author: Heiman, J.

text:
    Robert K. Lippmann et al. v. Evan Rashkoff
    (11799)
    Lavery, Landau and Heiman, Js.
    Argued June 7
    decision released July 27, 1993

      David A. Moraghan, with whom, on the brief, was Lawrence M. Peck, Jr., for the appellants (plaintiffs).

      Beth A. Barrett, with whom, on the brief, was Thomas A. Kaelin, for the appellee (defendant).
   Heiman, J.

The plaintiffs appeal from the judgment of the trial court granting the defendant’s motion to dismiss. On appeal, the plaintiffs assert that the trial court improperly (l)held that General Statutes § 52-592, the accidental failure of suit statute, did not apply to actions originally commenced in a foreign jurisdiction, (2) interpreted that statute restrictively, (3) deprived them of their state constitutional right afforded to them by article first, § 10, of the Connecticut constitution, and (4) violated rights afforded to them by the fourteenth amendment to the United States constitution and article first, § 20, of the Connecticut constitution. We affirm the trial court’s judgment.

The following facts are necessary to a resolution of this appeal. In September, 1991, the plaintiffs brought a negligence action in the United States District Court for the southern district of New York. They alleged that the named plaintiff suffered injuries as a result of the defendant’s negligent treatment in October and November, 1989. On January 2,1992, the federal court dismissed the action for lack of personal jurisdiction over the defendant.

By writ and complaint, returnable on August 11, 1992, the plaintiffs brought their negligence action in the Superior Court for the judicial district of Litchfield. In their complaint, the plaintiffs alleged that their action was brought pursuant to General Statutes § 52-592, the accidental failure of suit statute. The defendant filed a motion to dismiss the action claiming that § 52-592 does not apply to the plaintiffs’ lawsuit because the action was first filed in the federal court in New York and not in a Connecticut state or federal court. As a result, the defendant claimed that the plaintiffs’ malpractice claims were barred by the two year statute of limitations set forth in General Statutes § 52-584. The plaintiffs filed a memorandum in opposition asserting that § 52-592 applied to their actions.

General Statutes § 52-592 (d) provides in relevant part that the accidental failure of suit provisions shall pertain to “any action between the same parties or the legal representatives of either of them for the same cause of action or subject of action brought to any court in this state, either before dismissal of the original action and its affirmance or within one year after the dismissal and affirmance, and to any action brought to the United States circuit or district court for the district of Connecticut which has been dismissed without trial upon its merits or because of lack of jurisdiction in such court. If such action is within the jurisdiction of any state court, the time for bringing the action to the state court shall commence from the date of dismissal in the United States court, or, if an appeal or writ of error has been taken from the dismissal, from the final determination of the appeal or writ of error.” (Emphasis added.) The applicability of General Statutes § 52-592, construed according to its plain and ordinary meaning, hinges on the parties bringing the action initially within a state or federal court in this state. General Statutes § 52-592; see also Gilbert v. Selleck, 93 Conn. 412, 417, 106 A. 439 (1919) (discussing amendment to precursor to § 52-592 in which legislature extended coverage of the accidental failure of suit statute to actions brought in federal court in Connecticut). The plaintiffs failed to file their original action in either a state court in Connecticut or a federal court in Connecticut. They chose to bring their action in the southern district of New York and thus failed to meet the standards for the application of General Statutes § 52-592. General Statutes § 52-592 (d) does not save the plaintiffs’ action from the running of the statute of limitations. The trial court properly granted the defendant’s motion to dismiss.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs are the named plaintiff and Ms father.

       General Statutes § 52-584 provides in pertinent part: “No action to recover damages for injury to the person . . . caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . . .”

       The plaintiffs did not raise in their memorandum of law in support of their opposition to the defendant’s motion to dismiss or during oral argument before the trial court that failure to apply General Statutes § 52-592 would deprive them of their state and federal constitutional rights. Practice Book § 4185 provides that the Appellate Court “shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial.” The plaintiffs’ failure to raise these issues with the trial court deprived it of the opportunity to consider these issues. We are not obligated to review any claims that were not properly raised and preserved before the trial court. Calfee v. Usman, 224 Conn. 29, 32-33 n.3, 616 A.2d 250 (1992); Board of Education v. Local 1282, 31 Conn. App. 629, 633, 626 A.2d 1314 (1993). Moreover, the plaintiffs failed to brief adequately and to provide us with an analysis of their state constitutional claims and we choose not to consider these claims. State v. Joyner, 225 Conn. 450, 458-59 n.4, 625 A.2d 791 (1993); State v. Hernandez, 28 Conn. App. 126, 131 n.2, 612 A.2d 88, cert. denied, 223 Conn. 920, 614 A.2d 828 (1992).


source: Caselaw Access Project

author: Landau, J.

license: Public Domain

text:
    Keith Saad v. Colonial Penn Insurance Company
    (11231)
    Poti, Landau and Schaller, Js.
    Argued March 31
    decision released July 27, 1993

      Daniel P. Scapellati, with whom, on the brief, were John W. Lemega and Elizabeth A. Curtis, for the appellant (defendant).

      Michael E. Wolf, for the appellee (plaintiff).
   Landau, J.

This is an appeal by the defendant, Colonial Penn Insurance Company (Colonial), from the granting by the trial court of a motion to compel arbitration and an order prohibiting discovery proceedings. The sole issue is whether, in light of the plaintiffs agreement to submit to the examination under oath, this appeal is now moot. We hold that it is moot.

After sustaining injuries in an automobile accident on June 3, 1989, the plaintiff, Keith Saad, submitted a claim for underinsured motorist benefits under a policy of insurance issued by Colonial. Colonial submitted interrogatories to Saad on July 26, 1991, and, on January 9,1992, notified Saad of its intention to examine him under oath. At that time, Saad informed Colonial that he was willing to provide to Colonial a signed statement under oath but refused to be questioned under oath in the presence of a court reporter. This action triggered the filing of an application pursuant to General Statutes § 52-410 to compel arbitration.

Colonial filed an amended answer and in its special defenses asserted that as a result of the plaintiffs refusal to submit to an examination under oath in accordance with the provisions of the policy, the plaintiff was in breach of the policy terms and conditions for applicable coverage for the loss. Colonial further alleged that the refusal to comply with the examination under oath constituted a refusal to proceed with arbitration in accordance with the policy and as provided in General Statutes § 52-410. Following a hearing, the trial court precluded Colonial from taking depositions, citing Thompson v. TJSAA Casualty Ins. Co., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 27-81-59 (January 17, 1991). This appeal ensued.

