text:
    State of Connecticut v. Dominick Redente
    (7004)
    Spallone, O’Connell and Stoughton, Js.

      Argued June 19 —
    decision released August 29, 1989

      Leo E. Ahern, for the appellant (defendant).

      Rita M. Shair, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Jane B. Emons, former assistant state’s attorney, for the appellee (state).
   Stoughton, J.

The defendant, Dominick Redente, was charged in a substitute information with three counts of receiving cash contributions in violation of General Statutes (Rev. to 1983) §§ 9-348k (9) and 9-3481 and with one count of larceny in the third degree in violation of General Statutes §§ 53a-124 (a) (1), 53a-121 and 53a-119 (1). He pleaded not guilty and elected to be tried to a jury. The jury returned a verdict of guilty on all four counts which was accepted by the trial court.

On appeal, the defendant claims the trial court erred (1) in allowing an expert witness to give opinion testimony concerning ultimate issues of fact, (2) in failing to charge the jury on the state’s burden to prove a particular element of the crime, (3) in finding that there was sufficient evidence to prove larceny, (4) in admitting the defendant’s taped conversation into evidence, (5) in finding that the checks in issue were “cash,” within the meaning of § 9-348k (9), and (6) in failing to grant the defendant a reasonable continuance. We find no error.

The jury could reasonably have found the following facts. The defendant had served as the East Haven Democratic town committee chairman from 1970 to 1983. On August 25,1983, a testimonial dinner honoring East Haven Mayor Anthony Proto was held in East Haven. On the same date, Marilyn Vitale, who was challenging Proto for mayor, sent a letter to the state election commission (commission) questioning the propriety of soliciting funds through a testimonial dinner.

In response to the letter, Jeffrey Garfield, executive director and general counsel for the commission, ordered an investigation based on the complaint. Subsequently, the commission and Dominick Palumbo, treasurer of the testimonial committee, entered into a consent agreement. Under its terms, Palumbo was to pay a $1000 civil penalty out of the funds raised and return any remaining net proceeds to the donors on a pro rata basis. Palumbo also was ordered to provide the commission with a written accounting of the distribution to the donors.

The defendant assisted in returning checks to the donors. As the defendant returned the checks, he requested that the donors give him cash or a check payable to cash in an amount equal to the rebate. The defendant endorsed and deposited four of the checks, two into a personal savings account and two into a trustee account for his grandson for which the defendant was the only trustee.

Both the commission and the state’s attorney’s office undertook an investigation, and the state brought criminal charges against the defendant and Anthony Proto based upon election law violations. The trial court dismissed the charges against each on the ground that the statutes in question were unconstitutionally vague. The state was granted permission to appeal and, in State v. Proto, 203 Conn. 682, 526 A.2d 1297 (1987), our Supreme Court reversed the trial court’s dismissals and remanded the cases for further proceedings. On September 23, 1987, the trial court granted the state’s motion to disqualify the defendant’s attorney. On February 1, 1988, a substitute information was filed charging the defendant with one count of larceny in the third degree and three counts of election law violation. The defendant engaged new counsel on November 7,1987, and, on December 3,1987, the matter was assigned for trial to begin on January 11, 1988. The defendant’s new counsel requested that the trial be scheduled three or four weeks past January 11, but that request was denied by the trial court over the defendant’s objection.

The defendant’s first claim of error is that the trial court erred in allowing Garfield to testify as an expert on election law and to give opinion testimony concerning the ultimate issues for the trier of fact. Garfield was the chief counsel and executive director of the enforcement commission and was the state’s first witness at trial. The defendant does not contend that Garfield was not qualified to be an expert witness. Garfield testified as to the distinction between “contributions” and “expenditures.” He explained that distinction on the basis of his reading of the case of Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976). Over further objections, he was also allowed to testify that, in his opinion, a local party chairman should be charged with knowledge of the election laws.

The defendant claims that, in explaining the difference between a “contribution” and an “expenditure,” the witness was rendering a legal opinion and that he thereby usurped the court’s function. We disagree. “Generally, expert testimony may be admitted if the witness has a special skill or knowledge, beyond the ken of the average juror, that, as properly applied, would be helpful to the determination of an ultimate issue.” Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973). Here, Garfield first was asked to read part of the statutory definitions to the jury. As our own Supreme Court noted, the definitions of “expenditure” and “contribution” in § 9-335 (14) and (15) are not “paragons of clarity.” See State v. Proto, supra, 698. Given that “contribution” and “expenditure” each carries a specific and precise definition, it was undoubtedly helpful to the jury to have Garfield’s testimony on this matter.

We note also that a clarification of the difference between an expenditure and a contribution does not concern an ultimate issue. It was still up to the jury to decide whether the checks in question did constitute “contributions” within the meaning of § 9-348k (9). Similarity, Garfield’s opinion that a town party chairman would be familiar with the election laws does not embrace an ultimate issue of fact. Garfield expressed an opinion as to town chairmen in general, not whether the defendant himself was familiar with the election laws. Whether the defendant had wilfully and knowingly violated this law was left to the jury to decide. There is no merit to this claim.

The defendant's second claim of error is that the trial court failed to instruct the jury correctly concerning the state’s burden of proof. In his request to charge, the defendant asked the trial court to charge the jury that it was the state’s burden to prove that the checks in question were “contribution^] ‘made for the purpose’ of promoting the success of a political party and candidate.” The defendant claims that the trial court’s charge inadequately stated the elements of the crime because it omitted all references to the phrase “made for the purpose.”

The defendant based his request to charge on language of the Supreme Court in State v. Proto, supra, 705 n.15, in which the court stated: “In addition to establishing the required scienter element under § 9-348k (9), and proving, under § 9-348Z, that the violation was knowing and wilful, the state would also have to establish as part of its proof, that the contribution was ‘made for the purpose’ of influencing the candidate’s nomination or election, as required by § 9-335 (14).” (Emphasis in original.)

The trial court’s charge contained the following statements: “Now, in a charge of this nature, ladies and gentlemen, there are three separate elements that the State must prove beyond a reasonable doubt. And I will go through each one of those. The first element is that the contribution alleged to be received by Dominick Redente was cash and in an amount greater than fifty dollars. . . . The second element is that it was a contribution to promote the success of a political party or candidate. That is pretty much self explanatory, ladies and gentlemen.

“Now you have heard a lot, you have heard talk about contribution and expenditures. And that goes along with this element of the charge as to what is a contribution. A contribution means any gift, subscription, loan, advance, payment or deposit of money or anything of value, made for the purpose of influencing the election of any person or on behalf of a political party. ... If you should find that all or any one of the checks that are mentioned — the contributions mentioned in these first three counts were not contributions made to promote the success of a political party or candidate, then with respect to whatever checks— whatever check or checks you should so find, you must render a verdict of not guilty to that particular election law count. . . . Now ladies and gentlemen we go to the third element. The third element is that the defendant, Dominick Redente, acted knowingly and wilfully when he received cash contributions made for the purpose of promoting the success of a political party and candidate.” (Emphasis added.)

Jury instructions do not have to be given in the exact language of a defendant’s request to charge. See State v. Wood, 208 Conn. 125, 132, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988); State v. Boone, 15 Conn. App. 34, 56, 544 A.2d 217, cert. denied, 209 Conn. 811, 550 A.2d 1084 (1988). Here, the trial court’s charge substantially conformed to the defendant’s request to charge and clearly and adequately instructed the jury on the elements of the crime. There is no merit to this claim.

The defendant’s third claim is that the state failed to produce sufficient evidence that the defendant was guilty of larceny in the third degree. Under General Statutes § 53a-119, “[a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner.”

In reviewing a sufficiency of the evidence claim, we look at the evidence in a light most favorable to sustaining the jury’s verdict. State v. Smith, 15 Conn. App. 122, 125, 543 A.2d 301, cert. denied, 209 Conn. 805, 548 A.2d 441 (1988). In drawing its conclusions, the jury is permitted to apply its own common sense and experience to the totality of the evidence presented. State v. Johnson, 14 Conn. App. 586, 597, 543 A.2d 740, cert. denied, 209 Conn. 804, 548 A.2d 440 (1988).

