513 A.2d 701 (1986).

An appellate court must ask a series of questions when an Evans claim is made and answer each in the affirmative before continuing to the succeeding question. These questions are as follows: (1) is there an issue raised which facially implicates a constitutional right; (2) is the record sufficient to consider that constitutional claim on its merits; (3) was there, in fact, based on the record, a deprivation of a constitutional right of a criminal defendant; and (4) did the deprivation deny the defendant a fair trial, thereby requiring that the judgment rendered following a conviction by a jury be set aside. The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review. In cases involving a jury instruction where the claimed constitutional deprivation is the enlargement of the crime of which the defendant is accused, the ultimate question is whether it is reasonably possible that the jury was misled. State v. Torrence, 196 Conn. 430, 436, 493 A.2d 865 (1985); State v. Grant, 6 Conn. App. 24, 27, 502 A.2d 945 (1986).

“A defendant is constitutionally entitled ‘to be informed of the nature and cause of the accusation’ against him. Conn. Const., art. I § 8; U.S. Const., amend. VI. ‘Nothing is more elementary in criminal law than that an accused is required to defend only against the charge alleged.’ State v. Genova, 141 Conn. 565, 572, 107 A.2d 837 [1954] (opinion of O’Sullivan, J., dissenting).” State v. Ruiz, 171 Conn. 264, 269-70, 368 A.2d 222 (1976). When an information sufficiently sets out the offense with which a defendant is charged, “the state is limited to proving that the defendant has committed the offense in substantially the manner described.” Id., 270. The purpose of this limitation is to ensure (1) that a defendant is informed of the nature of the crime charged to enable him to prepare his defense and to avoid prejudicial surprise, and (2) that future criminal proceedings for the same offense will be avoided. State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986). Accordingly, the defendant’s claim of enlargement does implicate a fundamental constitutional right. The next question is thus whether the record is sufficient to consider his claim on its merits.

General Statutes § 53-21 proscribes “two general types of behavior likely to injure physically or to impair the morals of a minor under sixteen years of age: (1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor’s moral or physical welfare; see State v. Smith, 149 Conn. 487, 181 A.2d 446 [1962]; and (2) acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being. See State v. Coulombe, 143 Conn. 604, 124 A.2d 518 [1956]; State v. Silver, 139 Conn. 234, 93 A.2d 154 [1952].” State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963); State v. Apostle, 8 Conn. App. 216, 242, 512 A.2d 947 (1986).

In its opening remarks to the jury and in its charge at the conclusion of the trial, the trial court read or paraphrased the uncharged portion of General Statutes § 53-21 five times. It repeatedly stressed that a conviction under that statute would require the jury to conclude, first, that the child was under sixteen years of age and, second, either that the child was placed in a situation wilfully or unlawfully, so that her life or limb was in danger or her health likely to be injured or her morals likely to be impaired, or that acts were directly perpetrated on her person which were injurious to her moral or physical well-being. The court not only read the inapplicable portion of the statute, but also discussed this alternative mode for committing the crime. See State v. Carter, 189 Conn. 631, 645-46, 458 A.2d 379 (1983). Applying the criteria of State v. Evans, supra, we find that the record is sufficient to consider the constitutional claim of the defendant on the merits. See State v. Franko, supra. The next question is whether, on the basis of the record, the defendant was, in fact, deprived of his rights guaranteed by article first, § 8 of the Connecticut constitution and the sixth amendment to the United States constitution.

“ 'We have disapproved the practice of reading an entire statute to a jury where under the pleadings or the evidence only a portion of it is applicable. State v. Ruiz, [supra, 269-72]; State v. Criscuolo, 159 Conn. 175, 177, 268 A.2d 374 (1970).’ State v. Carter, supra, 645. ‘ “While the court may instruct in the exact language of the statute, it should not do so where the exact statutory language might mislead the jury . . . . ” ’ State v. Criscuolo, supra.” State v. Belton, 190 Conn. 496, 501-502, 461 A.2d 973 (1983). As we noted earlier, the ultimate issue in cases such as these is whether it was reasonably possible that the jury was misled by the charge into misunderstanding an issue of fundamental constitutional significance. State v. Torrence, supra; State v. Grant, supra.

The record indicates that evidence was presented at trial regarding the defendant’s disruptive influence on the victim’s household. The defendant occasionally slept at the victim’s house. When he did, the victim, who ordinarily shared a bedroom with her mother, slept with one of her sisters. Both of the sisters testified that they disliked the defendant because he beat their mother. The elder sister testified that he stole her baby’s clothes in order to sell them. The same sister also testified that when the defendant was present, the mother did not pay attention to her daughters and the eldest sister had to take the place of the mother in the family. The middle sister, who at the time of trial was fifteen years old, stated that the defendant stole numerous articles from her. The victim testified that the defendant made promises that he never kept, stole her mother’s checks and beat her mother.

The state admits in its brief that the focus of the evidence of both the state and the defendant was the act involving the sexual assault of the victim. It also states in its brief that the evidence it produced as to the stealing and beatings by the defendant, and the general unwholesome situation in which the victim was placed by him, was not sufficient to convict the defendant of the uncharged statutory alternative.

The defendant’s defense as to both the sexual assault charge and the risk of injury charge was that of simple denial. The focus of his defense and the focus of the state’s case was the sexual incident alleged in the substituted information. The defendant did not take the stand. All of his witnesses, except one whose testimony related to prior alleged misconduct of the victim, testified either directly or indirectly about the alleged rape, or about the date on which it was alleged to have occurred. One witness, unrelated to the defendant, a rental agent, gave alibi testimony, with reference to the date and time of the sexual act as alleged in the substituted information. His other witnesses were the doctor who had treated the victim for the assault, and relatives who testified that the victim had said another person had put his foot or finger into her vagina or that they had heard the defendant agree to buy the victim a training bra. The victim testified that the defendant promised her a training bra during the course of his sexual assault.

An examination of the defense indicates that the evidence which the defendant might have offered had he been charged with the entire statute would logically have differed from that which he did present to defend against the portion of the statute with which he was charged.