After appeal briefs were filed by both parties, Saad indicated to Colonial, by telephone and in writing, that he “will submit to the taking of a statement under oath as allegedly required by his policy.” The plaintiff filed a motion to dismiss the appeal, which was granted by this court on December 3,1992. Colonial indicated that it “had no intention of taking [the plaintiff’s] examination under oath” and further contended that this appeal was not moot because “[u]nless and until the Appellate Court reverses [the trial court’s] decision, we maintain that we cannot proceed to an arbitration and argue that as a result of [the plaintiff’s] breach of the proof of claim provisions contained in the Colonial Penn policy he has forfeited his coverage.” Colonial then filed a motion for reconsideration of our dismissal of appeal. This court granted that motion and, on February 3, 1993, vacated our prior order dismissing the appeal.

“The existence of an actual controversy is an essential jurisdictional prerequisite. . . . It is not the province of our courts to decide moot questions, the determination of which cannot result in the granting of actual or practical relief. ... In the absence of an actual and existing controversy for us to adjudicate in any sense of the term, the courts of this state may not be used as a vehicle to obtain judicial opinions on points of law.” (Citations omitted.) Fromer v. Tree Warden, 26 Conn. App. 599, 600, 602 A.2d 1060 (1992).

In light of the respondent’s continuing offer to submit to an examination and because nothing in the trial court’s decision can be interpreted to affect the issue of coverage to be decided in the upcoming arbitration proceeding, there is no actual controversy.

The appeal is dismissed.

In this opinion the other judges concurred.

       General Statutes § 52-410 (a) provides: “A party to a written agreement for arbitration claiming the neglect or refusal of another to proceed with an arbitration thereunder may make application to the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, to any judge thereof, for an order directing the parties to proceed with the arbitration in compliance with their agreement. The application shall be by writ of summons and complaint, served in the manner provided by law.”

         At oral argument, the plaintiff again offered to make himself available under oath. We express no opinion as to whether this is a condition precedent to coverage under this policy. “[General Statutes § 38a-336 (c)] clearly mandates not only the inclusion of a provision for uninsured motorist coverage in automobile liability insurance policies, but that coverage under such provisions be determined through arbitration when the policy provides that the parties will arbitrate. Oliva v. Aetna Casualty & Surety Co., 181 Conn. 37, 41, 434 A.2d 304 (1980). The expressed intent and effect of the aforementioned provision of [§ 38a-336 (c)] is to remove from the court and to transfer to the arbitration panel the function of determining, in the first instance, all issues as to coverage under automobile liability insurance policies containing uninsured motorist clauses providing for arbitration. Id., 42.” (Internal quotation marks omitted.) Mocarski v. United Services Automobile Assn., 3 Conn. App. 250, 254, 487 A.2d 206 (1985).


text:
    State of Connecticut v. Isidro Rivera
    (10974)
    Laveky, Landau and Heiman, Js.

      Argued June 7
    decision released July 27, 1993

      Auden Grogins, special public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and C. Robert Satti, Jr., assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree, in violation of General Statutes § 53a-134 (a) (3). The trial court rendered an oral judgment of acquittal to an additional charge of assault in the second degree. On appeal, the defendant asserts that the state produced insufficient evidence for the jury to find him guilty of robbery in the first degree and that the trial court was thus obligated to render a judgment of acquittal with respect to that charge. In particular, the defendant posits that the evidence was fatally deficient in identifying him as a participant in the robbery. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On November 22,1990, at about 12:42 a.m., Officer Michael Gosha, a member of the Bridgeport police department, was on patrol on the west side of Bridgeport when he was dispatched to the area of building sixteen in the P.T. Barnum housing project. Upon arrival, he observed a taxicab in the parking lot behind building sixteen, parked approximately 100 feet from Taylor Drive. Upon investigation, Gosha found Roberto Mejias seated in the cab, with his legs outside the vehicle. Mejias appeared to be shaken and his right index finger was bleeding.

Mejias told Gosha that he had been robbed by two individuals. After the victim left by ambulance, Gosha drove around the area looking for the individuals described to him by Mejias, but was unsuccessful.

The parking lot was not lighted that night, but there was light from street lights on Taylor Drive. The lights fixed to the buildings in the area were not working, and, although the area was lighted to some extent from the lights on Taylor Drive, the lighting in the parking lot was poor.

On November 24,1990, two days after the robbery, Officer Daniel Garcia of the Bridgeport police department was dispatched at approximately 3:45 a.m. to transport Mejias. Garcia met Mejias at the cab company office on Main Street in Bridgeport. They went to building sixteen, apartment 102, at the Barnum complex on the basis of Mejias’ statement that he had information that the persons who had perpetrated the robbery on him were at that apartment.

Garcia entered the building and went to apartment 102. He found a husky Hispanic male with a cast on his leg and walking with crutches, who matched the description that had been given to Garcia of one of the persons involved in the robbery. Garcia took that individual, Edwin Lopez, into custody and brought him to the police cruiser, where Mejias identified him as one of the perpetrators of the robbery. Garcia called for additional police assistance and Officer Ruby Crear arrived. Garcia placed Lopez in his police cruiser to take him to police headquarters for booking. Mejias entered the police vehicle operated by Crear. Both vehicles then left the area. The vehicle operated by Garcia was about twenty feet in front of the vehicle operated by Crear.

At about 5 a.m., the two vehicles proceeded to St. Stephens Street and then to Albion Street in the vicinity of the Evergreen Apartments. Garcia observed three males walking in the area of the Evergreen Apartments. He observed that two of the men were African-American and the third was Hispanic. The area was sufficiently illuminated for a person to see a short distance ahead. Daylight was beginning to appear and the street lights as well as the headlights of Garcia’s vehicle lighted the area.

Garcia received a radio transmission from Crear’s vehicle indicating that the victim said the Hispanic male looked like the second perpetrator. Garcia stopped his vehicle, exited it and walked toward the three males. The three entered the grounds of the Evergreen Apartments. Garcia called out “Tito,” a name that he had heard at the Barnum project. The three continued to walk until Garcia again called out “Tito” and pointed his flashlight at them. This time, the Hispanic male turned around. The individual fit the description given by Mejias of a Hispanic male, shorter than Lopez, with a “fade” haircut.