The jury heard testimony from three persons who had written the checks in question. Richard Mauro, Joseph Paollela, and Paul Minnone all testified that they had purchased tickets to the testimonial dinner for Proto. All three testified that after receiving their rebate checks for the dinner, they made out new checks payable to cash and gave the checks to the defendant. Paollela and Mauro testified that in making these new checks they intended to make a political donation. All three testified that their checks were not intended to go to the defendant for his personal use. Minnone testified that his intent in making the second check might have been to replace the first check. In the past none of the witnesses had ever made a political contribution by writing a check made payable to cash.

The state also presented evidence that the defendant personally endorsed these replacement checks and deposited them in bank accounts that were under his control. The checks themselves were devoid of any other endorsements. On the basis of the evidence presented, the jury could reasonably have concluded that the replacement checks were intended to go to the Democratic town committee or the testimonial committee and that the defendant took them with the intent to keep them for himself. There is no merit to this claim.

The defendant’s fourth claim is that the trial court erred in allowing into evidence a tape recording of a conversation between the defendant and an inspector from the New Haven state’s attorneys’ office. The tape was entered into evidence, as well as a transcript thereof, through the inspector. The inspector testified that the tape had been made during the course of his investigation of the events leading to the defendant’s arrest. The inspector testified that he and another inspector had interviewed the defendant at his home and that during the interview the tape recorder was placed on the defendant’s kitchen table in full view.

At trial the defendant objected to the admission of the tape and transcript, on hearsay and constitutional grounds. On the basis of its reading of State v. DelVecchio, 191 Conn. 412, 464 A.2d 813 (1983), the trial court reviewed the transcript of the tape and overruled the defendant’s objections.

We have addressed this type of claim in State v. Kluttz, 9 Conn. App. 686, 704, 521 A.2d 178 (1987), where we stated that the out-of-court statements of a criminal defendant constitute an exception to the hearsay rule. See also State v. Stepney, 191 Conn. 233, 250-52, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). Contrary to the defendant’s assertions, there is no requirement that a defendant’s statements must be inculpatory in nature to fit within the rule; the statements need only be relevant. The defendant makes no claim that the tape was not relevant. The tapes therefore were properly admitted. There is no merit to this claim.

The defendant’s fifth claim is that the trial court erred in refusing to dismiss the charges concerning cash contributions. He claims the trial court was incorrect in ruling that checks made payable to cash were “cash contributions” under General Statutes (Rev. to 1983) § 9-348k (9). The trial court relied on State v. Moreno, 156 Conn. 233, 243, 240 A.2d 871 (1968), in which the court cited with approval the proposition that “ ‘[i]n ordinary business usage a check means the same as money.’ State v. Griswold, [73 Conn. 95, 98, 46 A. 829 (1900)].”

It is well settled that in construing a statute the court is entitled to presume that the legislature was aware of prior judicial construction relevant to any statute it enacts. See Murach v. Planning & Zoning Commission, 196 Conn. 192, 200 n.14, 491 A.2d 1058 (1985). We do not need to rely on such a presumption, however, to uphold the trial court’s ruling because it is clear from the legislative history that checks were intended to be included within the ambit of a “cash contribution” under § 9-348k (9). The legislative history reveals that at the time that this legislation was passed, the definition of “cash” was discussed on the floor of the House of Representatives. See 17 H.R. Proc., Pt. 7, 1974 Sess., p. 3633-37. The legislature was specifically made aware that the term “cash” included checks. An amendment that would have replaced the word “cash” with the more restrictive term “currency” was opposed, and the bill passed with the term “cash.” It is clear, therefore, that the trial court was correct in concluding that the legislature intended to include checks made payable to cash within the ambit of the statute. There is no merit to this claim.

The defendant’s final claim is that the trial court erred in not granting the defendant a continuance. “[T]he decision to grant or deny a continuance lies within the sound discretion of the trial court and will not be disturbed unless a clear abuse of that discretion is shown.” State v. Stanley, 197 Conn. 309, 311-12, 497 A.2d 46 (1985). “ Tt must be shown that the trial judge acted arbitrarily and substantially impaired the defendant’s ability to defend himself, before an appellate court will conclude that the trial court abused his discretion.’ United States v. Ellenbogen, 365 F.2d 982, 985 (2d Cir. 1966), cert. denied, 386 U.S. 923, 87 S. Ct. 892, 17 L. Ed. 2d 795 (1967).” State v. Myers, 193 Conn. 457, 463, 479 A.2d 199 (1984).

The defendant claims that because he had engaged new counsel only one month before the trial date was set and because the case involved complex issues, the trial court should have granted his request for a three to four week continuance. We are unpersuaded by this claim. First, the record reveals that the defendant obtained new counsel three months before trial commenced. Second, the defendant does not claim that the lack of a continuance substantially impaired the effectiveness of his counsel, but raises only a vague allegation that his counsel’s effectiveness was “impacted.” After our review of the record we conclude that the trial court acted within its discretion. There is no merit to this claim.

There is no error.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1983) § 9-335 provides in pertinent part: “(14) (A) ‘Contribution’ means (i) any gift, subscription, loan, advance, payment or deposit of money or anything of value made for the purpose of influencing the nomination for election, or election of any person or for the purpose of aiding or promoting the success or defeat of any constitutional amendment, referendum question or any question to be voted upon at any election or on behalf of any political party; (ii) a written contract, promise or agreement to make a contribution for any such purpose; (iii) the payment by any person other than a candidate or campaign treasurer of compensation for the personal services of any other person which are rendered without charge to a committee or candidate for any such purpose; (iv) an expenditure, as defined in subdivision (15) of this section, when made by a person with the cooperation of or in consultation with any candidate, candidate committee or agent of such candidate or which is made in concert with, or at the request of or suggestion of, any candidate, candidate committee or agent of such candidate; or (v) funds received by a committee which are transferred from another committee or other source for any such purpose. (B) The term ‘contribution’ does not include (i) a loan of money by a national or state bank made in the ordinary course of business; (ii) any communication made by any corporation, labor organization or other membership organization or association to its members, owners, stockholders, executive or administrative personnel, and their families; (iii) nonpartisan voter registration and get-out-the-vote campaigns by any corporation, labor organization or other membership organization or association aimed at its members, owners, stockholders, executive or administrative personnel, and their families; (iv) services provided without compensation by individuals volunteering their time; (v) the use of real or personal property, and the cost of invitations, food and beverages, voluntarily provided by an individual to a candidate or on behalf of a state central or town committee, in rendering voluntary personal services for candidate or party-related activities on the individual’s residential premises, to the extent that the cumulative value of such invitations, food and beverages provided by such individual on behalf of any single candidate for nomination or election does not exceed two hundred dollars with respect to any single election, and on behalf of all state central and town committees does not exceed four hundred dollars in any calendar year; (vi) the sale of any food or beverage for use in any candidate’s campaign or for use by any state central or town committee at a charge less than the normal comparable charge, if such charge is at least equal to the cost of such food or beverage to the vendor, to the extent that the cumulative value of the discount given to or on behalf of any single candidate for nomination or election does not exceed two hundred dollars with respect to any single election, and on behalf of all state central and town committees does not exceed four hundred dollars in a calendar year; (vii) any unreimbursed payment for travel expenses made by an individual who on his own behalf volunteers his personal services to any single candidate for nomination or election to the extent the cumulative value does not exceed two hundred dollars with respect to any single election, and on behalf of all state central or town committees does not exceed four hundred dollars in a calendar year; (viii) the payment by a party committee, political committee or individual of the costs of preparation, display, mailing or other distribution incurred by such committee or individual with respect to any printed slate card, sample ballot or other printed list containing the names of three or more candidates for nomination or election; (ix) the donation of any item of personal property by an individual to a committee for a fund-raising affair, including a tag sale or auction, or the purchase by an individual of any such item at such fund-raising affair, to the extent that the cumulative value donated or purchased does not exceed thirty dollars; (x) the purchase by an individual of a single ticket to any fund-raising affair to the extent the purchase price of such ticket does not exceed fifteen dollars; (xi) the purchase of advertising space which clearly identifies the purchaser in a program for a fund-raising affair, provided that the cost of such space does not exceed one hundred dollars if the purchaser is a stock corporation or other business organization or fifty dollars for purchases by any other person; (xii) the payment of money by a candidate to his candidate committee; or (xiii) the donation of goods or services by a stock corporation or other business organization to a committee for a fund-raising affair, including a tag sale or auction, to the extent that the cumulative value donated does not exceed one hundred dollars.
      “(15) (A) ‘Expenditure’ means (i) any purchase, payment, distribution, loan, advance, deposit or gift of money or anything of value, made for the purpose of influencing the nomination for election, or election, of any person or for the purpose of aiding or promoting the success or defeat of any constitutional amendment, referendum question or any question to be voted upon at any election, or on behalf of any political party; (ii) a written contract, promise or agreement to make an expenditure; or (iii) the transfer of funds by a committee to another committee. (B) The term ‘expenditure’ does not include (i) a loan of money by a state or national bank made in the ordinary course of business; (ii) any communication made by any corporation, labor organization or other membership organization or association to its members, owners, stockholders, executive or administrative personnel, and their families; (iii) nonpartisan voter registration and get-out-the-vote campaigns by any corporation, labor organization or other membership organization or association to its members, owners, stockholders, executive or administrative personnel, and their families; (iv) services provided without compensation by individuals volunteering their time; (v) any news story, commentary or editorial distributed through the facilities of any broadcasting station, newspaper, magazine or other periodical, unless such facilities are owned or controlled by any political party, committee or candidate; (vi) the use of real or personal property, and the cost of invitations, food and beverages, voluntarily provided by an individual to a candidate or on behalf of a state central or town committee, in rendering voluntary personal services for candidate or party-related activities on the individual’s residential premises, to the extent that the cumulative value of such invitations, food and beverages provided by such individual on behalf of any single candidate for nomination or election does not exceed two hundred dollars with respect to any single election, and on behalf of all state central and town committees does not exceed four hundred dollars in a calendar year; or (vii) any unreimbursed payment for travel expenses made by an individual who on his own behalf volunteers his personal services to any single candidate for nomination or election to the extent that the cumulative value does not exceed two hundred dollars with respect to any single election, and on behalf of all state or town committees does not exceed four hundred dollars in a calendar year.”