It is a fundamental tenet of due process that a defendant charged with a crime has the right to establish a defense. State v. DeJesus, 194 Conn. 376, 388, 481 A.2d 1277 (1984); State v. Delgado, supra, 282. In this case, it is highly likely that the defendant would have pursued an alternative, if not different, defense to the risk of injury count had he been charged with the entire risk of injury statute in the substituted information. For example, he might have introduced evidence to rebut the state’s evidence relating to the portion of the statute with which he was not charged.

“It has been recognized that a charge of risk of injury can include a host of possibilities and a multitude of acts. See State v. Eason, 192 Conn. 37, 470 A.2d 688 (1984).” State v. Apostle, supra, 246. In order to commit an offense under the first part of the broad risk of injury statute, no touching of any part of the body is required. “[T]he creation of a prohibited situation is sufficient.” State v. Perruccio, 192 Conn. 154, 160, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984). In view of the evidence presented and the charge as given, several acts of the defendant, if not his very presence in the victim’s household, might have lured the jury into a consideration of the uncharged portion of the risk of injury statute.

The state admits that there was not enough evidence of acts other than the sexual assault to convict the defendant of the uncharged portion of the statute. The sufficiency of the evidence to convict the defendant of the uncharged portion of the statute by use of the evidence unrelated to the sexual assault is, however, not the question here. It is, rather, whether it was reasonably possible for the jury to have been misled by the instructions of the court. The record indicates that the defendant was not unfairly surprised by the evidence relating to the uncharged portion of the statute, nor by the trial court’s charge to the jury since he did not object to its introduction, or to the charge. The record does, however, show that he was prejudiced in his defense. Unlike the situation in State v. Franko, supra, which also dealt with a statute phrased in the disjunctive and with an alleged unconstitutional enlargement of an offense, the defendant here mounted a defense which consisted of denial. In Franko, the defendant claimed, as to a charge of sexual assault in the first degree, that there was sexual intercourse but that it was consensual. Such a defense encompassed both a charge of threat of force, the claimed enlargement, and a charge of use of force. Since there was sufficient evidence under either alternative of the statute to allow its submission to the jury, the defendant was not prejudiced in his defense. Here, the state agrees that there was insufficient evidence on the uncharged portion of the statute for the defendant’s conviction. Cf. State v. Dahlgren, 200 Conn. 586, 595, 512 A.2d 906 (1986). Therefore, an amendment to the information to charge the entire statute would have been improper, if sought. Furthermore, the uncharged portion of the risk of injury statute could relate to diverse times and places, unlike a charge of sexual assault which is anchored to a particular time and place.

From the very beginning of the trial, before any evidence was presented, the trial court invited the jury to consider both the charged and uncharged portions of the statute. At no point during the trial did the court note that the state limited its accusation to one part of the risk of injury statute. The erroneous instruction, coupled with the evidence introduced at the trial, could have led to the defendant’s conviction “for a crime the elements of which were not alleged in the information. See Fahy v. Connecticut, 375 U.S. 85, 91, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963).” State v. Belton, supra, 504. We therefore hold that in this case there was at least a reasonable possibility that the jury was misled by the trial court’s instructions. Because a new trial will be necessary on the risk of injury count, this conclusion is dispositive of the defendant’s remaining claims of error arising out of that charge.

The defendant also claims that the trial court erred in its instruction on General Statutes § 53a-70 by instructing the jury on the “threat of use of force” portion of that statute, and by failing to define that phrase. In the substituted information, the defendant was charged with compelling the victim “to engage in sexual intercourse by the use of force against her in violation of Section 53a-70 (a) of the Connecticut General Statutes.” The trial court, however, instructed the jury that “[a] person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such person or by the threat of the use offeree against such other person. ” (Emphasis added.)

The defendant contends that the charge as given was erroneous because it did not include a definition of “threat of use of force” and that it is therefore reasonably possible that the jury was misled. He does not argue, in this instance, that the trial court erred by permitting the jury to consider an uncharged alternative ground of liability. He maintains instead that the court, having charged the jury on both the use of force and the threat of use of force, erred by failing properly to guide the jury on the meaning of “threat of use of force.” He contends that this amounted to an omission of an essential element of the crime. The state argues that the instruction was harmless because no evidence was presented at the trial to support a charge of threat of the use of force and that the defendant’s conviction rested solely on his use of superior physical force, an element upon which the jury had been properly instructed.

No exception was made to the court’s charge on General Statutes § 53a-70 (a). Consequently, this claim, like the defendant’s claim as to the risk of injury charge, is reviewable only if it is adequately supported by the record and involves a fundamental constitutional right. State v. Delgado, supra, 276. “A claim that a jury charge omitted an essential element of the crime charged raises an issue of fundamental constitutional dimension. State v. Maltese, 189 Conn. 337, 341-42, 455 A.2d 1343 (1983); State v. Hilliard, 3 Conn. App. 339, 342, 488 A.2d 463 (1985).” State v. Grant, supra, 28. The record here is sufficient for us to review this claim.

The record discloses that the victim testified that the defendant held her arm so that she could not walk away. She also testified that she was not hurt, but that she was scared. A social worker from the department of child and youth services who met with the victim testified that the victim told her that she was very frightened at the time of the incident so that she complied with the defendant’s wishes, but that he did not force her. On the basis of the victim’s description of the incident, it is reasonable to infer that at some point during the incident the defendant released his hold on the victim’s arm in order to accost her sexually, but that the victim did not flee because of her fear of him.

It is fundamental that the trial court “in discharging its function of instructing the jury on the law . . . explain those rules of law which are applicable to the facts of the particular case. See State v. Preyer, 198 Conn. 190, 199-200, 502 A.2d 858 (1985).” State v. Grant, supra, 31. In reviewing a claim of error involving this function of a trial court, our task is not to dissect the charge microscopically, but to view it as part of the whole trial. State v. Kurvin, 186 Conn. 555, 563, 442 A.2d 1327 (1982). In general, an omission in an instruction is less likely to cause prejudice than a misstatement of the law. Id. In this case, our review leads us to conclude that the trial court erred in omitting the statutory definition of “threat of use of force,” but that the error was harmless, that is, that there is no reasonable possibility that the jury was misled. See State v. Cobb, 199 Conn. 322, 325, 507 A.2d 457 (1986).

