text:
    State of Connecticut v. Paul Kennedy
    (7012)
    Daly, O’Connell and Foti, Js.
    Argued October 6
    decision released December 19, 1989

      Laura P. Gordon and Dana E. Shaw, certified legal interns, with whom were Michael R. Sheldon and, on the brief, Timothy H. Everett and ToddD. Femow, and Karen D. Steinberg, Pamela J. Bristol and Claudia Baio, certified legal interns, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were C. Robert Satti, Sr., state’s attorney, and Irving Aronson, former assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, after a jury trial, of larceny in the first degree in violation of General Statutes § 53a-122 (a) (2). The defendant claims that the court erred (1) in denying his two amended motions to suppress, (2) in admitting the testimony of an incompetent witness regarding the value of the items allegedly stolen, and (3) in denying his motion for judgment of acquittal. We find no reversible error.

The following facts are relevant to our resolution of this appeal. On Friday, September 27,1985, during or shortly after Hurricane Gloria, a break-in occurred at the Slater Museum located on the grounds of the Norwich Free Academy in Norwich. A large wooden display case that housed a set of Japanese and Korean pottery and ivory carvings known as Netsukes (Netsuke collection) was ransacked. Mary-Anne Hall, the museum’s docent, and two assistants compiled a complete list of the missing items from inventory cards and gave the list to the Norwich police. Included in this information was a valuation of each item that was based on a 1979 appraisal made by Betty Killam Leavitt, a recognized authority on Netsukes hired by the museum.

On October 8, 1986, the Norwich police obtained a search warrant for 57 Freeman Avenue, Norwich, to search the premises for the defendant. That warrant was based on information provided by the Waterford police department that the defendant was wanted for larceny in the fourth degree, criminal trespass in the first degree and failure to appear in the second degree, crimes unrelated to the museum break-in. Four members of the Norwich police department proceeded to the premises to execute the warrant. Sergeant Robert Bernes was in charge of the search. Officers Kenneth Simoneau, Raymond Perry and Warren Mocek assisted him. Bernes and Simoneau comprised one team and Perry and Mocek comprised a second team; only Bernes and Perry were equipped with radios. When they arrived on the premises, the two teams divided and Bernes and Simoneau entered the one-story house through the front door, while Perry and Mocek entered through the garage located on the lower level.

After several unsuccessful attempts to inform the owner of their presence, Bernes and Simoneau forcibly opened the front door. Once inside, Bernes informed the owner, Pasquale Tamborra, the defendant’s bedridden grandfather, of the purpose of their intrusion. Bernes then remained on the first floor while Simoneau went to the attic to search for the defendant.

Meanwhile, Perry and Mocek entered the house through the lower level basement garage, smashing locks to gain entrance. While searching for the defendant, Perry uncovered a tarpaulin that was bulging and large enough to conceal a man, and observed contraband, money, and an opened nylon gym bag containing two antique pottery bowls and some other artifacts. Perry also saw a label on the pottery that said “Chinese Han Dynasty.” Perry seized the gym bag and notified Bernes of this discovery by radio. Five to ten minutes after Perry had informed Bernes of his discovery, Perry received a call from Bernes who told him that the defendant had been apprehended and the search ended. The defendant was found in the attic by Simoneau, who sought and received Bernes’ help in apprehending and securing the defendant because the opening to the attic was small and the situation was potentially dangerous. After the defendant was taken into custody, Perry brought the gym bag upstairs. Mocek remained at the house to secure the residence.

At least one of the bowls inside the gym bag was later identified by the museum as part of the missing Netsuke collection. The officers obtained a second search warrant that afternoon to search the premises for the remaining artifacts missing from the museum’s Netsuke collection. The officers executed the second warrant the same day and recovered additional artifacts from the missing Netsuke collection in the basement garage. The police subsequently obtained an arrest warrant and arrested the defendant for his participation in the Slater Museum theft.

The defendant filed a motion to suppress the evidence seized during the first search, claiming that it was unconstitutionally seized. The defendant made a separate motion on similar grounds to suppress the museum artifacts seized during the second search. The court denied these motions after determining that the defendant lacked standing to challenge the seizures.

Soon after jury selection began, the defendant filed amended motions to suppress the fruits of the October 8,1986 searches of and seizures from his residence after he obtained additional evidence to show that he had a reasonable expectation of privacy in the basement garage. The court denied the amended motions because it found that the defendant lacked standing. The court further found that even if the defendant had standing, the seizure of the original items was reasonable under the plain view doctrine. At the end of the state’s case, the defendant also moved unsuccessfully for a judgment of acquittal on the ground, inter alia, that the only evidence of value was uncorroborated hearsay. The defendant was convicted after a jury trial and appealed after the court denied his motion for a new trial.

I

The defendant’s first claim is that the trial court erred in denying his amended motions to suppress when it concluded that he did not have standing to raise the motion, and when it concluded that the original seizure was justified under the plain view doctrine. We find no reversible error.

A

The defendant argues, and the state concedes, that the trial court erroneously found that the defendant lacked standing because he did not exercise “sole or exclusive control” over the searched premises. “The capacity to claim the protection of the fourth amendment does not depend upon a property interest, permanency of residence, or payment of rent but upon whether the person who claims fourth amendment protection has a reasonable expectation of privacy in the invaded area. . . . Further, the fact that a person does not have the exclusive use of an area does not bar his having a reasonable expectation of privacy that furnishes standing to object to a government search. Mancusi v. DeForte, 392 U.S. 364, 368, 88 S. Ct. 2120, 20 L. Ed. 2d 1154 (1968); Garrison v. State, 345 A.2d 86, 93 (Md. App. 1975).” (Citations omitted.) State v. Reddick, 207 Conn. 323, 330-31, 541 A.2d 1209 (1988). Id., 330-31. Thus, the court in the present case misapplied the law in determining that the defendant could not have had a reasonable expectation of privacy in the basement garage merely because he did not have sole and exclusive control of the basement garage.

This, however, does not end the inquiry. We must next determine whether the defendant proved that the search and seizure invaded his reasonable expectation of privacy. “Whether a reasonable expectation of privacy exists is a determination to be made on a case-by-case basis.” Id., 331. “That determination entails a two-part inquiry: first, whether the individual has exhibited an actual subjective expectation of privacy, and second, whether that expectation is one society recognizes as reasonable. Katz v. United States, [389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)]; United States v. Cassity, [720 F.2d 451, 456 (6th Cir. 1983), vacated and remanded, 468 U.S. 1212, 104 S. Ct. 3581, 82 L. Ed. 2d 879 (1984), rev’d on other grounds, 604 F. Sup. 1566 (E.D. Mich. 1985), aff d, 807 F.2d 509 (6th Cir. 1986)]; State v. Zindros, [189 Conn. 228, 239, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984)]; State v. Cooper, 9 Conn. App. 15, 20, 514 A.2d 758 (1986).” Id.

After carefully reviewing the record, we conclude that the defendant has demonstrated that his subjective expectation of privacy in the basement garage of 57 Freeman Avenue was reasonable and was an expectation that society would also recognize as reasonable. In an analogous case, our Supreme Court in State v. Reddick, supra, 331, concluded that an adult son or daughter has a reasonable expectation of privacy in his or her parent’s home when living temporarily or permanently with a parent in the parental home. The court further concluded that the defendant had a reasonable expectation of privacy in the the common basement of this two-family house. Id., 332. In the present case, the defendant also had a reasonable expectation of privacy in the basement garage since he is the grandson of the owner, who had lived at the searched residence for more than one year, who had cared for his invalid grandfather, and who had made repairs around the house.