       These parts of the statutes were later read to the jury as part of the trial court’s charge.

       General Statutes (Rev. to 1983) § 9-348k provides in pertinent part: “acts prohibited as corrupt practices. The following persons shall be guilty of corrupt practices and shall be punished in accordance with the provisions of § 9-3481: ... (9) any person who offers or receives a cash contribution in excess of fifty dollars to promote the success or defeat of any political party, candidate, referendum question or any constitutional amendment or any question to be voted upon at any state election.”

       Paollela testified that he gave his check to the defendant’s son, but that he knew it was going to go to the defendant.

       Although in his brief the defendant alludes to constitutional violations, his argument is based on the claim that this was impermissible hearsay. In light of his failure to brief the constitutional claims, this aspect of the issue is deemed abandoned. See Mihalek v. Cichowski, 4 Conn. App. 484, 485 n.2, 495 A.2d 721 (1985).


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    Paul Kinderman v. Kathy Kinderman
    (6927)
    Daly, Norcott and Foti, Js.
    Argued June 21 —
    decision released August 29, 1989

      Wesley W. Horton, with whom was Alexandra Davis, for the appellant (plaintiff).

      Robert A. Epstein, with whom, on the brief, was Joseph T. O’Connor, for the appellee (defendant).
   Daly, J.

The plaintiff appeals from the judgment rendered in this dissolution of marriage action. He claims that the trial court erred in making various financial orders and in denying his motion for modification of periodic alimony. We find error.

The trial court found the following facts. The parties were married on October 12, 1963, and have two children, who had reached the age of majority by the time of the dissolution. The plaintiff was 49 years old and recently had been employed as the president of Asta Designs, Inc. As president, he earned a salary of approximately $90,000 yearly. The plaintiff currently owns a 51 percent interest in K & L Marketing, Inc., which company has contracts with two foreign corporations that earn $240,000 in gross annual income. The plaintiff also owns a 51 percent interest in a warehouse located at 1 Willard Road, Norwalk. The warehouse yields an annual income of approximately $88,000. He also has a one-half interest in the marital home located in Darien. The plaintiff claimed that his only source of income was $1935, the amount derived monthly from the warehouse rental.

The defendant, at the time of the dissolution, was 48 years old and had no particular skills or training. She earned approximately $900 monthly working as an office clerk. The court found that the total value of her assets, excluding her one-half interest in the marital home, amounted to less than $20,000.

The trial court found that the marital home was worth $600,000 and was subject to a mortgage in the amount of $32,000. It thus determined that each party’s share was $284,000. The court valued the warehouse at $1,015,000 and found that there was an outstanding lease to K & L Marketing, Inc., that expires in 2006, and a sublease to Alcide that, at the time of trial, had a remaining term of one and one-half years. Moreover, the sublease was renewable for five years at the sublessee’s option. The court found that the warehouse was also encumbered by a mortgage in the amount of $477,000 and thus had a net equity of $538,000.

The court made the following orders: (1) the defendant was awarded the marital home, subject to the mortgage, and most of the personalty contained therein; (2) the plaintiff was ordered to pay $1900 monthly alimony to the defendant, commencing March 15, 1988; (3) the plaintiff was allowed to retain his interests in K & L Marketing, Inc., and the warehouse; (4) the plaintiff was ordered to maintain his present life insurance policy for the defendant’s benefit as long as he was required to pay alimony; and (5) the plaintiff was ordered to pay $5000 toward the defendant’s counsel fees.

The judgment of dissolution was entered on March 3, 1988, and this appeal ensued. On July 5,1988, the plaintiff filed a motion for modification of the periodic alimony, based upon the defendant’s salary increase. The court denied the motion finding that the salary increase was not a substantial change of circumstances within the meaning of General Statutes § 46b-86 (a). From this judgment, the plaintiff filed an amended appeal.

The plaintiff claims that the court erred (1) in finding that he “recently” earned $90,000 annually, (2) in valuing the marital home at $600,000, (3) in valuing the warehouse at $1,015,000, (4) in failing to consider the defendant’s interest in a trust fund, and (5) in finding that the defendant’s salary increase was not a substantial change of circumstances for purposes of alimony modification.

It is by now elementary that the trial court has broad discretion in domestic relations cases. Breen v. Breen, 18 Conn. App. 166, 169, 557 A.2d 140 (1989). “Because of the opportunity for the trial court to observe the parties and the evidence, great weight is given to its judgment with respect to the financial awards. . . .’’Id.

“Reluctance to reverse the trial court’s exercise of discretion, however, should not mean that the door is entirely closed to successful appeals in dissolution cases.” Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 421, 479 A.2d 826 (1984). Our review is limited to determining whether the trial court abused its discretion or whether it could have reasonably concluded as it did conclude. Breen v. Breen, supra.

The plaintiff claims that the trial court improperly valued the marital premises. In its memorandum of decision, the court stated the following: “[The] defendant in her affidavit claims the home at 10 Mayflower Road is worth $500,000. [The] plaintiff in his affidavit claims the value is $600,000 and his appraiser values it at $732,000. The court will accept the plaintiffs valuation . . . .”

Our review indicates that the plaintiffs financial affidavit, dated March 16,1987, reflected the home’s value as $600,000 but that his affidavit dated December 16, 1987, reflected a valuation of $732,000. This higher value was based upon his appraiser’s opinion. The matter was tried over a period of four days in late January and early February, 1988. By accepting the valuation reflected in the plaintiffs earlier financial affidavit, the court erred in not basing the financial awards on the parties’ current financial circumstances. See Cuneo v. Cuneo, 12 Conn. App. 702, 709, 533 A.2d 1226 (1987); see also Practice Book § 463. In this case, the plaintiff filed an updated affidavit less than one month prior to trial. Accordingly, it was “reasonably possible” for the court to base its financial orders on the parties’ current financial circumstances. See Cuneo v. Cuneo, supra.

Had the trial court accepted the plaintiffs appraiser’s valuation of $732,000, each party’s share in the marital home, after the amount secured by the mortgage was deducted, would have been $350,000, as opposed to $284,000. In Cuneo v. Cuneo, supra, 710, we concluded that a $40,000 to $60,000 difference in valuation was sizeable. We have no trouble concluding that the $132,000 difference in valuation in this case is sizeable.

As in Cuneo, we express no view regarding what valuation the court should find on remand. Id. What is certain, however, is that the court’s financial orders must be based on the financial situation of the parties at the time of the new hearing.