Garcia brought the Hispanic male, the defendant, back to the vicinity of the police vehicle in which Mejias was a passenger. The take down lights of the police vehicle were lighted. Garcia brought the defendant to a point about seven feet in front of the police vehicle in which Mejias was seated. Mejias positively identified the defendant as the second individual involved in the robbery of November 22,1990. As soon as Mejias positively identified the defendant, Garcia arrested and charged him with the commission of the offenses.

The only evidentiary issue that the defendant raises with respect to this conviction is that the evidence produced was grossly insufficient to prove his guilt of the offense of robbery in the first degree beyond a reasonable doubt. He posits that the attempted in-court identification by the victim was of such a nature that, as a matter of law, the jury could not reasonably conclude that the state had established beyond a reasonable doubt the identification of the defendant as one of the participants in the robbery of Mejias. We disagree and conclude that the evidence was sufficient to support the jury finding.

Certain additional facts are necessary for a proper resolution of this issue. At trial, the state called the victim as a witness. The victim could not speak fluent English and required the services of a court interpreter. At times during his testimony, the victim answered questions without waiting for the services of the interpreter.

The victim testified that in the early morning hours at the end of November, 1990, he had been dispatched to 752 East Main Street to pick up a fare. When he arrived at that address, two Hispanic males and a Hispanic female entered his cab. They directed him to take them to the Barnum project, to the area of the parking lot behind building sixteen. The victim testified that one of the men, Edwin Lopez, used crutches. He testified further that Lopez displayed a knife. Subsequently, Lopez placed the knife near the victim’s throat. He also testified that money was removed from his pocket by the other Hispanic male. In stating that the other person had removed the money from his pocket, the victim referred to that other person as Isidro Rivera. The victim also testified that when he attempted to push the knife away from his neck, his finger was cut.

The state’s attorney then asked the victim to look around the courtroom to see if he saw the person who took the money. The victim responded negatively. Later in the direct examination, the victim testified that he had identified the defendant as one of the perpetrators when the defendant was brought near the cab at the time of the arrest. The victim further testified that he had an opportunity on the evening of the robbery to observe the faces of the perpetrators for about five minutes by the lights in the cab and by the cab’s headlights as the perpetrators walked away.

The state’s attorney then asked the victim if he saw the individual in the courtroom that he had seen outside of the police vehicle on the night of November 24, 1990. He responded affirmatively and identified the defendant as that person.

Our review of the evidence reveals that Mejias was robbed at knifepoint by the combined activities of two Hispanic males, one having a leg cast and walking with crutches and the second, shorter than the first, with a fade haircut. He observed these two men in his cab, together with a woman passenger, for about five minutes with the interior lights on. He also observed the two individuals in the headlights of the cab as they left after the robbery. The evidence also reveals that on November 24, 1990, two days after the robbery, the victim called the police because he had information that the perpetrators could be found in apartment 102, building sixteen, of the Barnum project. The evidence also establishes that on that night, the police apprehended the alleged accomplice, Lopez, at that apartment and the victim identified him as one of the two Hispanic males that participated in the robbery. The evidence reveals that, shortly thereafter, the victim saw the defendant walking on the street with two black males, informed the police that the defendant looked like the second Hispanic male involved in the robbery, and, when he observed the defendant about seven feet away from the police vehicle in which he was a passenger, positively identified the defendant as the second participant in the robbery two nights before. The evidence also reflects that the defendant was the individual that removed the money from the victim’s pocket. As we have previously stated, while the victim did not, by an in-court identification, identify the defendant as one of the perpetrators, he did, in fact, identify the defendant as the person he had identified as the perpetrator outside the Evergreen Apartments two nights after the robbery.

When reviewing sufficiency of the evidence claims, we impose a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993); State v. Hooks, 30 Conn. App. 232, 238, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993); State v. Young, 29 Conn. App. 754, 767, 618 A.2d 615 (1992) , cert. denied, 225 Conn. 904, 621 A.2d 287 (1993) . Second, we “ ‘determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt.’ ” State v. Hooks, supra; State v. Salz, supra. “ ‘In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.’ ” State v. Salz, supra; State v. Somerville, 214 Conn. 378, 390, 572 A.2d 944 (1990); State v. Hooks, supra, 238-39; State v. Maxwell, 29 Conn. App. 704, 708, 618 A.2d 43, cert. denied, 225 Conn. 904, 621 A.2d 287 (1993). Where, as here, the identification of the defendant is derived from circumstantial evidence, it is, nonetheless, the cumulative impact of a multitude of factors that must be examined to determine whether the identification of the defendant has been satisfactorily established by circumstantial evidence. State v. Salz, supra, 38; State v. Henning, 220 Conn. 417, 421, 599 A.2d 1065 (1991); State v. Pearl, 28 Conn. App. 521, 526, 613 A.2d 304 (1992). “In criminal cases, including the most serious ones, the fact that an accused was the person who committed the criminal act may be proved by circumstantial evidence.” 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 64b; see Bradbury v. South Norwalk, 80 Conn. 298, 301, 68 A. 321 (1907).

The jury’s sole province as the trier of fact is to draw all reasonable and logical inferences from the facts as it finds them to exist. State v. Gray, 221 Conn. 713, 721, 607 A.2d 391, cert. denied, U.S. , 113 S. Ct. 207, 121 L. Ed. 2d 148 (1992); State v. Hooks, supra, 239. The jury also has the sole and absolute responsibility to weigh conflicting evidence and to determine the credibility of the witnesses. State v. Pinnock, 220 Conn. 765, 778-79, 601 A.2d 521 (1992); State v. Hooks, supra. The issue of the identification of the accused as the perpetrator of the crime is peculiarly one of fact to be resolved by the jury. State v. Smith, 138 Conn. 196, 201, 82 A.2d 816 (1951). “If evidence, whether direct or circumstantial, should convince a jury beyond a reasonable doubt that an accused is guilty, that is all that is required for a conviction.” Id., 200.

The test for determining whether the evidence is sufficient to sustain a verdict is thus “whether the [trier of fact] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt. . . .” (Internal quotation marks omitted.) State v. Haddad, 189 Conn. 383, 387, 456 A.2d 316 (1983); State v. Salz, supra, 30; State v. Hooks, supra.