The Supreme Court in Reddick further concluded that the expectation of privacy in the common basement of the two-family house was an expectation that society would recognize as reasonable, where evidence was presented that the basement was secured from the outside and readily accessible only from the two apartments within the dwelling. See id., 333. In the present case, the defendant’s expectation of privacy in the basement garage is also one that society would recognize as reasonable because he secured the basement garage from the outside and controlled access by way of a key.

Although we agree that the trial court erred in finding that the defendant did not have standing to challenge the search, this was not the sole basis of the court’s ruling. The trial court also found that the search was reasonable under the plain view doctrine. We must next turn our attention to this basis for the trial court’s decision.

B

The defendant claims that the trial court erroneously found that the seizure of the original items was reasonable under the plain view doctrine. Specifically, the defendant claims that the trial court erroneously concluded that the state had proved that the seizing officer had the right to be present at the moment he first observed the items, and that there was probable cause to seize the items. We do not agree.

“ ‘ “ ‘Where a police officer has a warrant to search a given area for specified objects, and in the course of the search comes across some other article of incriminating character, the property is seizable under the plain view doctrine.’ . . .” ’ The plain view doctrine may be invoked to validate the seizure of contraband or stolen goods not mentioned in a warrant where two requirements are satisfied: (1) the initial intrusion which enabled the police to view the items was lawful; and (2) the police had probable cause to believe that the items were contraband or stolen goods. State v. Pepe, [176 Conn. 75, 79, 405 A.2d 51 (1978)].” State v. Hobson, 8 Conn. App. 13, 18, 511 A.2d 348, cert. denied, 201 Conn. 808, 515 A.2d 379 (1986), cert. denied, 480 U.S. 917, 107 S. Ct. 1370, 94 L. Ed. 2d 686 (1987).

As to the first plain view requirement, the defendant claims that, although the initial intrusion to the basement garage was lawful pursuant to the search warrant, the state failed to prove that the seizing officer had the right to be where he was at the moment he first observed the items.

The defendant asserts that once the defendant, who was the object of the search, was found, the search should have ended. The precise rule of law, however, is that once a search warrant has been fully executed and the fruit of the search secured, the authority under the warrant expires and further governmental intrusion must cease. United States v. Gagnon, 635 F.2d 766, 769 (10th Cir. 1980), cert. denied, 451 U.S. 1018, 101 S. Ct. 3008, 69 L. Ed. 2d 390 (1981). The technical difference between the words “found” and “secured” is immaterial in the present case in light of the trial court’s specific finding that the defendant was both found and secured after the plain view discovery. See footnote 4, infra.

We will not disturb factual findings unless they are clearly erroneous. See State v. Zindros, supra, 238, quoting Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). In the present case, the trial court made specific findings of fact when it concluded in its memorandum on the defendant’s motion for a new trial that the evidence showed that Perry had discovered the items before Simoneau found the defendant. Because the record supports this finding, we conclude that this finding was not clearly erroneous. Accordingly, the state met its burden of showing that the plain view discovery occurred before the defendant was found.

The defendant further contends that the state provided no basis for the trial judge’s finding that the seizure took place before the defendant was found. Specifically, the defendant argues that the court “conceded” in its memorandum on the defendant’s motion for a new trial that it was possible'that Simoneau could have found the defendant before Perry made his discovery. This argument takes the court’s statement out of context. The actual statement made by the court was “while it is possible that Simoneau.could have found the defendant before Perry made his discovery, this is highly unlikely in view of the activities Simoneau was engaged in before finding the defendant in his hiding place.” (Emphasis added.) Clearly, the court’s determination is that the state had met its burden of showing that the seizure took place before the defendant was found.

As to the second plain view requirement, the defendant claims that the trial court’s conclusion that there was probable cause to seize the items was clearly erroneous. When a legal conclusion of the court is challenged, we must determine (1) whether the conclusion is legally and logically correct, and (2) whether the conclusion finds support in the facts set out in the memorandum of decision. State v. Zindros, supra, quoting Pandolphe’s Auto Parts, Inc. v. Manchester, supra.

We first turn to the requirement that the trial court’s conclusion that Perry had probable cause to seize the gym bag containing the artifacts must be legally and logically correct. “When the police have prior justification for an intrusion and inadvertently come across items of immediately apparent evidentiary value in plain view they may seize those items. . . . The police meet the ‘immediately apparent’ requirement if, on discovery, they have probable cause to associate the property in plain view with criminal activity without further investigation. Arizona v. Hicks, [480 U.S. 321, 324-27, 107 S. Ct. 1149, 94 L. Ed. 2d. 347 (1987)]; White v. State, 729 S.W.2d 737, 740-41 (Tex. Crim. App. 1987).” (Citations omitted.) State v. Reddick, supra, 335.

Numerous definitions have been given to the legal requirements of probable cause. Probable cause to believe that goods are stolen exists when there is enough trustworthy information supporting that proposition that a person of reasonable caution would be justified in believing it. Texas v. Brown, 460 U.S. 730, 742, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983). Probable cause is not susceptible to precise definition, but depends on the nature of each factual situation. State v. Federici, 179 Conn. 46, 57, 425 A.2d 916 (1979), citing Wong Sun v. United States, 371 U.S. 471, 479, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). A practical, nontechnical probability that incriminating evidence is involved is all that is required. Texas v. Brown, supra. Probabilities are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. State v. Lizotte, 11 Conn. App. 11, 20, 525 A. 2d 971, cert. denied, 204 Conn. 806, 528 A.2d 1154 (1987). Our cases have made it clear that there is often a fine line between mere suspicion and probable cause, and that line must necessarily be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances. State v. Hobson, supra, 20.

The record reveals that at the time Officer Perry, made his plain view discovery of the artifacts, he had knowledge of the theft at the Slater Museum in Norwich and knew that antique pottery had been stolen. The record also reveals that these artifacts were discovered hidden underneath a tarpaulin in the basement garage of the house, which further indicates that these artifacts were evidence of criminal activity. In addition, Perry’s testimony that these artifacts appeared to be valuable antique pottery, coupled with the fact that a label stating “Chinese Han Dynasty” — arguably suggestive of a museum label — was next to these items, and the additional fact that the pottery itself had a distinctive appearance, reinforces the reasonableness of Perry’s belief that the artifacts were stolen from the Slater Museum. Under these circumstances, it was legally and logically correct for the trial court to conclude that Perry had probable cause to seize the open gym bag holding the pottery because it was reasonable to believe that the artifacts were connected to the Slater Museum. Cf. State v. Federici, supra (plain view seizure of items, including overcoats, lacked probable cause where the police at the time of the seizure khew only that there had been a robbery within the past half hour, within three miles of the car stop, that the suspects were white males, and that they wore outerwear of no specific color, length or distinction).

We next turn to the requirement that the trial court’s conclusion find support in the facts set out in the memorandum of decision. The court specifically found that “(1) the items taken were extremely valuable and totally unique, (2) having viewed the items, it must be found that they were distinctive; not the type of things that one would expect to find in a Norwich basement, (3) it is logical that Investigator Perry had knowledge of the crime and that antique pottery was taken, and (4) Perry testified to this effect and that he identified the items observed as fitting the description of articles taken from the museum.”