“ ‘[IJssues involving financial orders are entirely interwoven. “The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.” ’ [Sunbury v. Sunbury, 210 Conn. 170, 175, 553 A.2d 612 (1989)], quoting Ehrenkranz v. Ehrenkranz, [supra], 424.” Daly v. Daly, 19 Conn. App. 65, 70, 561 A.2d 951 (1989). We recently noted that, in Sunbury, our Supreme Court “ordered that after this court found error in one part of a financial award, it was not proper to set aside only that portion of the award but was necessary to remand to the trial court for reconsideration of all of the financial orders.” Daly v. Daly, supra. In view of the fact that, on remand, the trial court must reconsider all of the financial orders, it is unnecessary, at this juncture, to consider the plaintiff’s remaining claims of error.

There is error, the judgment of the trial court regarding financial orders is set aside and the case is remanded for a new hearing.

In this opinion the other judges concurred.

       The plaintiff instituted this dissolution action and the defendant filed a cross complaint. The plaintiff later withdrew his complaint and judgment was rendered on the cross complaint. Nevertheless, Paul Kinderman was still referred to in the trial court as the plaintiff.


author: Norcott, J.

text:
    Board of Pardons v. Freedom of Information Commission et al.
    (5498)
    Daly, Norcott and Foti, Js.
    Submitted on briefs May 12 —
    decision released August 29, 1989

      Victor R. Perpetua, commission counsel, Mitchell W. Pearlman, general counsel, and Marianne D. Smith, assistant general counsel, filed a brief for the appellant (named defendant).

      Carl J. Schuman, assistant attorney general, Clarine Nardi Riddle, acting attorney general, and John F. Gill, assistant attorney general, filed a brief for the appellee (plaintiff).
   Norcott, J.

This case is before us on remand from the Supreme Court. The defendant freedom of information commission (FOIC) appealed from the decision of the trial court reversing its order requiring the plaintiff board of pardons (board) to limit its deliberations in future executive sessions to very proscribed circumstances. The FOIC had determined that the records of prisoners applying for pardon are not exempt from disclosure and that the board had violated the Freedom of Information Act by considering such records in executive session.

On appeal, we reversed the judgment of the trial court on jurisdictional grounds, finding that the board was not aggrieved by an order of the FOIC requiring it to conduct future deliberations in public except under certain narrowly defined circumstances. Board of Pardons v. Freedom of Information Commission, 14 Conn. App. 380, 540 A.2d 1077 (1988). Our Supreme Court reversed, concluding that the board was aggrieved, and remanded the case for determination on the merits of the appeal. Board of Pardons v. Freedom of Information Commission, 210 Conn. 646, 556 A.2d 1020 (1989). The underlying facts of this case are fully set forth in our original opinion.

On appeal, the FOIC claims that the trial court erred (1) in concluding that the FOIC based its decision on a misinterpretation of the law concerning prisoners’ rights to privacy, (2) in construing the FOIC’s order as requiring disclosure of all records considered by the board in its deliberations on prisoners’ applications for pardon, and (3) in exceeding the proper scope of judicial review. We find no error.

The trial court found that the FOIC had based its decision requiring the public disclosure of prisoners’ records considered by the board in executive session on the untenable proposition that prisoners have minimal privacy interests. We agree with the trial court.

General Statutes § 1-21 (a) authorizes a public agency, after meeting certain procedural requirements, to hold an executive session as defined in General Statutes § l-18a (e). That section defines an executive session as “a meeting of a public agency at which the public is excluded for one or more of the following purposes ... (5) discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-19.” General Statutes § 1-19 (b) provides in pertinent part that “[njothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be construed to require the disclosure of . . . (2) personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.” The FOIC, in its final decision, found that the records examined during the course of the board’s April 5,1982 deliberations were “in the nature of personnel or medical and similar files” under General Statutes § 1-19 (b) (2), but that disclosure of those records would not constitute an invasion of personal privacy. The FOIC distinguished between consideration of material related to persons other than the prisoner-applicant, which it found was exempt from disclosure, and material relating solely to the prisoner-applicant, which it found not to be exempt from disclosure. The FOIC’s rationale for this distinction was that prisoner-applicant material was not protected from disclosure because “the privacy interests of prisoners are at best, minimal.” We find the FOIC’s analysis faulty.

We note that “[ljawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Price v. Johnston, 334 U.S. 266, 285, 68 S. Ct. 1049, 92 L. Ed. 1356 (1948). Regarding the right of privacy implicated by government searches and seizures, the United States Supreme Court has held that the right “in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order.” (Emphasis added.) Hudson v. Palmer, 468 U.S. 517, 527-28, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984). In curtailing certain rights of inmates, the United States Supreme Court has recognized that the very tense and potentially explosive nature of correctional institutions poses a constant threat to both inmates and correctional personnel alike. See Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 132, 97 S. Ct. 2532, 53 L. Ed. 2d 629 (1977). Further, “central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves.” Pell v. Procunier, 417 U.S. 817, 823, 94 S. Ct. 2800, 41 L. Ed. 2d 495 (1974).

The board argues that to protect a prisoner’s safety and the safety of correctional staff, whose job it is to supervise inmates, it is imperative that certain personal information concerning prisoners be kept from public disclosure. As examples of such information, the board and the trial court cited material disclosing an applicant’s “sexual vulnerability” and whether the applicant had served as an “informant” while incarcerated. Balanced against these legitimate penal interests is, as the FOIC contends, the legitimate public interest in the data relating to prisoners being considered for pardons. Although the FOIC analogizes the importance of access to the board’s deliberations to public access to a criminal trial, that analogy is not valid. The FOIC fails to recognize that the board’s deliberations are sensitive, complicated proceedings involving the strong interest of correction officials in maintaining safety and order in our prisons. “In deciding whether to grant a pardon or to commute a prison sentence, the board ‘depends not simply on objective factfinding, but also on purely subjective evaluations and on predictions of future behavior . . . .’ Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 464, 101 S. Ct. 2460, 69 L. Ed. 2d 158 (1981).” Board of Pardons v. Freedom of Information Commission, supra, 651.

A file on a prisoner-applicant for pardon is a full dossier of information such as the presentence investigation report, medical reports, psychiatric evaluations, prison work records and disciplinary reports and other sensitive information that might relate not only to the prisoner-applicant himself but to other inmates and correctional staff as well. We cannot conceive of the board’s conducting its discussions of a prisoner’s application for pardon without implicating, in some respect, his relation to nonapplicant inmates, necessitating discussion of the records of nonapplicants. A certain amount of overlap is unavoidable during the board’s discussions. Members of the board should be allowed to discuss these sensitive matters in executive session, with certain information regarding applicants, other inmates and correctional staff shielded by the protection of confidentiality. This confidentiality is integral to the legitimate objectives of security and safety that the United States Supreme Court has recognized as being vital to the proper administration of prisons.

Moreover, the Connecticut Freedom of Information Act does not provide that prisoners who petition for pardons have no right to privacy with respect to exempted materials under § 1-19 (b) (2). The trial court therefore properly rejected the defendant’s argument to the contrary. “Although our Freedom of Information Act does not derive from any model act or the federal Freedom of Information Act, other similar acts, because they are in pari materia, are interpretatively helpful, especially in understanding the necessary accommodation of the competing interests involved.” Wilson v. Freedom of Information Commission, 181 Conn. 324, 333, 435 A.2d 353 (1980). As the Supreme Court did in Wilson, we now compare the federal Freedom of Information Act, 5 U.S.C. § 552 (b) (6), with the state act, General Statutes § 1-19 (b) (2). We note that the disclosure requirements are almost identical and that in Department of State v. Washington Post Co., 456 U.S. 595, 599, 102 S. Ct. 1957, 72 L. Ed. 2d 358 (1982), the United States Supreme Court determined that the primary purpose of Congress in enacting exemption (6) was to exclude those files the disclosure of which might harm the individual. The court discussed harm to the individual in terms of protecting individuals from “the injury and embarrassment that can result from the unnecessary disclosure of personal information.” Id. We find this reasoning particularly persuasive in the present case, when one considers that the potential harm involved is the endangerment of human life. We conclude that the trial court did not err in rejecting the FOIC’s claim that prisoner-applicants have no right to privacy in their personal data.