We have recently had occasion to consider a similar question in State v. Grant, supra. There, the unexplicated statutory language was the word “unlawful” as used in General Statutes § 53a-103 (a), attempted burglary in the third degree. “Unlawful” in that context is defined in General Statutes § 53a-100 (b) as an entry or remaining upon premises “when the actor is not otherwise licensed or privileged to do so.” “Licensed or privileged,” we decided in Grant, was a unitary phrase, rather than two separate concepts, which possessed legal significance bearing upon the state’s burden of proving whether the defendant’s entry on the premises was consensual. Id., 30-31. We thus held that the common understanding of the term “unlawful” was either “too general to be useful or . . . simply not the same as [its] technical meaning . . . . ” Id., 31.

In this case, “threat of use of force” as used and explicated in General Statutes § 53a-70 (a) is not so laden with technical significance. Although General Statutes § 53-21 provides a legislative definition of “threat of use of force,” that definition does not differ substantially, as the defendant argues, from what might be deemed to be the common understanding of the phrase. The statute provides that “the threat of use of force against such other person or a third person” is that which “reasonably causes such person to fear physical injury to such person or third person.” General Statutes § 53a-70 (a). According to Webster, Third New International Dictionary, “threat” means: “1: an indication of something impending and [usually] undesirable or unpleasant . . . a: an expression of an intention to inflict evil, injury, or damage on another [usually] as retribution or punishment for something done or left undone . . . b: expression of an intention to inflict loss or harm on another by illegal means and [especially] by means involving coercion or duress of the person threatened . . . . ”

In construing statutes, the commonly approved usage of the language should control. General Statutes § 1-1 (a); State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983). The defendant has in no way shown that “threat of use of force” was used in the statute in anything other than its ordinary meaning. See State v. Maresca, 173 Conn. 450, 460-61, 377 A.2d 1330 (1977). We therefore cannot conclude that it is reasonably possible that the jury was misled by the failure of the trial court to instruct on the statutory meaning of “threat of use of force.”

There is error as to the risk of injury count only, the judgment finding the defendant guilty of risk of injury to a minor is set aside and the case remanded for a new trial on that count.

In this opinion the other judges concurred.

       General Statutes § 53a-70 provides: “(a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.
      “(b) Sexual assault in the first degree is a class B felony for which one year of the sentence imposed may not be suspended or reduced by the court.”

       General Statutes § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       The defendant was sentenced to a definite term of ten years on the sexual assault in the first degree charge, and to a concurrent term of five years on the risk of injury to a minor charge.

       In its opening remarks to the jury, the trial court stated: “As to the second count, a person violates a section of the law, risk of injury to a minor, if that person wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any child. The questions you have to decide are, was the child . . . under the age of sixteen? Was that child placed in a situation wilfully or unlawfully so that her life or limb was in danger or her health likely to be injured or her morals likely to be impaired, or was there any act done by the defendant likely to impair her health or morals?”
      In its charge at the conclusion of the trial, the court read the entire risk of injury statute and stated that the jury must answer two questions: (1) whether the child was under the age of sixteen; and (2) whether the state had proven beyond a reasonable doubt that the the child was “placed [by the defendant] in a situation wilfully or unlawfully so that her life or limb was endangered or her health likely to be injured, or her morals likely to be impaired, or was there any act done by the defendant to her likely to impair her health or morals .... There are two types of behavior which the second element describes. The first is the deliberate indifference to, acquiescence in, or the creation of a situation harmful to the child’s moral or physical welfare. The second are acts directly perpetrated on the person of the minor and injurious to her moral or physical well-being.”

       While it is true that the evidence presented would support a verdict based solely upon the second portion of the risk of injury statute, this is not the issue before us. “[Wjhat is before us is whether it is reasonably possible that the jury were misled. See State v. Rose, 169 Conn. 683, 688-89, 363 A.2d 1077 (1975). In any event, ‘appellate courts are not free to revise the basis on which a defendant is convicted simply because the same result would likely obtain on retrial.’ Dunn v. United States, 442 U.S. 100, 107, 99 S. Ct. 2190, 60 L. Ed. 2d 743 (1979).” State v. Belton, 190 Conn. 496, 504, 461 A.2d 973 (1983).

       The trial court instructed the jury that the use of force is the “use of a dangerous instrument or use of actual physical force or violence of superior physical strength against the victim.” There was evidence that the defendant, an adult male, held the nine year old victim’s arm in a manner that precluded her from fleeing.

       This conclusion should not be construed as approval of the charge as given. State v. Smith, 194 Conn. 213, 220, 479 A.2d 814 (1984). The better practice would have been for the trial court to have instructed the jury on the statutory definition of “threat of use of force.”


author: Per Curiam.

text:
    State of Connecticut v. Norman E. Whitney
    (4696)
    Borden, Daly and Bieluch, Js.
    Argued June 12
    decision released August 19, 1986

      Norman E. Whitney, pro se, the appellant (defendant).

      James G. Clark, deputy assistant state’s attorney, with whom, on the brief, was Barbara Farrell, certified legal intern, for the appellee (state).
   Per Curiam.

The defendant has appealed from the judgment following his conviction for failure to appear in the second degree in violation of General Statutes § 53a-173, which judgment was rendered pursuant to a conditional plea of nolo contendere entered subsequent to the denial of his motion to dismiss.

The defendant was charged in an infraction complaint in December, 1982, with toll evasion in violation of General Statutes § 13a-162. After failing to answer the infraction charge and to appear at his arraignment, he subsequently was charged by information with additional counts of failure to appear in the second degree in violation of General Statutes § 53a-173 and failure to answer an infraction in violation of General Statutes § 51-164r. Following his conviction by the jury on these charges, he appealed to this court. We set aside the judgment and remanded the case for a new trial due to the state’s lack of diligence in filing its brief. The Supreme Court denied certification. State v. Whitney, 196 Conn. 804, 492 A.2d 1240 (1985). After the remand, the defendant was charged with a single count of failure to appear in the second degree, to which he filed a motion to dismiss claiming a violation of his constitutional rights. After the motion to dismiss was denied, the defendant entered a conditional plea of nolo contendere and, after his judgment of conviction, filed this appeal pursuant to General Statutes § 54-94a.