On the basis of our review of the record, we conclude that there was a sufficient factual basis in the record to support the trial court’s findings. See State v. Zindros, supra, quoting Pandolphe’s Auto Parts, Inc. v. Manchester, supra. Accordingly, the trial court’s probable cause determination was not clearly erroneous.

This court does not agree with the defendant’s claim that the court erred in finding that the original seizure was justified under the plain view doctrine. Thus, the court committed harmless error when it denied the defendant’s motion to suppress based on the defendant’s lack of standing.

II

The defendant’s second claim is that the trial court erred in admitting Hall’s testimony that the value of the items seized was over $81,000. Specifically, the defendant argues that the witness was not competent to testify as an expert on the issue of the value of the stolen museum artifacts, the witness’ opinion was taken from inadmissible hearsay, and even assuming that she is an expert, the witness had no independent basis of knowledge to testify on the value of the museum’s missing artifacts. We disagree.

“ ‘The determination of the qualification of an expert is largely a matter for the discretion of the trial court.’ ” Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973); see also State v. Rodgers, 207 Conn. 646, 651, 542 A.2d 1136 (1988). “The trial court’s decision is not to be disturbed on appeal ‘unless that discretion has been abused, or the error is clear and involves a misconception of the law.’ ” Siladi v. McNamara, supra; see also State v. John, 210 Conn. 652, 677, 557 A.2d 93, cert. denied, U.S. 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989).

“ .‘Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.’ ” State v. Rodgers, supra, 651; 2 B. Holden & J. Daly, Connecticut Evidence (1988) § 118a. “Expertise may come from practical experience or study alone. Bryan v. Branford, 50 Conn. 246, 248 (1882). In any event, if reasonable qualifications are established, objections go only to the weight to be given to the witness’ opinion rather than to its admissibility.” State v. Wallace, 181 Conn. 237, 241, 435 A.2d 20 (1980).

The record reveals that Hall had been employed as a docent at the Slater Museum for nineteen years. She was familiar with the stolen Netsuke collection and gave weekly lectures about the museum’s collections. She had a master’s degree in art and had participated in an intensive program in East Asian studies. This witness had sufficient education and personal knowledge about the stolen collection to render a competent opinion as to the value of these missing artifacts despite the fact that she had never previously evaluated collections. See Oborski v. New Haven Gas Co., 151 Conn. 274, 280, 197 A.2d 73 (1964). Therefore, the defendant’s objection went to the weight to be given the witness’ opinion and not to its admissibility. Id. The trial court did not abuse its discretion in qualifying Hall as an expert on the value of the missing museum artifacts.

The trial court also properly permitted Hall to testify from the inventory list and appraisal made by Leavitt. “ ‘An expert may testify to value, though his knowledge of details is simply derived from inadmissible sources, because he gives the sanction of his general experience.’ ” Burn v. Metropolitan Lumber Co., 94 Conn. 1, 6, 107 A. 609 (1919), quoting National Bank of Commerce v. New Bedford, 175 Mass. 257, 261, 56 N.E. 288 (1900).

Further, the trial court was correct in finding that Hall derived her information from trustworthy sources and that she based her opinion of the missing Netsuke collection’s value not only upon Leavitt’s inventory and valuation, but also upon her own experience as an East Asian expert, which was sufficient to enable her to coordinate and evaluate the information in the appraisal and to make her evidence of probative value. See Dressel v. Gregory, 114 Conn. 718, 719, 157 A. 417 (1931); Vigliotti v. Campano, 104 Conn. 464, 466, 133 A. 579 (1926); cf. State v. White, 37 Conn. Sup. 796, 802, 437 A.2d 145 (1981) (security guard could not testify to value of stolen retail merchandise because her testimony was not based on her personal knowledge or experience, but retail tags were admissible to show value).

Ill

The defendant’s third claim is that the state did not meet its burden of proving that the value of the stolen artifacts exceeded $10,000. We disagree.

“When an appeal challenges the sufficiency of the evidence to justify a verdict of guilty, we have a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the verdict.” State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985). “We then determine whether ‘ “the jury 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.” ’ ” Id.

Applying this test to the specific issue of whether the state proved beyond a reasonable doubt that the value of the artifacts at the time they were taken exceeded $10,000, we conclude that the state met its burden. Our review indicates that the evidence before the jury included Hall’s testimony, as well as the inventory and the appraisal of each item, which were admitted as an exhibit. There was thus sufficient evidence concerning the element of value to establish that the defendant was guilty of larceny in the first degree. Accordingly, the trial court properly denied the defendant’s motion for judgment of acquittal.

There is no error.

In this opinion the other judges concurred.

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

       A docent is “a person who conducts guided groups through a museum or art gallery and discusses and comments on the exhibits.” Webster, Third New International Dictionary. At trial, Hall described her particular role as a person who teaches about the museum’s collections.

        State v. Hobson, 8 Conn. App. 13, 18 n.7, 511 A.2d 348 (1986), states that it is unclear whether a third requirement, that the police discover the items inadvertently, should be applied. The court continues, however, that in Connecticut, “ ‘inadvertence is not required if the items seized fall under the category of contraband, stolen property or objects dangerous in themselves.’ ” Id., quoting State v. Couture, 194 Conn. 530, 547, 482 A.2d 300, cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1984). In the present case, the court concluded that the museum artifacts were discovered inadvertently. Because the defendant has not challenged that conclusion, on appeal we need not determine whether the trial court’s conclusion was clearly erroneous, or whether the trial court even had to make this conclusion.

       The trial court stated: “The evidence, however, shows the sequence of events to be as follows: first, the entry by both teams; second, Perry discovered the items in the basement; third, Perry notified Bernes of his find; fourth, Simoneau found defendant in the attic; fifth, defendant was taken into custody and. brought down to Bernes on the main floor; sixth, Bernes radioed Perry to terminate the search; and seventh, Perry came upstairs with the seized items.”

       In Ms motion for a new trial, the defendant raised a different claim, namely that the original search was a general search of the premises and not a search for the defendant, and thus was not inadvertent. Presumably, the defendant has put in issue the correctness of the underlying factual findings of the trial court as to the timing of the events that led up to Perry’s original search, even though these findings were in response to the legal conclusion that the original search was not inadvertent. Since this particular legal conclusion is not an issue on appeal, we will address only the correctness of the underlying factual findings and not the legal conclusion that the search was not inadvertent.

       This is substantiated in the record:
      “Q. Miss Hall, evaluations that you put on this, is this your opinion as to the valuation of these items?
      “A. Yes.
      “Q. All right.
      “A. Derived from Mrs. Killam’s appraisal.
      “Q. But that’s your opinion also ....
      “A. Yes.
      “Q. As an expert in this field, are these the valuations that you would place on it, if you were placing valuations yourself?
      “A. Yes.”

       The defendant claims that the judge gave a limiting instruction that would have prevented the jury from considering the exhibit if Hall’s testimony was not competent. Our review of the record indicates that the exhibit was fully admitted and the jury was entitled to give probative weight to this exhibit.


source: Caselaw Access Project

author: Norcott, J.

license: Public Domain

text:
    State of Connecticut v. James J. Siano
    (6799)
    Daly, Norcott and Foti, Js.
    Argued October 18
    decision released December 19, 1989

      John S. Pinney, with whom was Thomas E. Gaffey, for the appellant (defendant).