The FOIC’s second claim of error involves its order regarding the April 5,1982 deliberations of the board. After concluding that the disclosure of the records examined by the board in executive session would not have constituted an unwarranted invasion of privacy, the FOIC entered the following order: “Henceforth the respondent shall conduct its deliberations in executive session only when such deliberations would result in the disclosure of public records or the information contained therein exempted from disclosure by § 1-19 (b), General Statutes, or when otherwise permitted by the language of § l-18a (e), General Statutes.” The FOIC first contends that the trial court has misconstrued this order. It argues that the order does not require disclosure of any records considered by the board at the April 5,1982 meeting or require the board to disclose similar records in the future. We disagree.

In light of the FOIC’s rationale regarding the minimal privacy rights of prisoners, the order has erroneously limited the effect of General Statutes § 1-19 (b). Although there may well be information regarding prisoners applying for pardon that is “public” in nature, the FOIC, by its order, has determined that the types of information covered by § 1-19 (b) (2) are not exempt for these prisoner-applicants. Although the FOIC’s order here did not mandate the disclosure of any of the records considered by the board during its April 5,1982 deliberations, the effect of the in futuro order is to preclude the board from ever again discussing in executive session certain personal data concerning prisoners who are applicants for a pardon. The FOIC order, if left intact, would have the same chilling effect on the board during its next session as that noted by our Supreme Court in Zoning Board of Appeals v. Freedom of Information Commission, 198 Conn. 498, 502, 503 A.2d 1161 (1986). We conclude that the trial court did not err in construing the FOIC order as requiring the disclosure of personal records of any prisoner-applicant that are otherwise exempted under General Statutes § 1-19 (b) (2).

The FOIC also claims that the trial court exceeded its authority under General Statutes § 4-183 (g). The essence of this claim is that the scope of the trial court’s review in this case was limited to determining whether the FOIC decision was reasonably supported by the evidence before it and that the trial court exceeded that charge. We disagree.

“Judicial review of [an administrative agency’s] actions is governed by the Uniform Administrative Procedure Act [General Statutes §§ 4-166 through 4-189], and the scope of that review is very restricted.” Lawrence v. Kozlowski, 171 Conn. 705, 707, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977). “ ‘The court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of [its] discretion.’ ” New Haven v. Freedom of Information Commission, 205 Conn. 767, 773, 535 A.2d 1297 (1988), quoting Burnham v. Administrator, 184 Conn. 317, 322, 439 A.2d 1008 (1981).

General Statutes (Rev. to 1983) § 4-183 (g), in effect at the commencement of this action, provided: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”

The trial court’s reversal of the FOIC decision, as based on “an unsound proposition of law,” was authorized by § 4-183 (g) (4). Accordingly, we conclude that the trial court did not exceed the scope of its judicial review.

The process by which the board conducts its affairs, together with the potentially volatile subject matter that must be discussed in its deliberations, require that the shield of confidentiality provided by General Statutes § 1-19 (b) (2) protect the records of prisoner-applicants for pardons. Although there may be data concerning prisoner-applicants that is subject to disclosure, we conclude that the trial court did not err in rejecting the FOIC’s removing of the shield of confidentiality from those materials that properly belong under General Statutes § 1-19 (b) (2).

There is no error.

In this opinion the other judges concurred.

       The pertinent parts of the FOIC’s final decision relevant to this claim are as follows:
      “18. It is found that the records examined in the course of the respondent’s deliberations are in the nature of personnel or medical and similar files.
      “19. It is found, however, that the privacy interests of prisoners are at best, minimal.
      “20. It is further found that there is a legitimate public interest in the data relating to prisoners being considered for pardons.
      “21. It is therefore concluded that to the extent that materials considered by the respondent in its deliberations referred to the prisoner being considered for pardons, disclosure of such materials would not constitute an invasion of personal privacy. Therefore such materials are not exempted from disclosure by § 1-19 (b) (2), General Statutes.”

       5 U.S.C. § 552 provides in pertinent part: “(a) Each agency shall make available to the public information as follows . . .
      “(b) This section does not apply to matters that are—
      “(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy . . . .”


text:
    James S. Wilson v. R.F.K. Corporation et al.
    (7516)
    Dupont, C. J., Daly and O’Connell, Js.
    Argued June 13 —
    decision released September 5, 1989

      Mark S. Neistat, for the appellant (named defendant).

      Michael W. Murray, for the appellee (plaintiff).
   Daly, J.

The plaintiff instituted this action to recover damages for injuries sustained as a result of a battery committed by the named defendant’s bartender at its restaurant. From the judgment rendered by the court in favor of the plaintiff, the named defendant has appealed. The defendant claims that the trial court committed the following errors: (1) it allowed the plaintiff to amend his complaint after he had rested his case and the defendant had moved for dismissal; (2) it found a causal connection between the battery and the plaintiffs injuries without sufficient medical evidence; (3) it improperly applied the law of apparent authority; and (4) it found that the defendant’s bartender was the only employee in the bar at the time of the incident, despite testimony to the contrary. We find no error.

The trial court found the following facts. The defendant is the owner of Wish’s Restaurant in East Hartford. On April 30, 1986, Thomas McKenzie was employed by the defendant as a bartender at the restaurant. At approximately 8:45 p.m. that day, the plaintiff was a patron at the restaurant’s bar. The plaintiff was making a great deal of noise in the bar, shouting and banging a hockey puck on the table, and he broke a window. McKenzie asked the plaintiff to be quiet and also threw ice cubes at the plaintiff to quiet him down. McKenzie finally climbed over the bar and punched the plaintiff in the face, causing him to fall face first into a vending machine.

The next morning, the plaintiff went to the Manchester Memorial Hospital emergency room for treatment. The plaintiff suffered multiple facial fractures for which he received remedial surgery.

The court found that McKenzie was acting within the scope of his employment when he struck the plaintiff and awarded the plaintiff damages in the amount of $8127.62.

In the defendant’s first claim of error, it argues that the court erred in allowing the plaintiff to amend his complaint after he had rested his case and after the defendant had moved to dismiss the complaint. The defendant claims that it was prejudiced in its defense of the case by the court’s ruling.

“ ‘The trial court may allow, in its discretion, an amendment to pleadings. . . . Such a ruling can be reversed only upon a clear showing of an abuse of discretion. . . . Factors to be considered in determining whether there has been an abuse of discretion include unreasonable delay, fairness to opposing parties and the negligence of the party offering the amendment. . . .’ ” (Citations omitted.) Colonial Bank & Trust Co. v. Matoff, 18 Conn. App. 20, 26, 556 A.2d 619 (1989), quoting Jonap v. Silver, 1 Conn. App. 550, 555, 474 A.2d 800 (1984); see also Practice Book § 178.

Our review of the record indicates that the amendment to include a prayer for relief for compensatory damages merely conformed the pleadings to the proof offered by the plaintiff, as permitted by Practice Book § 178. Moreover, the record indicates that the defendant did not move to continue the trial or to amend its answer. See Smith v. New Haven, 144 Conn. 126, 132-33, 127 A.2d 829 (1956). The defendant’s failure to do so weakens its claim of prejudice. We conclude that the court did not abuse its discretion in permitting the amendment.

The defendant next claims that the trial court erred in finding a causal connection between the blow received and the injuries sustained by the plaintiff. The defendant claims specifically that the medical evidence presented, in the form of a doctor’s report, was insufficient to establish the necessary causal connection.

“In order to recover damages, a plaintiff must establish a causal relationship between the injury and the physical condition which he claims resulted from it.” Doyle v. Russell, 5 Conn. App. 480, 483, 499 A.2d 1169 (1985), citing Bonner v. Winter, 175 Conn. 41, 48, 392 A.2d 436 (1978). The connection must depend upon more than surmise and conjecture, because the trier of fact is concerned only with reasonable probabilities. Id.

“The testimony or opinion of the medical expert must establish that ‘it was reasonably probable that the [condition in question] resulted from the injury’ received in the accident and was therefore directly caused by that injury. (Emphasis added.) Witkowski v. Goldberg, [115 Conn. 693, 696, 163 A. 413 (1932).]” Doyle v. Russell, supra.

As part of his proof of causation, the plaintiff presented the report of Barry D. Trabitz, an oral and maxillofacial surgeon. The report stated that the plaintiff “was seen first in the Emergency Room of Manchester Memorial Hospital on May 1,1986, eighteen (18) hours after he was struck on the left side of the face,” and it also detailed the plaintiff’s injuries. Although it is true that the report does not specifically state that the plaintiff’s injuries were the result of the battery, the report reveals that Trabitz believed the injuries to be the result of a blow to the plaintiff’s face. See Struckman v. Burns, 205 Conn. 542, 555, 534 A.2d 888 (1987).