The defendant initially claims that General Statutes § 53a-173 was applied by the court in contravention of the constitution of Connecticut, article first, § 19, as amended by article IV of the amendments to the constitution of Connecticut, and in contravention of the fifth and sixth amendments to the United States constitution, because the statute improperly compelled the defendant to appear at a pretrial disposition conference after the defendant entered a plea of “not guilty” and elected to be tried by a jury. It appears that the defendant also challenges the constitutionality of Practice Book§§ 687, 700 et seq. The record supplied to us on the appeal, however, is devoid of any challenge to those rules of practice which relate to pretrial disposition conferences and contains no court order requiring the defendant to appear at any pretrial conference pursuant to Practice Book § 700.

The defendant has totally failed to comply with Practice Book § 3060F (c), which provides in relevant part that an appellant’s brief shall contain the following: “A statement of the nature of the proceedings and of the facts of the case. The statement of facts shall be in narrative form, and shall be supported by appropriate references to the page or pages of the record or transcript upon which the party relies. ...”

Furthermore, it is incumbent upon an appellant to ensure that we are provided with an adequate record to review the claims of error. Practice Book § 3060D. The defendant has totally failed to secure such an appellate record, and we are not ordinarily inclined to remand a case to correct a deficiency which the appellant should have remedied. Holmes v. Holmes, 2 Conn. App. 380, 383, 478 A.2d 1046 (1984).

We, therefore, have no basis on which to find error on his claim that he was deprived of his constitutional rights.

There is no error.

       The defendant, while appearing pro se, is a member of the Connecticut bar.

       The record incorrectly refers to General Statutes § 13-162.

       General Statutes § 51-164r provides: “Any person charged with an infraction who fails to pay the fine and any additional fee imposed or send in his plea of not guilty by the answer date or to appear for any trial which may be required shall be guilty of a class C misdemeanor.”

       General Statutes § 54-94a provides in pertinent part: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of defendant’s . . . motion to dismiss, the defendant . . . may file an appeal . . . .”

       General Statutes § 53a-173 provides in pertinent part: “(a) Any person who, while charged with the commission of a misdemeanor and while out on bail or released under other procedure of law, wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear, is guilty of failure to appear in the second degree.”

       Practice Book § 687 provides in pertinent part: “The prosecuting authority and counsel for the defendant . . . may engage in discussions at any time with a view towards disposition .... The prosecuting authority shall be in his office at reasonable times for the purpose of giving to counsel for the defendant ... a reasonable opportunity for consultation with him.”
      Practice Book § 700 provides in relevant part: “After conferring with the clerk, the presiding judge shall assign for disposition conferences so much of the jury trial list as he shall deem necessary for the proper conduct of the court and he shall direct the clerk to print and distribute a list of the cases so assigned to the appearing parties. ...”
      Practice Book § 701 provides in pertinent part: “Unless an agreement has been reached in a previous plea discussion, a case will be assigned for a disposition conference . ”

      Practice Book § 702 provides in part: “The prosecuting authority, the defense counsel, and, in cases claimed for jury trial, the defendant shall appear at the time set for the disposition conference unless excused by the court. ...”


text:
    State of Connecticut v. Edward Cole
    (2815)
    Dupont, C. J., Hull and Borden, Js.

      Argued April 9
    decision released August 19, 1986

      Martin Zeldis, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Bernadette Conway, special deputy assistant state’s attorney, with whom, on the brief, were John Bailey, state’s attorney, Edward Spinella, assistant state’s attorney, and James G. Clark, deputy assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the judgment of conviction rendered in accordance with the jury’s verdict of guilty on one count of robbery in the first degree, a violation of General Statutes § 53a-134 (a) (4), and one count of attempted assault in the first degree, a violation of General Statutes § 53a-49 (a). The issues of this case are whether the trial court erred (1) in allowing the state to amend its information to charge the defendant with a more serious crime after the voir dire of prospective jurors had begun, (2) in providing the jury with an overly broad definition of the crime of robbery in the first degree, and (3) in overruling the defendant’s objection to the filing of an amended information in violation of Practice Book § 833 and in failing to instruct the jury on the essential elements of the crimes as charged in the bill of particulars.

It is essential to an understanding of the issues presented to describe certain facts which the jury could reasonably have found. It is also necessary to compare the state’s two amended informations with the original information and to compare the bill of particulars filed with the third and last information.

The defendant and another person approached two men, John Vasquez and James Carrillo, on a public street. The defendant and his companion pointed guns at the victims and announced “this is a stick-up.” They forced Vasquez into a nearby hallway where they struck him repeatedly and took $30 from his pocket. Carrillo, who had fled initially, returned to the scene in time to see the defendant exiting the hallway, whereupon the defendant fired a shot which barely missed him.

The defendant was originally charged in a three count information with the crimes of robbery in the first degree. See General Statutes § 53a-134; attempted assault in the first degree; see General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (3); and assault in the third degree. See General Statutes § 53a-61 (a) (1). The counts did not identify the victim of each crime. After the parties began the voir dire of prospective jurors, the state was allowed, over the defendant’s objection, to amend the prior information. The court relied on Practice Book § 623 in overruling the objection. This amendment altered the second count of attempted assault in the first degree by referring to General Statutes § 53a-59 (a) (1) rather than to General Statutes § 53a-59 (a) (3), and altered the third count by charging the defendant with attempted assault in the first degree instead of assault in the third degree. See General Statutes §§ 53a-49 and 53a-59 (a) (1). The amended information still did not specify the victim of each crime charged. During the presentation of the state’s case, it filed another amended information which charged the defendant with only two crimes instead of three: one count of robbery in the first degree and one count of attempted assault in the first degree. According to the state, the charge of attempted assault in the first degree, which had been the second count of the first two informations, related to Yasquez, and that charge was dropped in the last amended information. Also according to the state, what had been the third count of the prior two informations related to Carrillo and was now the second count of the last information. The bill of particulars, filed the same day as the last amended information, stated that the defendant “displayed the use of what he represented by his words or conduct to be a pistol” during the commission of a robbery. It also stated that Vasquez was the victim of the robbery and that Carrillo was the victim of the attempted assault. The information and the bill of particulars were both submitted to the jury during their deliberations. The court, however, made no comment in its instructions about the relationship between the two documents, or about any discrepancy between the two.

I

The defendant claims that it was error for the trial court to allow the state to file an amendment to the original information after the trial had commenced, in contravention of Practice Book § 624. Practice Book § 624 provides in part: “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.”