      John O’Meara, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, Warren Gower, assistant state’s attorney, Paul Gaetano, deputy assistant state’s attorney, and Michael E. O’Hare, special assistant state’s attorney, for the appellee (state).
   Norcott, J.

The defendant appeals from the jury verdict convicting him of burglary in the second degree in violation of General Statutes § 53a-102 and larceny in the second degree in violation of General Statutes § 53a-123. He claims that the trial court erred (1) in failing to require the state to produce the criminal history of one of its witnesses, Carmine Sarno, or, in the alternative, in failing to strike his testimony, and (2) in failing to instruct the jury on the issue of credibility of an accomplice witness. We find no error.

I

The following facts are relevant to the first issue of this appeal. At trial, the state called Carmine Sarno as a witness. Sarno testified that on the evening of May 25,1986, he picked up the defendant at his home in Springfield, Massachusetts, and the two drove to Enfield, looking for a house to burglarize. Sarno stated that, at the defendant’s suggestion, they selected a house on Lois Lane, the home of Joanne and Albert Kneiss.

Sarno said that at approximately 8 p.m. he parked his vehicle on the street behind the targeted house. Sarno and the defendant then entered the Kneisses’ backyard and unsuccessfully attempted to pry open sliding glass doors leading into the house. They eventually were able to enter through a kitchen window. The Kneisses were not at home at that time.

According to Sarno’s testimony, the defendant went upstairs to search for items to steal while Sarno searched the first floor. Sarno eventually met the defendant upstairs where they discovered a personal computer; the defendant suggested that they take it, and Sarno agreed. Sarno took the computer from the house and put it in his car.

Sarno then returned to the house to help the defendant collect additional items. When they left the house, the defendant was carrying a pillowcase full of jewelry and various other items.

On direct examination by the state, Sarno testified that he had pleaded guilty to this and other Connecticut burglaries. He testified that he had been incarcerated as a result of those pleas, but had been released early. Sarno also testified that he was waiting to be sentenced for other burglaries in Massachusetts and that the Massachusetts prosecutors had made no promises to him.

At the conclusion of this testimony, the defendant moved, pursuant to Practice Book § 744, for disclosure of Sarno’s record of felony convictions and of any pending felony and misdemeanor charges. He also moved, in the alternative, that Sarno’s testimony be stricken. The court denied both motions, and the defendant excepted. The state, in response to the defendant’s expressed concerns, moved to reopen direct testimony to elicit more specific information from the witness about his criminal history. The court allowed this questioning.

During this additional direct examination, Sarno testified that he had no Massachusetts felony convictions but that there were eighty to ninety burglary charges pending against him in Massachusetts at the time of his testimony. During cross-examination, defense counsel questioned Sarno extensively about his criminal history and his motive for testifying.

The defendant claims that it was error for the trial court to deny his request, made at the close of direct examination, for disclosure of Sarno’s criminal history pursuant to Practice Book § 744. He argues that because this information was readily available to the state, the trial court erred in ruling that the state had revealed “all it knew” about Sarno’s record. The defendant asserts that he should not be required to rely upon the testimony of a witness whom he intends to impeach to provide reliable information about his criminal record. The state counters this argument by asserting that it complied with § 744 by eliciting from the witness information about his own criminal history. It contends that it disclosed all the information that was known, and it does not bear the burden of obtaining more information for the defendant.

The trial court, after repeatedly asking the state’s attorney if he had disclosed all that he knew about Sarno’s record of felony convictions and pending charges, accepted the state’s affirmative response and ruled that the state had complied with Practice Book § 744. We find no error.

Legal conclusions made by the trial court must stand unless they are legally and logically inconsistent with the facts. State v. Williamson, 10 Conn. App. 532, 537, 524 A.2d 655, cert. denied, 204 Conn. 801, 525 A.2d 965 (1987). This court may reject a factual determination by the trial court only if it is clearly erroneous. Id.; see also Cook v. Nye, 9 Conn. App. 221, 225, 518 A.2d 77 (1986).

The trial court first made the legal conclusion that the state’s attorney was required to disclose the records of felony convictions and pending charges of the state’s witness that were known to the state. This conclusion is supported by the plain language of Practice Book § 744.

Practice Book § 744 requires that “[a]fter a witness called by the state has testified on direct examination, the prosecuting authority shall disclose any record of felony convictions of the witness known to the prosecuting authority and any record of felony or misdemeanor charges pending against the witness known to the prosecuting authority.” (Emphasis added.) This language plainly requires that the prosecutor release all such information in his possession. Indeed, the state has an affirmative duty to disclose, but that duty is not unlimited. There is no authority that would require him to procure further information for the defendant.

The court then made the factual finding as to whether the prosecutor had revealed all of the information known to him or whether he had failed to comply with § 744 by withholding information. After the defendant moved for disclosure, the trial court asked the state’s attorney: “Mr. Gaetano, are you saying that’s all that’s been testified to and that’s all you know? Is that correct?” The state responded affirmatively, and the court instructed defense counsel: “You have to take [the state’s attorney] at his word. If you have other information that there are other charges pending against the witness somewhere else or other convictions . . . that’s another thing.” The defendant offered no “other information,” and the court ruled that the prosecuting authority, while under an obligation to disclose the records of his witnesses of which he is aware, is not under any obligation to obtain information for the defendant.

The court then, as a point of emphasis, asked the state’s attorney, “Mr. Gaetano, as an officer of the court, as the state’s attorney’s office, has the state’s attorney’s office turned over — has it disclosed the record of felony convictions of this, witness known to it and any pending felony or misdemeanor crimes known to you?” The state responded, “Yes, Your Honor. The state has brought that out on direct examination, and will be willing to be more specific in further inquiry.” After reiterating the question and receiving the same answer, the court overruled the defendant’s motion to strike and also implicitly found that the state’s attorney had complied with § 744 by revealing all that he knew about his witness’ criminal record. This colloquy between the court and the state’s attorney makes it clear that the trial court’s finding that the state revealed all that was within its knowledge was factually supported by the evidence. That ruling, therefore, is not clearly erroneous. See Cook v. Nye, supra.

In his attempt to prove that the state had access to more information than it provided regarding Sarno’s criminal history, the defendant asks this court to take judicial notice of the transcript from the sentencing proceedings of Sarno on his Connecticut charges. The defendant, however, never brought this information to the attention of the trial court, even after having been prompted by the court.

As a general rule, this court will not take judicial notice of facts that were not available to the trial court at the time of trial. State v. McCarthy, 197 Conn. 247, 249 n.2, 496 A.2d 513 (1985). “The true concept of what is judicially known is that it is something which is already in the court’s possession or, at any rate, is so accessible that it is unnecessary and therefore time wasting to require evidence of it. . . . Judicial notice, therefore, in its appropriate field, meets the objective of establishing facts to which the offer of evidence would normally be directed.” (Citation omitted.) State v. Tomanelli, 153 Conn. 365, 368, 216 A.2d 625 (1966).