As we have stated, the issue of whether the defendant perpetrated the crime was properly a question of fact to be resolved by the jury. State v. Smith, supra. The jury had the opportunity to have before it the unequivocal and certain identification of the defendant by the victim made two days after the incident. It had his negative answer to the question propounded by the state’s attorney as to whether he saw in the courtroom the man who had taken his money. Thus, the jury was in a unique position to determine whether his memory was better two days after the incident than at trial and whether it believed his earlier identification of the defendant as the second person involved. The jury also had before it the fact that the victim was not fluent in English, had a seventh grade education, and often attempted to answer questions before the interpreter had an opportunity to translate the question.

The jury was within its right to draw an inference that the defendant had in fact been the perpetrator of the crime on the basis of the victim’s prior out-of-court identification of the defendant. The function of the jury is to weigh the impact of the negative answer against the prior unequivocal and certain identification of the defendant shortly after the incident. In this context, we rely on “the good sense and judgment of American juries to weigh evidence with some element of untrustworthiness since such evidence ‘is customary grist for the jury mill.’ ” State v. Fullwood, 193 Conn. 238, 254, 476 A.2d 550 (1984).

The defendant’s claim that the evidence was insufficient to identify him as a participant in the crime is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 provides in pertinent part: “(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument . . . .”
      General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       Take down lights are the lights on a police vehicle located on the top portion of the strobe lights that have as their purpose the illumination of the area to the front of the vehicle.

       We note that no claim was made that the victim’s out-of-court identification of the defendant was unnecessarily suggestive or otherwise violative of the defendant’s rights. See Neil v. Biggers, 409 U.S. 188, 193, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); State v. Plaza, 23 Conn. App. 543, 583 A.2d 925 (1990), cert. denied, 217 Conn. 811, 587 A.2d 153 (1991). Nor did the defendant raise on appeal any claim that the trial court acted improperly in permitting the police officers to testily as to the victim’s statements concerning his identification of the defendant at the Evergreen Apartments two nights after the robbery. See State v. Outlaw, 216 Conn. 492, 497, 582 A.2d 751 (1990); State v. Townsend, 206 Conn. 621, 624, 539 A.2d 114 (1988); State v. Rose, 29 Conn. App. 421, 424, 615 A.2d 1058, cert. denied, 224 Conn. 923,618 A.2d 529 (1992). Thus, no attack is made against the propriety of the out-of-court identification by the defendant, nor against his own testimony with respect to that identification, or against the officers’ being permitted to testify as to the identification of the defendant by the victim.

       The transcript reveals the following question and answer:
      “[State’s Attorney]: Mr. Mejias, would you look around this court and see if you see the other man that took the money in the courtroom today?
      “[Mejias responding in English]: Nope.”

       The transcript reveals the following question and answer:
      “[State’s Attorney]: Did you say anything to the police after you saw the
      person? Can you answer my question?
      “[Witness]: When they took the guy, they brought him close to the car and they asked me if he was the guy. And I said yes.”

       The transcript reveals the following questions and answers relating to the identification process:
      “[State's Attorney]: Mr. Mejias, would you stand up, please. Ask you if you would look around the courtroom and see if you see anybody that you recognize was the individual that the police had outside that automobile on the night of November 24, 1990.
      * * *
      “[State’s Attorney]: Can you answer my question?
      “[Witness]: Could you repeat it.
      “[State’s Attorney]: Look around the courtroom. See if you see the person that was outside of the car in the vicinity of the Evergreen Apartments.
      “[Witness responding in English]: Yeah.
      “[State’s Attorney]: We got an answer. I didn’t hear it.
      “[Witness]: Yes.”
      The transcript further reveals that the witness identified the defendant as that person.


author: Per Curiam.

text:
    Keary Mulligan v. Allen S. Hall et al.
    (11150)
    Daly, Landau and Heiman, Js.
    Argued June 10
    decision released July 27, 1993

      Kerry M. Wisser, with whom, on the brief, were James M. S. Ullman and Jennifer C. Jaff for the appellant (plaintiff).

      Michael L. Tierney, with whom, on the brief, was Thomas H. Cotter, for the appellee (intervening plaintiff Chemsearch, Inc.).
   Per Curiam.

The plaintiff appeals from a stipulated judgment awarding him damages in a personal injury action. On appeal, the plaintiff asserts that the trial court improperly (1) allowed the workers’ compensation carrier to intervene and (2) forced the plaintiff to trial. We are unable to review this matter because the plaintiff cannot appeal from the stipulated judgment.

“A stipulated judgment allows the parties to avoid litigation by entering into an agreement that will settle their differences once the court renders judgment on the basis of the agreement.” Housing Authority v. Lamothe, 27 Conn. App. 755, 759, 610 A.2d 695 (1992), rev’d on other grounds, 225 Conn. 757, 627 A.2d 367 (1993); Bryan v. Reynolds, 143 Conn. 456, 460, 123 A.2d 192 (1956). The stipulated judgment is a contract between the parties “ ‘acknowledged in open court and ordered to be recorded by a court of competent jurisdiction.’ ” Housing Authority v. Lamothe, supra; Gillis v. Gillis, 214 Conn. 336, 339, 572 A.2d 323 (1990). The judgment is as binding as if it had been obtained after a trial. Housing Authority v. Lamothe, supra. It cannot be altered or set aside without the consent of all of the parties, “ ‘unless it is shown that the stipulation was obtained by fraud, accident or mistake.’ ” Gillis v. Gillis, supra, 340; Housing Authority v. Lamothe, supra.

The procedure for opening or setting aside a judgment is governed by General Statutes § 52-212a and Practice Book § 326. If a party seeks to open or set aside a judgment, it must do so by a motion to the trial court. William G. Major Construction Co. v. DeMichely, 166 Conn. 368, 375, 349 A.2d 827 (1974). A party’s failure to file a motion to open or set aside the stipulated judgment in the trial court precludes this court from reviewing the stipulated judgment. Id.

Here, the plaintiff is attempting to appeal from a stipulated judgment. There is no showing in the record of the filing of a motion to open or set aside the judgment of the trial court. If the plaintiff had moved the trial court to open or set aside the judgment, he “could have taken an appeal had he believed that the court erred in its ruling.” Id. Since the judgment was not properly challenged in the trial court, this court is unable to afford review of this matter.