The record indicates that the voir dire of the prospective jurors began on July 20, 1983. On July 22, 1983, the state amended the original information. As previously noted, the second count of the information was amended to charge a violation of General Statutes § 53a-59 (a) (1) rather than General Statutes § 53a-59 (a) (3), and the third count of the information was changed from a charge of assault in the third degree to attempted assault in the first degree. Before we evaluate the substantive effect of the July 22, 1983 amendment, we must first determine whether this amendment was made before or after the commencement of the trial. If the amendment of the information were made before the commencement of the trial, Practice Book § 623 would govern, but if the amendment were made after the commencement of the trial, Practice Book § 624 would apply.

A prosecutor has broad authority to amend an information prior to the commencement of the trial. Practice Book § 623. Once a trial has commenced, however, an amendment may be permitted with leave of the court only for good cause shown and “if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced.” Practice Book § 624. Section 624 of the Practice Book is designed to protect a defendant’s right to fair notice of the charges against him. See State v. Jacobowitz, 182 Conn. 585, 590, 438 A.2d 792 (1981). Relying on cases construing double jeopardy, the state argues that a criminal trial does not commence until the jury is impanelled and sworn. See Crist v. Bretz, 437 U.S. 28, 38-39, 98 S. Ct. 2156, 57 L. Ed. 2d 24 (1978) (Blackmun, J., concurring); Illinois v. Somerville, 410 U.S. 458, 471, 93 S. Ct. 1066, 35 L. Ed. 2d 425 (1973). The interests protected by the prohibition against double jeopardy, however, are not entirely the same as those embodied in Practice Book § 624.

The prohibition against multiple prosecutions protects the defendant from multiple penalties for the same offense or, if acquitted, from the repeated possibility of conviction as well as protection from the anxiety, embarrassment and expense incurred in defending a second trial. See Benton v. Maryland, 395 U.S. 784, 796, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); State v. Couture, 194 Conn. 530, 566, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985).

Those rules of practice relating to the amendment of an information seek to protect a defendant’s right to fair and adequate notice of the charges against him so as to afford him an opportunity to prepare an adequate defense. See State v. Young, 191 Conn. 636, 644, 469 A.2d 1189 (1983); State v. Jacobowitz, supra. The purpose of an information is twofold. It ensures that a defendant will be informed of the nature of the crime or crimes with which he is charged in order to enable him to prepare a defense and ensures that future criminal proceedings for the same offense or offenses will be avoided. State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986). The first purpose is not involved in the defendant’s constitutional right not to twice be put in jeopardy for the same offense, but is involved in the defendant’s constitutional right to fair notice of the charge or charges against him. Thus, the constitutional protections afforded by an information go beyond the protection against double jeopardy. It is the guaranty of fair notice with which we are here concerned, a guaranty distinct from that of the prohibition against double jeopardy.

An effective voir dire cannot be undertaken without knowing the particular offense with which the defendant is charged, including its penalty. The greater the penalty, the greater the need is to conduct an intensive voir dire. The risk of incarceration is greater or lesser depending upon the particular crime involved. Without proper notice of the precise charges against him, a defendant is hampered in the effective questioning of the veniremen to discover and evaluate any bias or prejudice which they may harbor as to the particular crime or crimes involved. It would be difficult to ask appropriate questions in an effort to discover such possible bias or prejudice unless the defendant has notice of the particular charges against him. The voir dire process is “ ‘an integral part’ of the criminal trial . . . . ” State v. Gathers, 197 Conn. 369, 375-76, 497 A.2d 408 (1985) (discussing the right to counsel). We conclude, therefore, that for purposes of Practice Book §§ 623 and 624, a criminal trial begins with the voir dire of the prospective jurors.

Having found that the amendment of July 22, 1983 was made after the commencement of trial, we must now determine whether it affected the substantive rights of the defendant. See Practice Book § 624. The third count of the amendment, which related to Carrillo, changed the original count of assault in the third degree to a charge of attempted assault in the first degree. After the trial has commenced, unless the original and the amended information charge the defendant with the same crime, “an amendment is permissible only to charge a lesser included offense.” State v. Jacobowitz, supra, 590-91. Under Jacobowitz, an amendment which charges a new offense, but not a lesser included offense, is a substantive alteration of the information which is prohibited by Practice Book § 624. The count charging attempted assault in the first degree was a substantively different offense and was therefore an impermissible amendment.

Since that count of the information charging attempted assault in the first degree was invalid, the judgment of conviction as to it must be set aside and a judgment of not guilty directed. See, e.g., State v. Jacobowitz, supra, 593.

II

The defendant also claims that the trial court’s instructions to the jury on robbery in the first degree were erroneous. He alleges that the instructions went beyond what was contained in the information, as modified by the bill of particulars. Specifically, he complains that while the bill of particulars stated that the defendant displayed a pistol, the court instructed the jury on the definition of other firearms listed in the statute. He asserts that such an overly broad instruction disregarded the limitations imposed by the state’s bill of particulars and may have misled the jury into believing that they could have found the defendant guilty had he used a weapon other than the pistol alleged in the bill of particulars.

It is axiomatic that an accused need defend against only those charges which have been properly alleged by the pleadings. State v. Belton, 190 Conn. 496, 501, 461 A.2d 973 (1983). Likewise, once “a bill of particulars has been filed . . . the state is limited to proving that the defendant has committed the offense in substantially the manner described.” State v. Ruiz, 171 Conn. 264, 270, 368 A.2d 222 (1976); see State v. Roque, 190 Conn. 143, 155, 460 A.2d 26 (1983). In charging the jury on the elements of the offense, “ ‘[w]e have disapproved the practice of reading an entire statute to a jury where under the pleadings or the evidence only a portion of it is applicable.’ ” State v. Belton, supra, 501. The court should not instruct the jury in the exact language of the statute where to do so might be misleading. Id., 501-502.