This is not an appropriate case for judicial notice. The transcript that the defendant seeks to have judicially noticed was never made available to or brought to the attention of the trial court. Compare Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 552 A.2d 796 (1989) (where reviewing court took judicial notice of documents in Superior Court file); Scott v. Scott, 190 Conn. 784, 462 A.2d 1054 (1983) (where reviewing court took judicial notice of facts which were in the Superior Court record for that same case); Farm Bureau Mutual Auto Ins. Co. v. Kohn Bros. Tobacco Co., 141 Conn. 539, 107 A.2d 406 (1954) (judicial notice taken of another court’s file because file was referred to in stipulated facts). Further, it does not contain the type of information that is commonly known or generally accepted. Compare State v. Zayas, 195 Conn. 611, 614, 490 A.2d 68 (1985) (time of sunrise and sunset judicially noticed);State v. Erickson, 574 P.2d 1, 7(Alaska 1978) (holding that scientific facts are judicially noticeable).

Because the trial court was unaware of this transcript and because it did not contain generally known facts, we will not take judicial notice of it. To do so would be inconsistent with our function as an appellate court and unfair to the trial court. See State v. McCarthy, supra.

We find that the trial court’s ruling was legally correct. Further, based upon the facts before that court, the ruling was factually supported. There is no error.

II

The defendant next claims that the trial court erred in failing to instruct the jury specifically on the credibility of accomplice testimony. The defendant requested that the jury be instructed, in accordance with State v. Shindell, 195 Conn. 128, 486 A.2d 637 (1985), that, in assessing the credibility of an accomplice, it should scrutinize that testimony, bearing in mind that the accomplice-witness may have an interest in the outcome of the case.

The state argues that this claim is not reviewable because the defendant did not take exception to the instruction as given, thereby forfeiting his right to appellate review of this issue. The state further contends that if the claim is reviewed, the defendant is not entitled to the instruction requested because Sarno, although admittedly an accomplice, had been released from confinement prior to trial, and, therefore, his case was “disposed of” prior to trial.

Before reviewing the merits of this claim, we must address the state’s challenge to its reviewability. Although the defendant did not except to the jury instruction given, he did, as the state acknowledges, file a request to charge. An appellate court can review a challenge to a jury instruction if “the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered.” (Emphasis added.) Practice Book § 852; see also State v. Shindell, supra, 142; State v. Bowden, 15 Conn. App. 539, 549, 545 A.2d 591, cert. denied, 209 Conn. 810, 548 A.2d 438 (1988). This authority is not only recognized by, but is also cited in, the state’s brief. This claim, therefore, has been properly preserved for appeal.

Next, we address the state’s claim that the defendant was not entitled to this charge because the state had no leverage over Samo, and, for that reason, the jury charge did not apply to this witness. At trial, Samo testified that the charges against him for the burglary in question were nolled and his sentence was modified as part of a plea agreement that required him to testify against the defendant.

The entry of a nolle prosequi is not a bar to a subsequent prosecution. Hing Wan Wong v. Liquor Control Commission, 160 Conn. 1, 5, 273 A.2d 709 (1970), cert. denied, 401 U.S. 938, 91 S. Ct. 931, 28 L. Ed. 2d 218 (1971). While the entry of a nolle does terminate a particular prosecution, it does so without an acquittal and without jeopardy ever attaching. The defendant, therefore, “remains vulnerable to reinstatement of a prosecution against him.” State v. Herring, 209 Conn. 52, 57, 547 A.2d 6 (1988); see also State v. Gaston, 198 Conn. 435, 440-41, 503 A.2d 594 (1986); Hing Wan Wong v. Liquor Control Commission, supra. Because the state could use the potential reinstitution of the prosecution as leverage over the witness, the state’s claim that the witness had no interest in the outcome of this case against the defendant is unpersuasive.

Having resolved these preliminary matters, we now reach the merits of the claim that the trial court’s instructions, were erroneous. In reviewing a challenge to jury instructions, “[t]he charge is to be read as a whole and individual instructions are not to be judged in ‘artificial isolation’ from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Citations omitted.) State v. Estep, 186 Conn. 648, 652, 443 A.2d 483 (1982); see also State v. Stepney, 191 Conn. 233, 247, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).

When an accomplice-witness is involved, the inherent unreliability of that accomplice’s testimony ordinarily requires a caution to the jury. State v. Estep, supra; State v. Colton, 174 Conn. 135, 141, 384 A.2d 343 (1977). “ ‘ “[Wjhere it is warranted by the evidence, it is the court’s duty to caution the jury to scrutinize carefully the testimony if the jury finds that the witness intentionally assisted in the commission, or if he assisted or aided or abetted in the commission, of the offense with which the defendant is charged.” (Emphasis in original.) State v. Ferrara, 176 Conn. 508, 512, 408 A.2d 265 (1976); State v. Colton, [supra].’ ” State v. Edwards, 201 Conn. 125, 156, 513 A.2d 669 (1986); State v. Shindell, supra, 142; State v. Smith, 16 Conn. App. 223, 227, 547 A.2d 102 (1988). Refusal to charge in the exact words of the request, however, is not error if the substance is given. State v. Edwards, supra; State v. Shindell, supra, 143; State v. Estep, supra, 653.

In this case, the trial court instructed the jury that Carmine Sarno was a self-confessed accomplice. While it did not specifically instruct on accomplice credibility, the court did charge the jury generally on assessing the credibility of witnesses and considering any biases those witnesses might have. The court further informed the jury that Sarno had felony convictions against him and that it could use those felony convictions as a basis for discrediting Sarno’s testimony.

Based upon the charge as a whole, it is reasonable to conclude that the jury knew that Sarno was a self-confessed accomplice, that he had felony convictions against him, and that it could use that information, as well as any other observations it had made, in assessing his credibility. Our review of the instruction leads us to conclude that the trial court substantially complied with the defendant’s request, albeit not in the exact words of that request.

There is no error.

In this opinion the other judges concurred.

       The state, alternatively, argues that this claim should not be reviewed because it deals with a discovery motion that is properly a pretrial motion, and the defendant’s motion for disclosure was untimely because he waited until after direct examination. This argument is without merit. Practice Book § 744 clearly places an affirmative duty on the state to disclose the criminal history of its witnesses after they have testified on direct examination. The state recognized this requirement with its concession during oral argument.

       Although in State v. Whitaker, 202 Conn. 259, 265, 520 A.2d 1018 (1987), our Supreme Court cites Practice Book § 744 as the rule governing the discovery of information “at the trial court’s discretion,” it is clear from the language of that rule that there is no judicial discretion involved. The language of the rule mandates disclosure. See Practice Book § 744.

       The defendant could have filed a pretrial discovery motion pursuant to Practice Book § 741 and attempted to make a showing of materiality. Under Practice Book § 744, however, this is neither necessary nor appropriate. The prosecutor has an affirmative duty to release only that information that he knows.

       On cross-examination, defense counsel asked Samo: “You pled guilty to burglaries but you got a break from the state on this one, because they nolled this one, correct? In other words, they didn’t prosecute it, it was thrown out? . . . The state threw this out as part of your plea bargain arrangement. Isn’t that correct?” The witness responded affirmatively. Sarno further testified that this plea agreement included a modification of his sentence. He stated on the record, “I’m here testifying because when my modification came up that got me out of prison in Connecticut, the judge told me that one of the reasons he was going to let me out was to come back here and testify against [the defendant] .... I took it as an order.”