The appeal is dismissed.

       Other defendants named in the complaint are J.A.C.E. Transportation Company, Inc., and Housatonic Area Regional Transit. Chemsearch, Inc., is an intervening plaintiff to the action. The appeal involving all the defendants was withdrawn on October 16, 1992. The appeal between the plaintiff and the intervening plaintiff is presently before this court.

       General Statutes § 52-212a provides: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. The parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court.”

       Practice Book § 326 provides in pertinent part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed. The parties may waive the provisions of this paragraph or otherwise submit to the jurisdiction of the court. . . .”


author: Freedman, J.

text:
    Charles Nardi et al. v. AA Electronic Security Engineering, Inc., et al.
    (11612)
    IIeiman, Freedman and Schaller, Js.

      Argued May 10
    decision released July 27, 1993

      Dennis C. LaGanza, for the appellants (plaintiffs).

      Lorinda S. Coon, with whom were Jeffrey C. Ping-pank and, on the brief, Louis B. Blumenfeld, for the appellee (defendant Southern New England Telephone Company).
   Freedman, J.

This action involves claims of negligence and breach of contract by the defendants with respect to the installation and maintenance of a residential burglar alarm system. The plaintiffs, Charles Nardi and Joan Nardi, appeal from the decision of the trial court granting summary judgment in favor of the defendant Southern New England Telephone Company (SNET) on the third count of their amended complaint. The trial court determined (1) that the plaintiffs’ claim against SNET, alleging the negligent installation of the automatic dialer jack for the alarm system, was barred by the statute of limitations, and (2) that SNET breached no duty to the plaintiffs with respect to its disconnection of the phone line that supported the automatic dialer feature of the alarm system. We affirm the judgment of the trial court.

The affidavits and other materials submitted by the parties accompanying and opposing the motion for summary judgment, taken in the light most favorable to the plaintiffs, reveal the following pertinent facts. The plaintiffs were the owners of a residence located at 75 Sunset Ridge Drive in East Hartford. In 1981, the plaintiffs hired the defendant A A Electronic Security Engineering, Inc. (AA), to provide a burglar alarm system at their residence. The system was designed to sound an audible alarm at the premises and automatically to notify AA by telephone in the event of an unauthorized entry into the house.

To complete the connection of the plaintiffs’ alarm system to their telephone line, defendant SNET provided and installed an RJ31X jack. In 1981, SNET was the only entity permitted to install the jack to its own equipment. The RJ31X jack acted as an interfacing device between the alarm system and the telephone line. At all times relevant to this case, the only recognized use for an RJ31X jack was as an automatic dialer.

In 1981, at the time of the installation, the plaintiffs had two telephone lines, the main number and the children’s number. The automatic dialer was to be connected to the plaintiffs’ main telephone line. SNET billed the plaintiffs for connection to the main line.

Contrary to the plaintiffs’ instructions, however, SNET connected the jack to the children’s line instead of to the main line. The plaintiffs were not informed of this misconnection, and SNET records show, incorrectly, that the jack was connected to the main line.

On January 1,1987, as part of deregulation, SNET relinquished all claims of ownership to inside wires, including the RJ31X jack. In June, 1989, the plaintiffs’ son contacted SNET to request the disconnection of service to the children’s line. In July, 1989, SNET disconnected the children’s line as requested. Compliance with the request did not require SNET to enter the plaintiffs’ house. The plaintiffs did not know that their alarm system was connected to the children’s line.

On September 15,1989, the plaintiffs’ house was burglarized. The unauthorized entry activated the audible component of the alarm system. No telephone transmission was received by AA because the automatic dialer was connected to the disconnected children’s line. As a result, AA did not notify the East Hartford police of the break-in.

The plaintiffs claim to have lost cash, jewelry and other valuables as a result of the 1989 burglary of their house. Subsequently, the plaintiffs learned of the mis-connection of the RJ31X jack. In 1990, the plaintiffs brought this action alleging, inter alia, injury as a result of SNET’s negligent installation and negligent disconnection of the jack.

The trial court rendered summary judgment for SNET, concluding that “the claim for installing the jack to the ‘wrong telephone line’ is barred by the statute of limitations” and that SNET “had no duty to the plaintiffs [with respect to the disconnection] other than to disconnect the telephone number and service at the plaintiffs’ request.”

“ ‘The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Pursuant to Practice Book § 384, summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact’; (internal quotation marks omitted) Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); ‘it [is] incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists.’ Connell v. Colwell, 214 Conn. 242, 251, 571 A.2d 116 (1990). ‘The presence ... of an alleged adverse claim is not sufficient to defeat a motion for summary judgment.’ Farrell v. Farrell, 182 Conn. 34, 39, 438 A.2d 415 (1980); Real Estate Auctions, Inc. v. Senie, 28 Conn. App. 563, 567, 611 A.2d 452 (1992). Moreover, ‘[i]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.’ (Internal quotation marks omitted.) Connecticut Bank & Trust Co. v. Car riage Lane Associates, supra, 781, quoting Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984).” Wadia Enterprises, Inc. v. Hirsch-feld, 224 Conn. 240, 246-47, 618 A.2d 506 (1992); Pin-heiro v. Board of Education, 30 Conn. App. 263, 267-68, 620 A. 2d 159 (1993). The dispute between the parties here does not arise out of contested versions of the facts; but see footnote 2, supra; but rather out of the legal significance of the facts. We now consider the issues of the statute of limitations and the existence of a legal duty as applied to the facts of this case.

SNET’s Installation of the Jack

General Statutes § 52-584 is the statute of limitations applicable in an action to recover damages for injury to the person or property caused by negligence, reckless or wanton misconduct, or malpractice. That statute imposes two specific time requirements on prospective plaintiffs. The first requires a plaintiff to bring an action “within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . . .” The second provides that in no event shall a plaintiff bring an action “more than three years from the date of the act or omission complained of . . . .” The statutory clock on this three year time limit begins running when the negligent conduct of the defendant occurs. McDonald v. Haynes Medical Laboratory, Inc., 192 Conn. 327, 330, 471 A.2d 646 (1984). Consequently, an action may be time barred even if no injury is sustained during the three years following a defendant’s act or omission. Id.; see also Vilcinskas v. Sears, Roebuck & Co., 144 Conn. 170, 127 A.2d 814 (1956). It is the application of this statutory time limit that is in dispute in this case.