In the present case, the court instructed the jury in the exact language of General Statutes § 53a-134 (a) (1) and included the definition for the terms “pistol, revolver, rifle, shotgun, machine gun or other firearm . ” General Statutes § 53a-134 (a) (4); see General Statutes § 53a-3 (15) through (19). Since the bill of particulars specifically alleged a pistol, the court should have limited its instructions accordingly. Any error, however, which the court may have committed by failing to exclude inapplicable portions of the statute was harmless. “ 'For an erroneous portion of a charge to be reversible error, the court must consider the whole charge and it must be determined, in appeals not involving a constitutional question, if it is reasonably probable that the jury were misled . . . and, in appeals involving a constitutional question, if it is reasonably possible that the jury were misled.’ ” (Emphasis added.) State v. Ruiz, supra, 273. Under either analysis, the error was rendered harmless when the trial court effectively explained to the jury, after the definition of each weapon, that there was no allegation or evidence to show that the weapon used was anything other than a pistol. If we assume, as we must, that the jury followed the limitation on the instructions, it is neither reasonably possible nor probable that the extraneous instructions were misleading.

Ill

The defendant’s final claim of error is that the trial court erred in overruling the defendant’s objection to the filing of the last amended information concurrently with the bill of particulars. The defendant’s objection cites the state’s failure to comply with Practice Book § 833, which provides that “[w]hen any bill of particulars is ordered, an amended or substitute information shall be filed incorporating its provisions.”

Although the court erred by allowing the state to file an amended information which did not comport with Practice Book § 833, we conclude that the error was harmless because it could not reasonably have affected the verdict. See State v. Murrell, 7 Conn. App. 75, 91, 507 A.2d 1033 (1986).

In view of our conclusion that the judgment rendered as to count two of the information upon which the defendant was tried must be set aside, we need only discuss the alleged error as it relates to count one, the count of robbery in the first degree. While the bill of particulars and the information were consistent as to all of the essential elements of the crime charged, the bill of particulars was more detailed as to the events surrounding the alleged offense. The purpose of Practice Book § 833 is to ensure that the defendant be given fair notice of the charges against him. “When the state’s pleadings have ‘informed the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and were definite enough to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense, they have performed their constitutional duty.’ ” State v. Vincent, 194 Conn. 198, 205, 479 A.2d 237 (1984).

In the present case, the defendant cannot argue reasonably that the state’s failure to file its amended information in conformity with Practice Book § 833 deprived him of fair notice of the essential elements necessary for a conviction. Nor can the defendant reasonably argue that the submission of the bill of particulars and the information to the jury without any explanation, could have misled the jury.

The amended information submitted to the jury charged the defendant with robbery in the first degree, a violation of General Statutes § 53a-134 (a) (4). It stated that the robbery was committed in Hartford, on or about December 28, 1981. It also stated that while in the course of the commission of said robbery, the defendant “displayed or threatened to use what he represented by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . . ” The bill of particulars alleged that the defendant, “on December 28, 1981, at approximately 11:30 a.m. on Hampton Street, Hartford, Connecticut,” displayed the use of what he represented by his words or conduct to be a pistol in the course of the commission of a robbery. The bill of particulars also alleged that the defendant committed a robbery, a violation of General Statutes § 53a-133, in that he “threatened the immediate use of physical force upon John Vasquez for the purpose of preventing or overcoming resistance to” the permanent taking of a sum of money.

The only difference between the factual allegations made in the information and the factual allegations of the bill of particulars is that the latter pleading specifies the time of the offense, the street upon which the crime was committed, the name of the victim, and that the weapon used was a pistol. These additional facts were not disputed by the defendant because his defense was one of alibi. The defendant denied being at the scene of the crime and testified that he was washing clothes with his girlfriend during the morning of the commission of the crime. Her testimony corroborated his testimony. The name of the victim was irrelevant to his defense. Whether the jury used the information or the bill of particulars in determining if the defendant was guilty or not guilty of robbery in the first degree would not have changed the result under the facts in this case. We find, therefore, that the trial court's error could not reasonably have affected the jury’s verdict.

There is no error on the first count, robbery in the first degree; there is error on the second count, attempted assault in the first degree, the judgment of conviction of attempted assault in the first degree is set aside and the case is remanded with direction to render judgment that the defendant is not guilty of that crime.

In this opinion the other judges concurred.

       Practice Book § 623 provides in pertinent part: “If the trial has not commenced, the prosecuting authority may amend the information, or add additional counts, or file a substitute information.”

       General Statutes § 53a-59 defines assault in the first degree as follows: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or (2) with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person; or (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person.”

       Assault in the third degree is a class A misdemeanor. See General Statutes § 53a-61. Attempted assault in the first degree is a class B felony. See General Statutes §§ 53a-49, 53a-51 and 53a-59 (b).

       While not controlling in the present case, Practice Book § 956E defines the commencement of a criminal trial to a jury as the commencement of the voir dire examination. Practice Book § 956E governs the tolling of time for the purpose of establishing a defendant’s right to a speedy trial.


author: Hull, J.

text:
    Concetto Beninato, Sr. v. Zoning Board of Appeals of the Town of Bozrah et al.
    (5030)
    Dupont, C. J., Hull, Borden, Spallone, Daly and Bieluch, Js.

      Argued June 5
    decision released August 19, 1986

      Lester Katz, for the appellant (plaintiff).

      Robert C. Leuba, for the appellees (defendants).
   Hull, J.

This opinion is a memorandum of decision on the defendants’ motion to dismiss the plaintiff’s appeal. The named defendant and the defendant Stanley Wilson, the named defendant’s planning and zoning enforcement officer, move to dismiss the plaintiff’s appeal on the ground that it is, in essence, an appeal from a decision upon an appeal from a zoning board of appeals which is permitted only after the granting of certification by this court pursuant to General Statutes § 8-8 (g), and that such certification was denied by this court on May 8, 1986. The plaintiff argues that certification is not required because he is not appealing from a zoning decision but rather from the judgment of the Superior Court denying his application for a writ of mandamus concerning this matter. He asserts, therefore, that his direct appeal is proper.