       Specifically, the court instructed the jury: “In weighing the testimony of a witness, you should consider his or her appearance upon the stand. You should try to size up the witness. You should have in mind those circumstances which point to his or her truthfulness. You should consider any possible bias or prejudice that that person may have, whether for or against the accused. You should consider his interest or lack of interest of whatever sort in the outcome of the trial . . . .”

       The court instructed the jury as to Carmine Sarno: “One witness who described himself as an accomplice in the crime . . . testified and admitted, as I recall, to being convicted of two burglaries in this state. I instruct you that where there is testimony by a witness that has had prior felony convictions or one or more felony convictions, burglary is a felony, that fact may be weighed by you in testing the credibility of that witness.”


text:
    Public Storage, Inc. v. Eliot Street Limited Partnership et al.
    (7804)
    Borden, Daly and Norcott, Js.
    Argued November 7
    decision released December 19, 1989

      JohnM. Clay don, Jr., with whom, on the brief, was Thomas J. Ryan, for the appellant (defendant Virginia McClinch).

      Lewis S. Lerman, with whom, on the brief, was William P. Yelenak, for the appellee (plaintiff).
   Norcott, J.

The defendant Virginia McClinch appeals from the trial court’s judgment concluding that the plaintiff’s adverse use extinguished the defendants’ easement over the plaintiff’s property.

The facts are not in dispute. The plaintiff brought this action against sixteen defendants including McClinch, the sole appellant. The plaintiff sought to extinguish the defendants’ easement across its property. The easement existed as of record since 1922. The plaintiff’s predecessor in title had acquired the property in 1940, erected a building upon it and placed a six foot high chain link security fence around the building. The fence traversed and blocked the easement.

The plaintiff sought (1) an injunction restraining the defendants from removing the fence, and (2) a judgment determining the rights of the parties with respect to the easement. From the trial court’s decision against the defendants, only McClinch now appeals.

McClinch claims that the trial court erred (1) in finding that the erection of the chain link fence across the easement commenced the running of the prescriptive use period, (2) in failing to find that the specific intent to extinguish the easement was a necessary element of its cause of action, and (3) in failing to apply a “clear and convincing” evidence standard to this case. We find no error.

Regarding McClinch’s first claim, we note that the question of whether the actions here were sufficient to constitute adverse use of the defendants’ easement is a question of fact. Robert S. Weiss & Co. v. Mullins, 196 Conn. 614, 618, 495 A.2d 1006 (1985); Lavin v. Scascitelli, 172 Conn. 8, 9, 372 A.2d 127 (1976); Ruggiero v. East Hartford, 2 Conn. App. 89, 96, 477 A.2d 668 (1984). We will not disturb the trial court’s findings unless “the subordinate facts found are legally or logically inconsistent with or are insufficient to support that conclusion.” Matto v. Dan Beard, Inc., 15 Conn. App. 458, 474, 546 A.2d 854, cert. denied, 209 Conn. 812, 550 A.2d 1082 (1988); see also Russo v. Terek, 7 Conn. App. 252, 257, 508 A.2d 788 (1986). Here, the trial court found, on the basis of the evidence before it, that the fence has been permanent, without the acquiescence of the defendants’ predecessor, throughout the prescriptive period. See Russo v. Terek, supra (factual situation very similar to present case). We find no reason to disturb that finding.

McClinch’s next claim of error is equally without merit. We first note that her claim that the trial court implicitly failed to find specific intent as an element of the extinguishing of an easement by adverse use is inconsistent with her concession that part of the easement was extinguished by the erection of the plaintiff’s building. McClinch makes this concession even though no evidence of a specific intent to extinquish the easement by erecting the building, other than the act itself, can be found in the record.

The elements necessary to establish the plaintiff’s prescriptive rights are clear. “ ‘ “[I]f the servient owner . . . should by adverse acts lasting through the prescriptive period obstruct the dominant owner’s . . . enjoyment, intending to deprive him of the easement, he may by prescription acquire the right to use his own land free from the easement.” ’ ” Russo v. Terek, supra, 255.

Citing Russo, McClinch argues that an explicit showing of specific intent is a necessary element of prescriptive use. Russo, however, does not support that contention. In Russo, the defendant property owner built an outdoor fireplace that blocked passage by a motor vehicle over the plaintiff’s right-of-way, thereby limiting its use to foot passage only. The defendant used this fireplace on a continuous basis. Several years later, the defendant planted a garden, shubbery, trees and lilac bushes on the rest of the right-of-way adjacent to the fireplace, making the passage of pedestrians almost impossible as well. Id., 253. The factfinder in that case found, and the trial court accepted, that the defendant had extinguished the plaintiffs right to use the right-of-way by his acts, which were adverse to the easement. Id., 254-55.

McClinch also places reliance upon American Brass Co. v. Serra, 104 Conn. 139, 132 A. 565 (1926). In American Brass, the defendant’s predecessor in title and the agent of the plaintiff company shared the cost of erecting a fence across their boundary line. The plaintiffs then used a passageway from the defendant’s property to the highway, and, after a period of time, it stopped. The issue in that case was whether the mere nonuse of an easement was enough to extinguish it. Id., 145. The American Brass court held that it was not, and stated that “ ‘[i]n addition to the mere nonuser, there must be either acts on the part of the owner of the dominant tract, showing an intent to abandon permanently the use of the servient tract, or acts of the owner of the servient tract, showing an intent to obstruct the dominant owner’s enjoyment of the easement.’ ” (Emphasis added.) Id., 146. We are not persuaded by McClinch’s argument that intent as discussed in these cases is a factual, elemental intent, specific or otherwise, such as in the classical criminal context in which a specific intent is a necessary element of proving a particular crime. Hence, once the requirement of performing adverse acts for the prescribed period has been met, the “intent” to deprive the dominant owner of the use of the easement, as used in our cases, is necessarily implied from the servient owner’s “open, visible, continuous and uninterrupted” use for a period exceeding fifteen years. Kaiko v. Dolinger, 184 Conn. 509, 510, 440 A.2d 198 (1981); see also General Statutes § 47-37; Reynolds v. Soffer, 190 Conn. 184, 187, 459 A.2d 1027 (1983). It is not necessary that a claim of right be explicitly made when the adverse use is commenced. See Reynolds v. Soffer, supra, 188; see also Robert S. Weiss & Co. v. Mullins, supra, 619. Our conclusion in this case, based upon our reading of this Connecticut law, is consistent with the general law relating to the extinguishment of easements by prescriptive use. See 3 R. Powell, Real Property (1987) § 424, pp. 34-263 et seq.; 3 H. Tiffany, Real Property (3d Ed.) § 827, p. 396; E. Washburn, American Law of Easements and Servitudes (4th Ed. 1885) § 4, pp. 703-704.