Moreover, the court was not confined to medical evidence alone in determining whether a causal relationship existed. Avery v. Ginsburg, 92 Conn. 208, 212, 102 A. 589 (1917). The injuries that the plaintiff sustained were not such as to make medical evidence essential because these were the type of injuries that are within the common knowledge of a lay person. Compare Avery v. Ginsburg, supra (expert testimony not necessary to establish that broken ribs were sustained as a result of an automobile accident), with Bates v. Carroll, 99 Conn. 677, 679, 122 A. 562 (1923) (expert testimony-necessary to establish that cancer was caused by the injury sustained in an automobile accident). Accordingly, the court could consider the testimony of the plaintiff and several eyewitnesses to the incident on the issue of causation. We conclude that the plaintiff presented sufficient evidence from which the court could conclude that there was a causal relationship between the blow he received and the injuries he sustained.

The defendant’s next claim is that the trial court erred in applying the law of apparent authority. In its substituted memorandum of decision, the court stated the following: .“In deciding that there was a prima facie case in response to the defendant’s motion to dismiss, the Court used the term, apparent authority. The Court is of the opinion that apparent authority still applies to this case, but as the evidence came in and the case was completed, the Court also came to the conclusion that we are dealing here with both apparent authority and implied authority.” It is clear from the memorandum of decision that the court considered both apparent and implied authority, but that it correctly applied the proper master-servant standard of liability.

“It is well established that an employer is liable for the wilful torts of his employee when they are committed within the scope of his employment and in furtherance of the employer’s business.” Cardona v. Valentin, 160 Conn. 18, 22, 273 A.2d 697 (1970). Whether the wilful tort occurred within the scope of the employment and in furtherance of the business is a question of fact for the trier. Id.

The trial court found that the defendant had hired McKenzie as a bartender, and that McKenzie had been instructed how to handle inebriated patrons and to keep order in the bar. McKenzie’s battery upon the plaintiff grew out of his attempt to abide strictly by his instructions. “The fact that the specific method a servant employs to accomplish his master’s orders is not authorized does not relieve the master from liability. ... A master does not escape liability merely because his servant loses his temper while he is conducting the master’s business.” (Citations omitted.) Pelletier v. Bilbiles, 154 Conn. 544, 548, 227 A.2d 251 (1967).

Our review of the evidence leads us to conclude that the trial court could reasonably have found that the battery by McKenzie arose in the course of his attempt to carry out the defendant’s instructions. As such, the battery was merely the culmination of a transaction related directly to McKenzie’s duties, and the defendant could properly be found liable.

The defendant’s final claim of error merits little discussion. The defendant claims that the court erred in finding that McKenzie was the only employee in the barroom on the night of the incident. Robert Krist, the defendant’s president, testified that the restaurant’s pizza cook was on the premises that evening and that he was the employee responsible for maintaining order.

The credibility of witnesses is a question of fact to be determined by the trier. “ ‘This court cannot and will not weigh the evidence contained in the record before us.’ ” Sansone v. Lettieri, 4 Conn. App. 466, 467-68, 495 A.2d 720 (1985). We find no basis for concluding that the trial court erred in its finding.

There is no error.

In this opinion the other judges concurred.

       This action was brought against both the corporation and Thomas McKenzie, the bartender. McKenzie, however, was defaulted for failure to appear. The corporation is the only defendant appealing. Accordingly, as used in this opinion, the term “defendant” refers only to the corporation.


author: Spallone, J.

text:
    State of Connecticut v. Duane Ziemba
    (6334)
    Dupont, C. J., Spallone and Foti, Js.
    Argued October 4, 1988 —
    decision released July 19, 1989

      G. Douglas Nash, assistant public defender, for the appellant (defendant).

      Vincent J. Dooley, deputy assistant state’s attorney, with whom, on the brief, was Timothy J, Liston, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crimes of robbery in the first degree; General Statutes § 53a-134 (a) (4); assault in the third degree; General Statutes § 53a-61 (a) (1); and conspiracy to commit robbery in the first degree. General Statutes §§ 53a-48, 53a-134 (a) (4). The defendant claims that the trial court erred (1) in denying his motions for judgment of acquittal on the robbery and conspiracy to commit robbery charges, (2) in defining the term “owner” during its instructions to the jury in such a way as to enlarge the offense of robbery, (3) in instructing the jury on statutory alternatives for which there was insufficient evidence, thereby denying him the right to a unanimous jury, (4) in incorporating into its charge to the jury on conspiracy the same erroneous robbery charge and thus enlarging the offense, and (5) in failing to instruct the jury regarding the dangers of testimony from an accomplice. We agree with the defendant’s first claim of error and therefore it is unnecessary to review his other claims.

From the evidence produced at trial, the jury could reasonably have found the following facts. Between November and December, 1986, Brian Britton was employed as the assistant manager of the Kentucky Fried Chicken restaurant located at 382 East Main Street in Middletown. As part of his duties, Britton would deposit, at the close of each business day, the cash receipts for that day in the night depository at the bank. Britton and the defendant, Duane Ziemba, along with Margaret Bair, the defendant’s girlfriend, agreed to stage a robbery of the restaurant’s cash proceeds. Their plan was that the defendant, using a toy pistol, would “rob” Britton, and later the two would meet and divide the money. Britton, who had been previously involved in criminal activities and was known to the police, feared that the police might suspect a staged robbery. Accordingly, he and the defendant planned to have present an unwitting coworker who would witness the events and whose account of the events they hoped would lend credence to Britton’s report of a robbery.

Pursuant to this plan, Britton closed the restaurant on December 11, 1986, and, carrying a bag of fried chicken and the day’s cash proceeds, approximately $1800, walked with a coworker, Eric Beavers, toward his car, which was parked behind the restaurant near a trash dumpster. As Britton and Beavers were about to enter the car, they were accosted by the defendant, who, wearing a ski mask and a dark shirt and brandishing a toy pistol, leaped from behind the dumpster and directed them to get on the ground or he would “blow [their] . . . head[s] off.” Beavers complied and, while Beavers was on the ground, the defendant ordered Britton to throw the money bags over to him. Britton threw the money bags and the bag of fried chicken. While this was occurring, Beavers, still on the ground, looked up at the defendant. The defendant kicked Beavers in the shoulder, saying, “I told you to keep your head down.” The defendant then fled from the scene, taking the money and the bag of chicken with him.

Later that morning, the defendant and Britton met to divide the money. The defendant informed Britton that the money totaled $1100 and offered Britton one half of that amount. Britton, knowing the defendant was shortchanging him, became angry and informed the police of the defendant’s involvement in the crime. The police apprehended the defendant that afternoon and transported him to the Middletown police department. Upon learning that Britton had implicated him in the robbery, the defendant implicated Britton.

Shortly after the defendant’s arrest, the defendant’s girlfriend, Margaret Bair, took the police along the route the defendant had used to escape on the night of the robbery. Bair had accompanied the defendant during his flight from the scene. Along the route shown them by Bair, the officers discovered a plastic pistol, a ski mask, and a bag bearing the Kentucky Fried Chicken logo and containing chicken bones.

In the defendant’s car, the police found a red flannel shirt and a pair of sneakers. The soles of the sneakers were determined to match the footprints left in the snow at the crime scene. Moreover, police talked with a witness who stated that he had observed the defendant’s car departing from the scene.

The defendant’s first claim is dispositive of the appeal. The defendant claims that the trial court erred in denying his motions for judgment of acquittal on the first degree robbery and conspiracy to commit robbery charges. During argument to the court on the motions for judgment of acquittal, the defendant consistently pointed out that he had been specifically charged in the information with having “committed a robbery of Brian Britton.” The defendant’s position was that the evidence presented was insufficient to support that charge. The defendant has made a number of arguments, both to the trial court and on appeal, in support of that position. We agree with his argument that there was insufficient evidence to support a finding that the defendant used or threatened the use of force for the purpose of preventing or overcoming resistance to the taking or retention of the property or compelling the owner or another to deliver up the property. Accordingly, we find error.