We turn to the trial court’s memorandum of decision for the necessary background. On January 11, 1979, the plaintiff submitted an application for subdivision approval and a subdivision plan dated August 8,1978, to the Bozrah planning and zoning commission. The application was denied by the commission on June 14, 1979, and the plaintiff appealed to the Superior Court. On April 16, 1982, a judgment by stipulation approving the subdivision was rendered by the court. In the interim, on May 8, 1981, a “revised subdivision plan” was drawn up. That revised subdivision plan was signed by the chairman of the commission on September 29, 1983, and was recorded the same day with the town clerk. On September 27,1984, the plaintiff applied for a building and zoning permit. On October 3, 1984, Wilson denied the application apparently pursuant to General Statutes § 8-25 (a) which requires that “[a]ny plan for subdivision shall, upon approval ... be filed or recorded by the applicant in the office of the town clerk within ninety days of the date such plan is delivered to the applicant . . . and any plan not so filed or recorded within the prescribed time shall become null and void . . . .” (Emphasis added.) The plaintiff appealed to the named defendant, which denied the plaintiffs appeal on December 29, 1984. The plaintiff then appealed to the Superior Court alleging that he was aggrieved by the defendant’s decision and that the named defendant had acted illegally, arbitrarily and in abuse of its discretion by denying his application.

In his complaint, dated January 7, 1985, headed “Appeal from Zoning Board of Appeals and Request for Order of Mandamus,” the plaintiff claimed that as a matter of law his application for a building permit was wrongfully denied because he had complied with General Statutes § 8-25. He asserted at trial that his revised subdivision plan dated May 8, 1981, was approved when he obtained the signature of the chairman of the planning and zoning commission on September 29,1983. Thus, he argued that because the plan was recorded with the town clerk on the same day, it was in compliance with the ninety day requirement of General Statutes § 8-25 and, therefore, valid. Accordingly, in his prayer for relief he requested (1) an order from the trial court reversing the decision of the named defendant and (2) a writ of mandamus ordering Wilson to grant his application for a building and zoning permit.

The trial court concluded that the plaintiff had not shown that the August 8,1978 plan was filed with the town clerk within ninety days from April 16,1982, the date of the stipulated judgment, which the court deemed to be the date the subdivision was approved. It concluded, therefore, that the subdivision plan was null and void pursuant to General Statutes § 8-25. The court also rejected the plaintiff’s claim that his May 8, 1981, subdivision plan was a “resubdivision” under General Statutes § 8-18, which defines resubdivision as a change in a map of an approved or recorded subdivision. The court reasoned that since the 1978 subdivision plan was null and void under General Statutes § 8-25, the May 8, 1981 plan was not a change “in a map of an approved or recorded subdivision.” The court also stated that even if it were to deem the May 8,1981 map a resubdivision, the commission could not have approved it since the plaintiff presented no evidence that the commission held a public hearing on the “resubdivision” as required by General Statutes § 8-26. Finally, the court concluded that other technical requirements of the Bozrah subdivision regulations were not met. The court dismissed the appeal, and the plaintiffs petition for certification to appeal from that judgment was denied by this court on May 8, 1986.

It is clear from this factual background that the dis-positive issue in this motion to dismiss is whether an appeal to this court from a denial of a request for a mandamus in a zoning matter has a separate life or falls with the underlying zoning appeal on which it is based. The plaintiff argues that two cases weigh in favor of the conclusion that a separate appeal from the denial of mandamus lies under the facts and circumstances of this case: Camm v. Hart, 6 Conn. App. 284, 504 A.2d 1388 (1986), and Merlo v. Planning & Zoning Commission, 196 Conn. 676, 680-81, 495 A.2d 268 (1985). The defendant in Camm appealed from the granting of a supplemental judgment of mandamus in favor of the plaintiffs, arising out of a zoning dispute. The plaintiffs, in addition to bringing the action which resulted in the supplemental judgment which the defendants challenged, also brought an appeal of the matter to the zoning board of appeals. Their appeal to the Superior Court from the board’s action was still pending when the defendant appealed to this court. In our decision, this court noted that “the availability of this zoning appeal alone would not necessarily bar the plaintiffs from relief by mandamus to which they are otherwise entitled. See Merlo v. Planning & Zoning Commission, 196 Conn. 676, 680-81, 495 A.2d 268 (1985).” Camm v. Hart, supra 286-87 n.3.

In Merlo v. Planning & Zoning Commission, supra, the plaintiff had sought a writ of mandamus to compel the defendant planning and zoning commission to issue a certificate of approval of a subdivision plan. She claimed that her plan was automatically approved by operation of law because of the commission’s failure to act within the sixty-five day limit set in General Statutes §§ 8-26 and 8-26d. The trial court disagreed, concluding that the commission had acted within the requisite time limit by disapproving the application when it defeated a motion to approve the plan. Accordingly, the trial court rendered judgment in the commission’s favor and the plaintiff appealed to this court. We set aside the judgment of the trial court; see Merlo v. Planning & Zoning Commission, 1 Conn. App. 621, 474 A.2d 477 (1984); and the commission’s petition for certification to our Supreme Court was granted. The Supreme Court reversed the judgment of this court, and, in so doing, discussed the issue involved here, “a jurisdictional issue concerning the propriety of mandamus as a remedy where there is a statutory appeal available, such as that pending, in which a plaintiff includes as one ground for relief essentially the same claim presented in the mandamus action.” (Emphasis added.) Merlo v. Planning & Zoning Commission, supra, 680. The court noted that “[t]he commission relies on the principle that ‘when a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test.’ Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979); see Laurel Park, Inc. v. Pac, 194 Conn. 677, 685, 485 A.2d 1272 (1984). With respect to the extraordinary writ of mandamus, it is well established that an essential prerequisite for issuance of the writ is the absence of any other sufficient remedy. Juliano v. Farrell, 196 Conn. 283, 286, 491 A.2d 187 (1985); Kays, Inc. v. Board of Tax Review, 170 Conn. 477, 480, 365 A.2d 1207 (1976); Milford Board of Education Assn. v. Board of Education, 167 Conn. 513, 519, 356 A.2d 109 (1975).” Merlo v. Planning & Zoning Commission, supra, 680. The court rejected the commission’s arguments and, in so doing, suggested two situations in which jurisdiction over both actions might exist.