Furthermore, in light of the requirements necessary to establish adverse possession, to decide otherwise in this case would lead to inconsistent judicial policy. In order to acquire title to the property of another by adverse possession, the essential elements that must be proven are that “ ‘the owner shall be ousted from possession and kept out uninterruptedly for fifteen years under a claim of right by an open, visible and exclusive possession of the claimant without license or consent of the owner.’ ” Roche v. Fairfield, 186 Conn. 490, 498, 442 A.2d 911 (1982); see also LaPre v. Nibo Films, Ltd., 10 Conn. App. 669, 671, 525 A.2d 140 (1987). “A mistaken belief by the adverse possessor that he owned the property when he entered into possession has been held to be immaterial in an action for title by adverse possession, as long as the other elements of adverse possession have been established.” Paletsky v. Paletsky, 3 Conn. App. 587, 588, 490 A.2d 545 (1985). Clearly, then, specific intent to deprive the true owner of his property is not required. It would be illogical to require more, that is, a showing of specific intent, for the extinguishment of an easement by the owner over his own property than that which is necessary to acquire title from another by adverse possession.

In the present case, the record clearly supports the trial court’s finding that the action in erecting a fence across the easement was sufficient to commence the running of the period for prescriptive use. “[TJhere is no presumption of permissive use to be overcome.” Reynolds v. Soffer, supra, 188. Since all the other conditions for acquisition of prescriptive rights were met, the plaintiff was entitled to judgment.

McClinch’s final claim, that the trial court applied the incorrect evidentiary standard to this case, must also fail. The trial court, relying on our case of Sanford v. Dimes, 3 Conn. App. 639, 640, 491 A.2d 398 (1985) (addressing establishment of an easement by adverse use), found that “the plaintiff met the burden of establishing its acquisition of prescriptive rights by adverse use of the defendant’s easement.” The defendant argues that the present case deals with the claim that a record easement has been extinguished, not established, as was the case in Sanford v. Dimes, supra, and, therefore, the burden of proof must be the same as where title by adverse possession is established, that is, by clear and positive proof. Id. We disagree.

In Sanford, we repeated the rule of Reynolds v. Soffer, supra, that “[a]n easement by adverse use need only be established by a preponderance of the evidence.” Sanford v. Dimes, supra. We find no logical reason to have different standards of proof for the establishment and extinguishing of easements by adverse use. In neither case is the acquisition of title to land at issue, a situation that logically calls for the higher “clear and positive proof” standard. See id.

The court was correct in applying the preponderance of the evidence standard to the plaintiff’s claim of extinguishment of the easement by prescriptive use. We find no error in the application of that standard of evidence.

There is no error.

In this opinion the other judges concurred.

       McClinch’s counterclaim, which alleged impairment of her use of the easement and which sought, inter alia, damages and a temporary restraining order, is not the subject of this appeal.

       In her brief, McClinch begins her argument as follows: “At the outset, the defendant concedes that the plaintiff has extinguished her rights in the subject easement to the extent that the plaintiffs building encroached upon the easement area so shown on the maps in evidence.”

       The trial court did not specifically declare that it was applying the same standard of proof used in determining the establishment of an easement by adverse use to this case addressing the extinction of an easement by adverse use. It is clear from the court’s memorandum of decision, however, that this was the standard applied, and logically so. We note that, with respect to this claim, the defendant did not move for articulation of the trial court’s memorandum of decision pursuant to Practice Book § 4051.

       “An easement is'a property right in a person or group of persons to use the land of another for a special purpose not inconsistent with the general property right in the owner of the land. ” (Emphasis added.) J. Cribbet, Property Law (1962), p. 16.


author: Daly, J.

text:
    State of Connecticut v. Ralph Vaughn
    (7890)
    Dupont, C. J., Daly and Lavery, Js.
    Argued October 17
    decision released December 19, 1989

      Peter J. Blessinger, special public defender, for the appellant (defendant).

      RitaM. Shair, deputy assistant state’s attorney, with whom were Michael Dearington, state’s attorney, and, on the brief, ElpedioN. Vitale, assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, after a jury trial, of the sale of heroin by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). The information alleged that the defendant was not a drug-dependent person at the time of the sale. The defendant claims that the trial court erred in permitting the state, after the defendant had rested and immediately prior to closing arguments, to file an amended information deleting the language that the sale was made by a person who was not drug-dependent. The defendant also claims that the prosecutor abused his discretion because the defendant was charged with a violation of General Statutes § 21a-278 (b). Finally, the defendant challenges the constitutionality of § 21a-278 (b). We find no error.

The following facts do not appear to be in dispute. On the afternoon of December 15,1987, Officers Frank Roberts, Robert Brooks and Edward Kendall of the New Haven street narcotics task force were working as undercover officers assigned to purchase narcotics from suspected drug dealers. The three officers operated as a team and, on that afternoon, were working on Sylvan Street and Elliott Street in a neighborhood known as the “Hill section” of New Haven. Kendall and Brooks were assigned as a surveillance backup team to protect Roberts, to observe the transaction, and to identify the seller. The three officers were dressed in plainclothes and operated rental vehicles.

That afternoon, at about 3:15 p.m., Roberts drove up Elliott Street toward a group of individuals. As he approached, the defendant, who was dressed in a red ski jacket with a large blue stripe and a grey hood protruding from the jacket, and blue jeans, approached the car and offered to sell heroin to Roberts. A $20 transaction was completed. After the purchase, Roberts met with the other officers, initialed and dated the packet and gave it to Kendall. Kendall had the packet field-tested, and the results of that test indicated that the substance was heroin.

After meeting with the officers, Roberts went to police headquarters, where he identified the defendant’s picture from a photo array. The defendant was subsequently arrested and charged with the sale of heroin by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). During the jury trial, the defendant rested without presenting evidence on the issue of drug dependency. As a result, immediately prior to closing arguments, the court stated that as a result of discussions in chambers concerning the issue of drug dependency it had requested the state to file an amended information that deleted the reference to a person who is not drug-dependent, but to keep the charge as sale of heroin in violation of General Statutes § 21a-278 (b). See Practice Book § 624. The trial judge then granted the state’s request over the defendant’s objection. The defendant was convicted and sentenced to ten years in prison. This, appeal ensued.

I

The defendant’s first claim is that the trial court erred in granting the state’s request to amend the information after the defendant had rested and immediately prior to closing arguments.

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.” See State v. Anderson, 211 Conn. 18, 31, 557 A.2d 917 (1989).

Section 624 prevents the defendant from being charged with additional or different offenses. See id. “The state’s right to amend must be limited to substitutions that do not charge the defendant with an additional or different offense because the defendant has a constitutional right to fair notice, prior to the commencement of trial, of the charges against which he must defend himself.” State v. Jacobowitz, 182 Conn. 585, 590, 438 A.2d 792 (1981). “After trial has commenced ... ‘an amendment is permissible only to charge a lesser included offense.’ ” State v. Cole, 8 Conn. App. 545, 552, 513 A.2d 752 (1986), quoting State v. Jacobowitz, supra.

In the present case, the original and amended information charged the defendant with the same crime, namely, sale of heroin in violation of General Statutes § 21a-278 (b). The amendment to the information that deleted any reference to the defendant’s not being a drug-dependent person did not change the offense, and thus, did not deprive the defendant of his right to fair notice of the charge. See, e.g., State v. Wallace, 181 Conn. 237, 435 A.2d 20 (1980).

Section 624 also provides that the defendant’s substantive rights must not be prejudiced by any amendment. See State v. Anderson, supra. In the present case, the defendant argues that he was denied due process of law because he was denied the opportunity to argue to the jury in his closing argument that the state did not prove that the defendant was not a drug-dependent person.