The plaintiffs claim that SNET was negligent with respect to the installation of the RJ31X jack (1) because the jack was installed to the wrong telephone line, (2) because SNET failed to test the jack it had installed to determine that it was connected to the proper line, and (3) because SNET failed to inform the plaintiffs or the defendant AA that the jack was connected to the wrong line. Each of those specifications of negligence revolves around a single act or omission, namely, the improper installation, which occurred more than three years before the commencement of this action. Consequently, these claims must fail in light of the three year requirement of § 52-584, unless the plaintiffs can successfully toll the running of the statute of limitations.

The plaintiffs argue that the wrong sued upon consists of a continuing course of conduct and therefore the statute of limitations did not begin to run until that course of conduct was completed. “To support a finding of a ‘continuing course of conduct’ that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty-must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong. In Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 13, 459 A.2d 115 (1983), [our Supreme Court] held that the alleged negligence of a contractor in failing to safeguard a dangerous hole left on the job site after it had completed its work ‘would not in itself establish that it had a continuing duty to warn of the danger or to safeguard the hole.’ [The Bartha court] affirmed the summary judgment granted by the trial court in that case because the plaintiff had presented no facts, by affidavit or otherwise, that would reasonably have supported an inference that the duty to protect against the hazard left upon the premises extended for any substantial period beyond the time of the contractor’s departure from the site.” Fichera v. Mine Hill Corporation, 207 Conn. 204, 209, 541 A.2d 472 (1988). “Where [our Supreme Court has] upheld a finding that a duty continued to exist after the cessation of the ‘act or omission’ relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act. See Giglio v. Connecticut Light & Power Co., [180 Conn. 230, 242, 429 A.2d 486 (1980)] (‘repeated instructions and advice given to the plaintiff by the defendant’ concerning a furnace it had previously converted and left in a defective condition); Giambozi v. Peters, 127 Conn. 380, 385,16 A.2d 833 (1940) (‘[w]hen . . . injurious consequences arise from a course of treatment [by a physician], the statute does not begin to run until the treatment is terminated’); cf. Handler v. Remington Arms Co., [144 Conn. 316, 321, 130 A.2d 793 (1957)] (duty to warn of danger of defective cartridge, ‘an inherently dangerous article,’ held to continue in existence until time of injury).” Fichera v. Mine Hill Corporation, supra, 210.

The plaintiffs presented no evidence to the trial court of any later conduct of SNET, wrongful or otherwise, related to the RJ31X jack. SNET had no contact with the jack after its installation. Without any such later conduct, the fact that SNET may have been, or should have been, aware of the danger it created at the time it completed the installation, or some time thereafter, does not establish any duty to warn or to correct the wrongdoing. See Connell v. Colwell, 214 Conn. 242, 255, 571 A.2d 116 (1990) (“the continuing course of conduct is not the failure of the alleged tortfeasor to notify the plaintiff of his wrongdoing”); Fichera v. Mine Hill Corporation, supra; Bartha v. Waterbury.House Wrecking Co., supra. Likewise, the plaintiffs’ assertion, which lacks any factual support in the record, that SNET had a continuing duty to test the jack’s connection will not serve to toll the running of the statute of limitations. Bartha v. Waterbury House Wrecking Co., supra.

Finally, the plaintiff argues that SNET had a continuing duty to warn them of the danger caused by SNET’s improper installation of the jack. The plaintiffs rely on cases that hold that a continuing duty to warn arises from an inherently dangerous situation or defective product. See, e.g., Handler v. Remington Arms Co., supra, 321; Ferguson v. Sturm, Ruger & Co., 524 F. Sup. 1042, 1044 (D. Conn. 1981). We first note that the amended complaint contains no allegation of an inherently dangerous situation or defective product. Of more significance is that that doctrine is not applicable to the facts of this case. The RJ31X jack in this case, even if negligently installed, did not pose an unreasonable risk of personal injury within the Handler doctrine sufficient to give rise to a continuing duty to warn.

Accordingly, the trial court properly rendered summary judgment with respect to the plaintiffs’ claims of negligent installation.

SNET’s Disconnection of the Phone Line

The plaintiffs’ remaining claims of negligence relate to SNET’s disconnection of the children’s telephone line to which the RJ31X jack had been installed. In their brief, the plaintiffs claim that a legal duty arose because “a reasonably prudent person could foresee the harm that came to the plaintiffs by virtue of: (a) the disconnection of the portion of the plaintiffs' alarm system that would have notified AA of the burglary; (b) that the plaintiffs were not notified of the same; and (c) that the defendant failed to inspect and monitor the jack at the plaintiffs’ home to determine that it was functioning properly.” We disagree.

SNET disconnected the children’s telephone line at the plaintiffs’ request. SNET was required to comply with its customers’ instructions. SNET had no duty to second-guess the plaintiffs’ request or to advise them of any possible implications of complying with that request. Cf. D'Esopo & Co. v. Bleiler, 13 Conn. App. 621, 623-24, 538 A.2d 719 (1988) (contractor not responsible for damages resulting from defective plans or specifications supplied by contractee). The fact that the plaintiffs and AA were using the disconnected telephone line for an alarm signal did not impose any duty on SNET. The alarm system was not a service of SNET. In fact, SNET’s only contact with the plaintiffs’ alarm system was some eight years earlier. The trial court therefore properly concluded that SNET had no duty to the plaintiffs regarding the disconnection other than to disconnect the telephone number and service at the plaintiffs’ request.

Accordingly, the trial court properly rendered summary judgment with respect to the plaintiffs’ claims of negligent disconnection.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs’ contract and tort claims against the named defendant were not the subject of the motion for summary judgment and are not part of this appeal.

       The plaintiffs contend that SNET charged them a monthly maintenance fee for the jack after its installation. This assertion finds no support in the record. It therefore cannot be considered in determining the motion for summary judgment. Connell v. Colwell, 214 Conn. 242, 251, 571 A.2d 116 (1990).
      The plaintiffs submitted copies of records in opposition to the summary judgment motion that list “RJ31X” with no corresponding rate or charge listed. There is no evidence that the plaintiffs ever received a bill that listed the RJ31X jack or that they paid any maintenance fee specifically for the jack.