The following facts are pertinent to our analysis. In count one of the substitute information, the state charged the defendant with robbery in the first degree, as follows: “At the town of Middletown, in the parking lot of Kentucky Fried Chicken, 382 South Main Street, on or about the 11th day of December, 1986 at approximately 10:00 p.m., the said Duane Ziemba did commit a robbery of Brian Britton and in the course of the commission of the crime the said Duane Ziemba did display and threaten the use of what he represented by his words and conduct to be a pistol, in violation of Section 53a-134 (a) (4) of the Connecticut General Statutes.” (Emphasis added.) The theory of the state’s case, as presented through the testimony of the various witnesses, was that Britton and the defendant conspired to take the money and to “stage” a robbery in front of Eric Beavers in an effort to conceal their involvement in the theft. The evidence was that the two men had planned in advance that the defendant would pull out a toy gun in order to make it appear to Beavers that the money was being taken from Britton by force and against his will. The question is whether, in light of the charge as set out in the information, and in light of the evidence produced at trial, the state successfully made out a case against the defendant of robbery in the first degree. We hold that it did not.

By charging the defendant with “committing] a robbery of Brian Britton,” the state effectively narrowed the charge against the defendant. General Statutes § 53a-133 defines the alternative ways in which the crime of robbery may be committed: “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.” Because the defendant was specifically charged with having committed “a robbery of Brian Britton,” in the course of which he “did display and threaten the use of what he represented by his words and conduct to be a pistol,” the reasonable implication is that the state was charging the defendant with committing a larceny against Brit-ton and threatening the use of a firearm for the purpose of effectuating the taking of the property from Britton. That is, the information can only fairly be read to inform the defendant that he was being charged with displaying what he represented to be a firearm for the purpose of either preventing or overcoming any resistance by Britton to the taking or compelling Britton to deliver up the money. “The function of an accusatory pleading such as an information is to inform a defendant of ‘the nature and cause of the accusation’ as required by our federal and state constitutions. U.S. Const., amend. VI; Conn. Const., art. I § 8.” State v. Carter, 189 Conn. 631, 646, 548 A.2d 379 (1983). Nothing is more elementary in criminal law than that an accused is required to defend only against the charge alleged. State v. Belton, 190 Conn. 496, 501, 461 A.2d 973 (1983); State v. Ruiz, 171 Conn. 264, 269, 368 A.2d 222 (1976); State v. King, 6 Conn. App. 247, 251, 504 A.2d 560 (1986). The state is limited to proving that the defendant has committed the offense in substantially the manner described. State v. Belton, supra.

In this case, the evidence failed to support what the state alleged in the information. “Without 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’; General Statutes § 53a-133; there can be no robbery or plan to commit a robbery.” State v. Coston, 182 Conn. 430, 435, 438 A.2d 701 (1980). “ ‘[T]he word “purpose” is synonymous with “object” and “intent.” ’ State v. Kurvin, 186 Conn. 555, 567, 442 A.2d 1327 (1982).” State v. Williams, 202 Conn. 349, 356, 521 A.2d 150 (1987); see also State v. Horne, 19 Conn. App. 111, 562 A.2d 43 (1989). “Intention is a mental process which, of necessity, must be proven either by the statements or the actions of the person whose conduct is being examined.” State v. Williams, supra, 356-57.

The only evidence of the defendant’s purpose in displaying what he represented by words or conduct to be a firearm was the state’s evidence regarding the agreement between Britton and the defendant to “stage” a robbery in front of Beavers. The necessary inference to be drawn from that testimony was that, in pulling out the toy gun, the defendant, acting in conformance with that agreement, merely intended to deceive Beavers as to the true nature of the transaction then occurring. The state introduced no evidence to support a conclusion that the defendant pulled out the toy gun for the purpose of effectuating the taking of the money from Britton. In short, the state failed to prove that the defendant committed the crime of robbery as alleged in the information.

The issue of whether the state’s evidence was legally sufficient to establish that the defendant committed the crime of robbery in some way other than that charged is not before us. We are faced with an information charging the defendant with having committed a robbery in the first degree in a particular manner. The possibility that the state’s evidence might have been legally sufficient to establish the commission of a robbery by means other than that alleged is immaterial. The state is constrained to prove what it alleges in the charging documents.

The defendant claims as well that the evidence failed to support the charge of conspiracy to commit robbery in the first degree.

In the fourth count of the information, the state charged the defendant as follows: “[The state] further accuses Duane Ziemba of conspiracy and charges that at the Town of Middletown, at the Kentucky Fried Chicken ... on or about the 11th day of December 1986, the said Duane Ziemba, with intent that conduct constituting a crime be performed, namely, robbery in the first degree ([General Statutes] § 53a-134 [a] [4]), did agree with Brian Britton and Margaret Bair to engage in and cause the performance of such conduct; in violation of Section 53a-48 of the Connecticut General Statutes.” The state described the overt act as follows: “In pursuance of said conspiracy, the aforesaid Duane Ziemba, on various dates in December 1986 prior to December 11, 1986, did discuss and plan with Brian Britton a staged robbery of Brian Britton at his place of employment, Kentucky Fried Chicken, and said robbery did take place at about 10 p.m. on December 11, 1986.” Although the information charged that the defendant agreed with two other individuals to bring about the elements of the offense of robbery in the first degree, the evidence presented at trial failed to support the charge.

To establish the crime of conspiracy under General Statutes § 53a-48, it must be shown that an agreement was made between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. State v. Beccia, 199 Conn. 1, 3, 505 A.2d 683 (1986). Conspiracy is a specific intent crime, with the intent divided into two elements: (1) the intent to agree or to conspire; and (2) the intent to commit the offense that is the object of the conspiracy. Id., 4. To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree, but also that they intended to commit the elements of the offense. Id.

In this case, the state charged the defendant with the crime of conspiracy to commit robbery in the first degree as defined in General Statutes § 53a-134 (a) (4), in violation of § 53a-48. The state was thus required to prove, inter alia, (1) that the defendant intentionally entered into an agreement with at least one other person to engage in conduct constituting the crime of robbery in the first degree, as defined by General Statutes § 53a-134 (a) (4), and (2) that the defendant intended to commit the elements of the offense. The evidence presented at trial, however, failed to establish either. Again, the evidence presented established only that the defendant conspired with Britton and Bair to use force (i.e., to display what he represented by words or conduct to be a firearm) for the purpose of deceiving Beavers, the unwitting bystander-witness, whose presence at the scene was central to their efforts to maximize their chances of avoiding detection and prosecution for a theft offense. There was no evidence to support a finding that the defendant entered into an agreement to use force for any of the purposes proscribed by § 53a-133, the statute defining the crime of robbery, i.e., preventing or overcoming resistance to the taking or retention of property. Because the state failed to prove that the defendant agreed to engage in the use of force for any of the purposes outlined in § 53a-133, the proof could not sustain the charge of conspiracy to commit robbery in the first degree. Alternatively, there was no evidence to establish that, in entering into an agreement, the defendant intended to use force for the purposes proscribed by the robbery statute. Under these circumstances, the defendant is correct in arguing that the trial court erred in denying his motion for judgment of acquittal on the conspiracy charge.

There is error, the judgment is set aside as to the conviction on count one of robbery in the first degree; General Statutes § 53a-134 (a) (4); and as to the conviction on count four of conspiracy to commit robbery in the first degree; General Statutes §§ 53a-134 (a) (4), 53a-48; and the case is remanded with direction to render judgment as on file as to counts two and three and to render judgment of not guilty on counts one and four.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in pertinent part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged.”
      The crime of robbery is defined in General Statutes § 53a-133, which 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.”

       General Statutes § 53a-48 provides in pertinent part: “(a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       The defendant elected to introduce evidence on Ms own behalf after the trial court had denied his motion for judgment of acquittal made at the end of the state’s evidence. Under the waiver rule, a defendant may not appeal the denial of a motion for judgment of acquittal brought at the close of the state’s case-in-chief when he elects thereafter to introduce evidence in Ms own behalf. State v. Simino, 200 Conn. 113, 118, 509 A.2d 1039 (1986); State v. Lizzi, 199 Conn. 462, 464, 508 A.2d 16 (1986); State v. Rutan, 194 Conn. 438, 440-44, 479 A.2d 1209 (1984). In reviewing the sufficiency of the evidence in cases in which the defendant has elected to present a defense after his initial motion for judgment of acquittal is denied, therefore, we ordinarily look at the evidence in toto in order to review the trial court’s ruling on the motion for judgment of acquittal made after all the evidence had been presented. State v. Simino, supra. We have reviewed the record with these principles in mind and conclude that the evidence as a whole fails to support the allegations set out in the information.