The court indicated: “As the Appellate Court noted, this court in several cases has implicitly approved mandamus as an appropriate remedy where it is claimed that a subdivision plan has been automatically approved pursuant to § 8-26 because of the failure of a planning commission to perform its statutory duty within the prescribed time. M & L Homes, Inc. v. Zoning & Planning Commission, 187 Conn. 232, 445 A.2d 591 (1982); Gervasi v. Town Plan & Zoning Commission, 184 Conn. 450, 440 A.2d 163 (1981); Viking Construction Co. v. Planning Commission, 181 Conn. 243, 435 A.2d 29 (1980). In Vartuli v. Sotire, 192 Conn. 353, 366, 472 A.2d 336 (1984), we held that the pendency of a zoning appeal, ‘which could do no more than secure approval of the coastal site plan, which already had been approved by operation of law,’ did not preclude resort to the more expeditious and effective remedy of mandamus in order to ‘vindicate the plaintiffs’ right to the immediate issuance of a building permit.’ The situation is similar in this case, where the plaintiff claims that her subdivision plan has been approved pursuant to § 8-26 by virtue of the inaction of the commission. If the plan has been approved by operation of law, as she contends, her right to certification of its approval by the commission can most directly, completely and expeditiously be effectuated by mandamus. See State ex rel. Brooks v. Hitchcock, 33 Conn. Sup. 686, 690-91, 367 A.2d 692 (1976).” (Footnotes omitted.) Merlo v. Planning & Zoning Commission, supra, 680-81.

The Supreme Court in Merlo also noted another situation where mandamus would be appropriate even though there was a possible remedy via appeal: "Since a court upon appeal from a decision of a planning commission has authority only to ‘review, revoke, modify or affirm any act of such commission,’ it appears that ancillary relief in some form would be necessary where a commission refuses to certify a plan that has been approved.” Merlo v. Planning & Zoning Commission, supra, 681 n.5.

We conclude that neither Camm nor Merlo supports the plaintiff’s position under the facts and circumstances of this case. In Camm, since the zoning appeal was pending, the underpinning of the mandamus action had not yet been ripped out. In Merlo, the plaintiff sought only a mandamus to achieve automatic approval, and, as the Supreme Court made clear, such a remedy was appropriate as a matter of mandamus jurisdictional law. The Merlo mandamus action did not rest on a zoning appeal foundation. In Camm, that foundation was still standing. In this case, the zoning appeal had previously been denied.

The request for a mandamus in this case is logically dependent on the viability of the zoning appeal. It has no life of its own as the similar request did have in Merlo. The trial court in this case stated in the first sentence of its memorandum of decision that “[tjhis is an appeal from a decision of the Bozrah zoning board of appeals (board) denying plaintiff’s application for a building permit and zoning permit.” The trial court then discussed the appeal without mention of the mandamus petition, and the plaintiff did not seek articulation in this regard. See Pointina Beach Assn., Inc. v. Stella, 1 Conn. App. 341, 343, 471 A.2d 970 (1984). The zoning appeal to the trial court did not allege the necessary requisites for the granting of a writ of mandamus, nor did the plaintiff prove them. Thus, not only did the plaintiff not prove a “clear legal right to mandamus,” the trial court found he had no right to the relief requested when it dismissed his zoning appeal.

In Allied Plywood, Inc. v. Planning & Zoning Commission, 2 Conn. App. 506, 480 A.2d 584 (1984), we considered combined appeals involving a zoning appeal and a petition for mandamus arising out of a similar factual background. In the first appeal, the plaintiff Allied appealed to this court from the judgment of the Superior Court which dismissed its administrative appeal from the town planning and zoning commission’s denial of its application for site plan approval. Savin Brothers, Inc., the plaintiff in the companion case, had contracted to sell the subject property to Allied contingent on Allied’s obtaining the site plan approval. Savin appealed to this court from the Superior Court’s denial of its petition for a writ of mandamus to compel the commission to approve the application. We upheld the trial court’s dismissal of the administrative appeal in the first case. We then stated: “Since we have concluded that Allied had no statutory right of appeal, we have negated the court’s reason for denying Savin’s petition for a writ of mandamus, i.e., that Savin had an adequate remedy at law, to wit, the administrative appeal.” Allied Plywood, Inc., v. Planning & Zoning Commission, supra, 509-10. We then followed the logical path by concluding that, since the reason for the denial of the mandamus petition had been dismissed, we had to search the record to see if mandamus was otherwise justified. After so doing, we concluded that the mandamus should have been granted. Allied Plywood thus exemplified one of the possible interrelationships between the two remedies. In that situation, the dismissal of the related zoning appeal mandated the granting of the petition for mandamus, but only because Savin had established a clear legal right to mandamus. The exact opposite is true in the present case where the trial court had found that the plaintiff had no right and this court denied further appellate review of that conclusion.

Echo Four v. Hill, 3 Conn. App. 118, 485 A.2d 926 (1985), is relevant to this case. The plaintiffs brought suit seeking a declaratory judgment finding certain zoning regulations invalid and seeking a mandamus ordering the named defendant building and zoning inspector to issue a certificate of occupancy for certain premises owned by the plaintiffs. That certification had been denied because of the pertinent regulations. The defendants appealed from the judgments rendered and challenged the granting of the twin relief sought. This court found that the trial court lacked jurisdiction to render the declaratory judgment because of the absence of notice to all interested parties. We also determined that the mandamus action was inextricably intertwined with the declaratory judgment action and held that “[t]he mandamus judgment is dependent upon the declaratory judgment and must fall with it. Without the judgment that the pertinent zoning regulations are invalid there is no basis for the issuance of the mandamus.” Echo Four v. Hill, supra, 125.

In this case, the dimissal of the plaintiffs zoning appeal, and the subsequent denial of certification to appeal that judgment, has removed any basis for a writ of mandamus. When we observe an attempted “leap frog” by way of mandamus over the certification requirement in zoning appeals, we must stop the matter in midair. Otherwise, the certification requirement of General Statutes § 8-8 (g) could be hopped over merely by tacking the “mandamus” label on the prayer for relief in a zoning appeal.

The defendants’ motion to dismiss the plaintiff’s appeal is granted.

In this opinion the other judges concurred.

       The defendant Wilson carries various titles in different zoning capacities. For simplicity we have chosen to label him by one of them.

       General Statutes § 8-8 (g) provides: There shall be no right to further review except to the appellate court by certification for review, upon the vote of two judges of the appellate court so to certify and under such other rules as the judges of the appellate court establish. The procedure on such appeal to the appellate court shall, except as otherwise provided herein, be in accordance with the procedures provided by rule or law for the appeal of judgments rendered by the superior court unless modified by rule of the judges of the appellate court.”