       “[General Statutes] Sec. 52-584. limitation of action for injury to person OR property. No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained, of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

       We recognize that the effect of the statute of limitations can be harsh under circumstances as in the present case where the statute has run before any injury has occurred. Our statute of limitations, however, has been interpreted to permit such a result for nearly forty years. “It is not the function of this court to alter the will of the legislature merely because the results are unfair. . . . Instead it is our duty to construe the language as used by the legislature. . . . Absent any indication that the General Assembly no longer intends the phrase ‘from the date of the act or omission complained of to be construed in accordance with [the] decision in Vilcinskas v. Sears, Roebuck & Co., [144 Conn. 170, 127 A.2d 814 (1956)] . . . the three year limitation of General Statutes ...[§] 52-584 begins to run from the date of the negligent act.” (Citations omitted.) McDonald v. Haynes Medical Laboratory, Inc., 192 Conn. 327, 334, 471 A.2d 646 (1984).

       The plaintiffs do not claim that a continuing duty exists because of any special relationship between the parties that might give rise to such a continuing duty.

       In fact, in 1987, more than three years before the commencement of this action, SNET relinquished its nominal ownership of the jack.


text:
    Bank of Boston Connecticut, Trustee v. William P. Brewster et al.
    (11726)
    O’Connell, Foti and Lavery, Js.
    Argued April 20
    decision released July 27, 1993

      William H. Clendenen, Jr., for the appellant (named defendant).

      Barbara S. Miller, with whom were James J. Gentile, AnneM. Ragusa, Robert J. Engelman and, on the brief, Phyllis M. Pari, for the appellees (defendant Mary Elizabeth Greene et al.).

      Thomas M. Fiorentino, assistant attorney general, for the appellee (defendant Richard Blumenthal, attorney general).
   Per Curiam.

The defendant appeals from the trial court’s interpretation of a trust. The defendant claims (1) that the trial court’s decision is subject to de novo review, (2) that the trial court failed to follow fundamental principles of will construction, (3) that the trial court failed to find that a certain provision of the trust was ambiguous because it was inconsistent with provisions distributing other property, (4) that the trial court improperly applied the presumption against intestacy, and (5) that the trial court improperly adopted a construction that contradicts the plain meaning of a certain provision of the trust. We affirm the judgment of the trial court.

The following facts are pertinent to the resolution of this appeal. In 1972, Phebe Warren Brewster Healey died. She left one-half of the residue of her estate to her son, William P. Brewster. She left the other half of the residue of her estate in trust with the four sisters of her late husband as beneficiaries. The trust provided that the income from the trust be paid “in equal shares, during their lifetimes, at least as often as quarter-annually.” The trust further provided that upon the death of each of the sisters “the Trustees shall pay one-fourth (V4) of the principal of the Trust created by this Article as it may then exist and any accrued or unpaid income due to said deceased sister, free and discharged of trust to the children of said deceased sister, in equal shares. The children of any deceased child shall take the share of their parent, equally.”

In 1988, one of the sisters died. One-fourth of the principal of the trust as it then existed was paid to the sister’s only child. After another sister died in 1991, the trustees filed an accounting, to which William P. Brewster objected. Thereafter, the trustees brought this action requesting that the trial court construe the will and advise the trustees how to distribute the trust estate. The trial court rendered a decision interpreting the trust. William P. Brewster appealed.

We are persuaded by our examination of the record, briefs and arguments of the parties that the judgment of the trial court should be affirmed. In a thoughtful and comprehensive memorandum of decision, the trial court interpreted the trust in a manner consistent with our rules of construction. Bank of Boston Connecticut v. Brewster, 42 Conn. Sup. 474, 628 A.2d 1354 (1993). Because that memorandum meets the arguments raised in this appeal, we adopt the trial court’s well reasoned decision as a statement of the applicable law on these issues. It would serve no useful purpose for us to repeat the discussion therein contained. See Daw’s Critical Care Registry, Inc. v. Department of Labor, 225 Conn. 99, 102, 622 A.2d 518 (1993), and the cases cited therein.

The judgment is affirmed.


text:
    State of Connecticut v. John Dinoto
    (10665)
    Dupont, C. J., Laveky and Freedman, Js.

      Argued March 22
    decision released July 27, 1993

      Bruce A. Sturman, public defender, for the appellant (defendant).

      Lawrence J. Tytla, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellee (state).
   Freedman, J.

After conviction and sentencing for two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), three counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), one count of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) and two counts of risk of injury to a child in violation of General Statutes § 53-21, the defendant filed this appeal. The charges involve two victims alleged to have been sexually assaulted on separate occasions. The defendant does not challenge his conviction of sexual assault in the first degree involving one of the victims, or his conviction on the three counts of sexual assault in the second degree involving both victims. With respect to his convictions of sexual assault in the first degree and sexual assault in the third degree involving the other victim and with respect to his convictions of risk of injury to a child involving both victims, the defendant claims that the trial court’s instruction improperly enlarged the offenses charged and permitted the jury to consider statutory alternatives for which there was no supporting evidence. We agree with the defendant regarding the challenged sexual assault convictions, but do not agree with his challenge to the risk of injury convictions.

I

General Statutes § 53a-70 (a) (1) provides: “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 . . . .” (Emphasis added.) Likewise, General Statutes § 53a-72a (a) (1) provides: “A person is guilty of sexual assault in the third degree when such person . . . compels another person to submit to sexual contact (A) by the use of force against such other person or a third person, or (B) by the threat of use of force against such other person or against a third person, which reasonably causes such other person to fear physical injury to himself or herself or a third person . . . .’’(Emphasis added.) The state alleged, in the fifth and seventh counts of the substitute information, that the defendant had violated these statutes only by the use of force. Moreover, there was no evidence before the jury from which it could have concluded that the sexual assault was committed by the threat of use of force. The trial court, however, instructed the jury that it could convict the defendant of sexual assault in the first and third degrees if it found that he had committed the sexual assaults by either the use of force against the victim or the threat of use of force.

In State v. Chapman, 28 Conn. App. 360, 610 A.2d 1328, cert. granted, 223 Conn. 923, 614 A.2d 827 (1992), we addressed this precise claim under strikingly similar factual circumstances. Chapman, therefore, controls our disposition of the defendant’s challenge to the sexual assault convictions based on the fifth and seventh counts of the substitute information.