The state does not carry the burden of proving that the defendant is not a drug-dependent person unless the defendant has raised the issue of drug dependency and met his burden of producing substantial evidence on this issue. See State v. Januszewski, 182 Conn. 142, 169, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981).

In the present case, the record indicates that the defendant did not offer any evidence of drug dependency, and thus the state did not have the burden of proving beyond a reasonable doubt that the defendant was not drug-dependent. For this reason, the defendant’s claim that his substantive right of due process was prejudiced is without merit.

Because the defendant had adequate notice of the charge against him and the amendment did not prejudice his substantive rights, we conclude that the trial court did not err in granting the state permission to file an amended information after the defendant had rested and immediately prior to closing arguments.

II

The defendant’s second claim is that the prosecutor abused his discretion when he charged the defendant with a violation of § 21a-278 (b). The defendant advances several reasons for this claim, none of which has merit.

At the outset, it should be noted that this court may review only those issues that are properly raised and ruled on by the trial court. See State v. Riggs, 7 Conn. App. 180, 184, 508 A.2d 67, cert. denied, 200 Conn. 804, 510 A.2d 191, cert. denied, 479 U.S. 852, 107 S. Ct. 183, 93 L. Ed. 2d 118 (1986). “In general, a claim of an abuse of prosecutorial discretion should be made by a motion to dismiss based upon the ‘insufficiency of evidence or cause to justify the bringing or continuing of such information or indictment or the placing of the defendant on trial . . . .’ Practice Book § 815 (5); see Spinella, Connecticut Criminal Procedure, pp. 604-605.” State v. Riggs, supra.

In the present case, the defendant never made a formal objection to the charge of sale of narcotics by a person who is not drug-dependent. “Nevertheless, because the defendant’s claim raises an issue of his constitutional right to due process, we shall review his claim to the extent that it is clearly established in the record.” Id.

The defendant first contends that the prosecutor abused his discretion in charging the defendant with a violation of General Statutes § 21a-278 (b), sale of narcotics by a person who is not drug-dependent, just to obtain a harsher sentence, when he could have charged him with a violation of General Statutes § 21a-277 (b), sale of narcotics.

“The state has ‘considerable latitude as to how and in what manner it shall proceed against an accused.’ . . . The discretionary power of the state to select an appropriate charge is, of course, ‘limited in the usual and lawful manner by the facts the prosecutor may be reasonably expected to prove at trial.’. . .” (Citations omitted.)State v. O’Neill, 200 Conn. 268, 280, 511 A.2d 321 (1986).

“ ‘A defendant has no constitutional right to elect which of two applicable statutes shall be the basis of his indictment and prosecution.’ ” Id., 280-81, quoting Hutchinson v. United States, 345 F.2d 964, 967 (D.C. Cir.), cert. denied, 382 U.S. 894, 86 S. Ct. 188, 15 L. Ed. 2d 151 (1965); see also State v. Rodo, 14 Conn. App. 322, 330, 541 A.2d 124, cert. denied, 208 Conn. 813, 546 A.2d 282, cert. denied, 488 U.S. 927, 109 S. Ct. 311, 102 L. Ed. 2d 330 (1988) (prosecutor did not abuse his discretion when he charged the defendant with a violation of General Statutes § 53a-148 (a), a class D felony, instead of charging him with a violation of General Statutes § 53a-161 (b), a class A misdemeanor). The prosecutor in the present case did not abuse his discretion in choosing to proceed under a statute that imposed a greater punishment.

The defendant’s next objection is that the prosecutor abused his discretion by charging a violation of § 21a-278 (b) because he lacked a good faith basis to believe that the defendant was not a drug-dependent person. This objection is also without merit. As our Supreme Court in State v. Januszewski, supra, 167, pointed out, “[a] defendant’s drug dependency at the specific point of time in the past at which the offense occurred is certainly a matter personal to the defendant and peculiarly within his own knowledge.” It is the defendant, and not the prosecutor, who bears the initial burden of proof on this issue. The prosecutor may otherwise presume that the defendant is not drug-dependent and, therefore, should be prosecuted under § 21a-278 (b). Because the defendant’s drug dependency is regarded as a matter peculiarly within his knowledge, unless the defendant presents evidence to the contrary, it is difficult to understand how a prosecutor would act in bad faith if he charges under § 21a-278 (b). The defendant in this case failed to present such evidence.

Finally, the defendant claims that the prosecutor abused his discretion by charging him with a violation of § 2 la-278 (b) when the prosecutor had reason to believe that the defendant would not raise the issue of drug dependency at trial because the defendant could not himself testify due to his long criminal record, and because the one month delay between the alleged sale and the defendant’s arrest made it difficult for the defendant to obtain medical evidence. This claim is also without merit.

The defendant’s choice not to testify at trial was a matter solely of his own choice. The prosecutor cannot know whether the defendant will exercise his right not to testify. Further, the defendant could have presented evidence to the jury that he was drug-dependent through other witnesses and evidence. The one month delay between the alleged sale and the defendant’s arrest did not prevent the defendant from bringing forth evidence that he was a drug-dependent person at the time of the sale. The prosecutor did not abuse his discretion by charging the defendant with a violation of § 21a-278 (b).

Ill

The defendant’s third claim is that § 21a-278 (b) creates an unconstitutional presumption that most people are not drug-dependent persons and violates his fifth amendment privilege against self-incrimination.

The defendant in State v. Januszewski, supra, unsuccessfully raised these identical two issues in his habeas action. See Januszewski v. Manson, 525 F. Sup. 805, 811-12 (D. Conn. 1981). We are bound by the precedent outlined in Januszewski v. Manson, supra, and will not further entertain this claim.

There is no error.

In this opinion the other judges concurred.

       The defendant used the word “power” when he offered to sell the narcotic. Testimony revealed that this word is the street name for heroin.

       The state must also show good cause. In the present case, the state argued that it was required only to prove the essential elements of the crime as set out in § 21a-278 (b) and that, because the issue of drug dependency was not raised by the defendant, the state did not have to prove the defendant was not a drug-dependent person. The state also argued that the inclusion of the reference to his not being a drug-dependent person, especially in the jury charge, would confuse the jury. The defendant, on appeal, does not contend that the state failed to show good cause.

       The defendant in Januszewski v. Manson, 525 F. Sup. 805, 811-12 (D. Conn. 1981), relying on Tot v. United States, 319 U.S. 463, 63 S. Ct. 1241, 87 L. Ed. 1519 (1943) and Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969), (1) contended that General Statutes (Rev. to 1981) §§ 19-480a (b) (now § 21a-278 [b]) and 19-474 (now § 21a-269) impermissibly utilize a presumption that most men are not dependent on drugs, and (2) contended that General Statutes (Rev. to 1981) § 19-480a (b) (now § 21a-278 [b]) forces the defendant to waive his privilege against self-incrimination.
      In rejecting the first claim, the court stated that these sections “merely allocate the burden of production on an affirmative defense. They do not create a presumption requiring an inference of one fact from proof of another. Even accepting for the sake of argument the suggestion that these statements create a presumption of non-drug-dependency, such a presumption would be upheld under the ‘more-likely-than-not’ standard of Leary v. United States.” Januszewski v. Manson, supra, 811.
      As to the second claim, the court stated, “[rjequiring a defendant to produce evidence is not equivalent to requiring him to testify. Other evidence of drug dependence could be presented in lieu of his own testimony.” Id., 812.