“It is well established that where, as here, the trial court’s charge includes statutory language as to both the use of force and the threat of use of force, either of which may be an element of the crime of sexual assault in the first [and third] degree[s], and the information restricts the offense[s] charged to use of force and no evidence is introduced on the threat of use of force, a trial court’s instruction to the jury on the threat of use of force as a disjunctive element of sexual assault is improper.” Id., 365. “The court has a duty not to submit to the jury in its charge any issue on which the evidence would not reasonably support a finding. . . . We cannot presume, as the state contends, that the jury rejected this issue because of the absence of evidence.” (Citations omitted.) Id., 366: Accordingly, the judgment with respect to counts five and seven must be set aside and a new trial ordered on those counts. Id.

II

General Statutes § 53-21 imposes criminal liability on “[a]ny person who wilfully or unlawfully causes or per- units 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 . . . .” (Emphasis added.) Section 53-21, then, “proscribe^] 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 ... (2) acts directly perpetrated on the person of the minor and injurious to [the child’s] moral or physical well-being.” State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963).

In its bill of particulars, the state alleged in counts three and eight that the defendant had violated the statute by acts directly perpetrated on the person of the two children and injurious to their moral or physical well-being. There was no evidence before the jury from which it could have concluded that the defendant had created or allowed a situation inimical to their moral or physical welfare. The trial court, however, instructed the jury on both alternative methods of violating § 53-21. The defendant contends that State v. Chapman, supra, controls our disposition of this claim. We disagree.

In State v. James, 211 Conn. 555, 560 A.2d 426 (1989), our Supreme Court addressed a nearly identical claim to that presented by the defendant in this case. The James court concluded that the trial court “should not have read the portion of § 53-21 relating to placing a child in such a situation that its life or limb is endangered or its health is likely to be impaired, because no such conduct was charged nor was any evidence supporting that alternative produced. It is the duty of the court to submit to the jury only those issues [that] are relevant not only to the pleadings but also to the facts in evidence and to submit to the jury no issue foreign to the facts in evidence. . . .Despite this deficiency, however, the charge cannot reasonably be viewed as submitting to the jury any basis for a risk of injury conviction other than the acts perpetrated on the person of [the minor victim] that also form the basis of the charges in the [other] counts. Because the jury found the defendant guilty of the charges in those counts, it must necessarily have found the facts that form the basis of the risk of injury charge . . . which expressly relies upon the same acts alleged in the [other] counts. It is clear, therefore, that the verdict on the [risk of injury] count rests upon a finding that the defendant committed the acts alleged in that count, which were adequately proved by the evidence.” (Citations omitted; internal quotation marks omitted.) Id., 583. In Chapman, by contrast, there were no other counts that could be used to clarify the basis of the jury’s verdict.

This case is controlled by State v. James, supra, in that there are multiple counts. These additional charges involved acts perpetrated against the person of each of the two victims. As in James, because the charge cannot reasonably be viewed as submitting to the jury any basis for the risk of injury convictions other than the acts perpetrated on the person of the two victims and because the jury found the defendant guilty of a sexual assault against each victim that is not challenged on appeal, the jury must necessarily have found that the defendant violated § 53-21 by doing acts directly perpetrated on the person of each minor victim. Under such circumstances, because it is not “impossible to tell whether the conviction rests upon the impermissible ground”; State v. Reid, 193 Conn. 646, 667 n.22, 480 A.2d 463 (1984); see also Yates v. United States, 354 U.S. 298, 312, 77 S. Ct. 1064, 1 L. Ed. 2d 1356 (1957); the court’s improper instruction on the risk of injury-charges against the defendant does not require that we reverse those convictions. State v. James, supra.

The judgment is reversed as to counts five and seven only and the case is remanded for a new trial on those counts.

In this opinion the other judges concurred.

       Neither of the claims raised by the defendant was properly preserved for appeal. In fact, immediately after the trial court’s instructions to the jury, the assistant state’s attorney brought to the court’s attention the fact that it had instructed the jury on alternative methods of committing the various crimes that were not set forth in the substitute information and the bill of particulars. The defendant’s trial counsel responded that he did not have any problems with the fact that the court’s instructions had enlarged the offenses with which he was charged and specifically stated that he did not want the court to correct its error. No mention was made at that time that there was no evidentiary support for the uncharged, alternative methods of committing the crimes charged. The defendant now seeks our review of the court’s instructions pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).
      In his brief, the defendant has not been particularly clear as to the constitutional basis of his claims on appeal. To the extent that the defendant attacks the fact that the court instructed the jury on statutory alternatives with which he was not charged, he raises a claim arising under “[t]he sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution [which] guarantee a criminal defendant the right to be informed of the nature of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and ... to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense . . . (Internal quotation marks omitted.) State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986). The defendant’s consent to the enlargement of the offenses with which he was charged, however, undermines his ability to maintain effectively any such notice based on a constitutional claim. See State v. Scognamiglio, 202 Conn. 18, 23, 519 A.2d 607 (1987); State v. Foshay, 12 Conn. App. 1, 24-25, 530 A.2d 611 (1987).
      To the extent that the defendant attacks the fact that the court instructed the jury on statutory alternatives for which there was no support in the evidence, however, his claim stands on a different constitutional footing. The right to have the jury consider only those statutory alternatives for which there is evidentiary support arises from the “ ‘fundamental right, protected by the due process clauses of the federal and Connecticut constitutions, to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt.’ ” State v. Williams, 202 Conn. 349, 363, 521 A.2d 150 (1987). “It is error for a court to submit to a jury as a basis for a conviction any statutory alternative ground unsupported by the evidence. ... ‘In [such] circumstances we think the proper rule to be applied is that which requires a verdict to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.’ Yates v. United States, 354 U.S. 298, 312, 77 S. Ct. 1064,1 L. Ed. 2d 1356 (1957).” (Citations omitted.) State v. Reid, 193 Conn. 646, 667-68 n.22, 480 A.2d 463 (1984). Such a claim is reviewable on appeal notwithstanding the defendant’s procedural default. State v. Williams, supra, 362-63.

       While we are aware that our Supreme Court has granted certification in Chapman, our role is to apply the law as it currently exists. State v. Leonard, 31 Conn. App. 178, 200 n.18, 623 A.2d 1052 (1993).

       As to one of the victims, the defendant has not challenged his convictions for sexual assault in the first degree and sexual assault in the second degree. As to the other victim, the defendant has not challenged his convictions for two counts of sexual assault in the second degree.