       The state argues that there was sufficient evidence to support a conviction of robbery in that the defendant used force against Eric Beavers. In support of this argument, the state points out that the force or threat of force may be directed at anyone who is in a position to prevent the taking. See State v. Tinsley, 181 Conn. 388, 391, 435 A.2d 1002 (1980), cert. denied, 449 U.S. 1086, 101 S. Ct. 874, 66 L. Ed. 2d 811 (1981). Whether in the abstract the evidence could be found to support a finding that the defendant committed a robbery in any of the myriad ways possible under the statute is not the issue before us. The defendant was charged with one specific way of committing the crime of robbery, and the evidence simply fails to support that charge. The defendant was not charged in count one with robbery by virtue of his use of force against Beavers.


author: Foti, J.

text:
    Jeffrey P. Ossen v. Donna Kreutzer
    (7297)
    O’Connell, Stoughton and Foti, Js.
    Argued June 8 —
    decision released September 5, 1989

      Barry T. Pontolillo, for the appellant (plaintiff).

      Donna Kreutzer, pro se, the appellee (defendant).
   Foti, J.

The plaintiff appeals from the judgment dismissing his summary process action. The sole issue presented in this appeal is whether, as a jurisdictional prerequisite to a summary process action initiated pursuant to General Statutes § 21-80 (b) (3) (B), the plaintiff must allege in his complaint a “preliminary and distinct thirty day written notice period.”

The facts are not in dispute. On December 3, 1987, the plaintiff lessor and the defendant lessee entered into a written lease for the rental of a mobile home lot. Under the terms of the lease, the defendant agreed to pay an annual rent of $2280, payable in twelve monthly installments of $190, each to be paid on the first of each month beginning in January, 1988. The defendant took possession and subsequently failed to pay the rent due for the months of February, March, April and May of 1988. By way of a notice to quit possession dated May 12, 1988, and served upon the defendant on May 14, 1988, the plaintiff notified the defendant to vacate the lot on or before June 16,1988. The notice to quit stated the total arrearage due. The notice to quit served upon the defendant was referred to in the complaint and appended as an exhibit. The defendant did not tender the arrearage prior to June 16,1988, and remains in possession.

On August 10, 1988, the trial court held a hearing and determined sua sponte that it lacked subject matter jurisdiction to hear the plaintiffs claim because the plaintiff failed to comply with General Statutes § 21-80 (b) (3) (B). The trial court interpreted that statute to require the plaintiff, as a prerequisite to the institution of a summary process action, to give the defendant an additional thirty days notice as required under General Statutes § 47a-15. Because we conclude that the only notice requirements applicable to a summary process action initiated under § 21-80 for nonpayment of rent are clearly set forth in § 21-80 (b) (3) (B) and that no separate, preliminary notice period is required, we find error.

“As a condition precedent to a summary process action, proper notice to quit is a jurisdictional necessity.” Lampasona v. Jacobs, 209 Conn. 724, 729, 553 A.2d 175 (1989). Section 21-80 (b) (3) applies to summary process actions involving mobile home parks. Id. Notwithstanding the provisions of § 47a-23, the general summary process statute, when a tenant, as in this case, breaches her lease by failing to pay rent, and the landlord seeks to terminate the tenancy, the landlord must follow the procedures enunciated in § 21-80 (b) (3) (B). Under that section, to effectuate the termination the landlord must give the resident thirty days written notice and that notice must state the total arrearage due. If the tenant tenders the total arrearage due within the thirty day notice period provided in this section, the landlord “shall not maintain or proceed with the summary process action.” General Statutes § 21-80 (b) (3) (B). The purpose for reciting the total arrearage due in the notice is to afford the tenant a final opportunity to save the tenancy by tendering the total arrearage within the thirty day grace period. If tender is made within the grace period, the statute bars further action by the landlord. Thus, under the plain language of § 21.-80 (b) (3) (B), the prerequisites to the maintenance of a summary process action for nonpayment of rent are a written thirty day notification to the tenant and a statement of the total arrearage due. Section 21-80 (b) (3) (B) does not, as the trial court found, require a separate, preliminary notice period pursuant to § 47a-15.

Section 47a-15 applies to residential apartments generally; Hoban v. Masters, 36 Conn. Sup. 611, 613, 421 A.2d 1318 (1980); and provides that under certain circumstances, in which a tenant fails to comply with his or her rental obligations under § 47a-ll, the landlord is required to deliver to the tenant a written notice “specifying the acts or omissions constituting the breach” and to give the tenant thirty days to abate the violation or risk the termination of the tenancy. This notice provision has been interpreted to be separate from and preliminary to the maintenance of a summary process action pursuant to § 47a-23. See Marrinan v. Hamer, 5 Conn. App. 101, 104, 497 A.2d 67 (1985); Kapa Associates v. Flores, 35 Conn. Sup. 274, 278, 408 A.2d 22 (1979).

The trial court’s reliance on § 47a-15 in a case involving a summary process action to regain possession of a mobile home lot, and one involving nonpayment of rent, was misplaced. First, § 47a-15 is inapplicable to proceedings initiated under § 21-80. Section § 21-80 (b) (4) provides that unless otherwise specified, “proceedings under this chapter shall be prescribed under Chapter 832,” the general summary process chapter. General Statutes § 47a-15 is located in chapter 830 of the General Statutes and, therefore, does not apply to proceedings involving mobile home parks. Furthermore, even if we were to assume that § 47a-15 was applicable, the plain language of this section exempts a landlord from compliance with its notice provisions in cases where the breach of the rental agreement is based on a tenant’s nonpayment of rent.

Second, § 21-80 includes a notice provision similar to that prescribed by § 47a-15 and, like § 47a-15, does not apply where the termination of lease is based on the tenant’s failure to pay rent. That proposition is supported by the plain language of § 21-80 (b) (2), which states that a landlord “may not maintain a summary process action under subparagraph (B), (C) or (D) of subdivision (1) of this subsection prior to delivering a written notice to the resident specifying the acts or omissions constituting the action or inaction complained of and allowing the resident twenty-one days to remedy such complaint.” That section, like § 47a-15, provides a separate and preliminary notice requirement to allow a tenant in a mobile home park to abate the claimed violation. The twenty-one day notice period is required, however, only when the tenant’s noncompliance with his lease obligations is based on one of the subdivisions enumerated in § 21-80 (b) (2), including subparagraphs (B), (C) or (D). The reason of nonpayment of rent, listed as subparagraph (A), is specifically excluded from the preliminary notice requirements of § 21-80 (b) (2).

We conclude that under § 21-80, when a landlord seeks to terminate a tenancy for nonpayment of rent, only the notice requirements set forth in § 21-80 (b) (3) (B) are applicable. Although we recognize that the provisions of § 21-80 (b) (3) (B) were designed to afford greater protection to mobile manufactured home owners who rent lots than other tenants, the law does not require a preliminary and distinct thirty day written notice pursuant to §21-80 (b)(3) (B).

There is error, the judgment is set aside and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       General Statutes § 21-80 provides in pertinent part: “grounds for summary PROCESS OR TERMINATION OF RENTAL AGREEMENT. PROCEDURE FOR SUMMARY PROCESS ACTION OR TERMINATION OF RENTAL AGREEMENT. RENT increase, (a) An action for summary process may be maintained by the owner of a mobile manufactured home park against a mobile manufactured home resident, who rents his mobile manufactured home from such owner, for the following reasons which shall be in addition to other reasons allowed under chapter 832 and except as otherwise specified, proceedings under this section shall be as prescribed in said chapter 832:
      “(1) A conviction of the resident of a violation of a federal or state law or local ordinance which the court finds to be detrimental to the health, safety and welfare of other residents in the park but no notice to quit possession shall be required;
      “(2) The continued violation of any reasonable rule established by the owner, provided a copy of such rule has been delivered by the owner to the resident prior to entering into a rental agreement and a copy of such rule has been posted in a conspicuous place in the park and, provided further the resident receives written notice of the specific rule or rules being violated at least thirty days before the time specified in the notice for the resident to quit possession of the mobile manufactured home or occupancy of the space or lot; or
      “(3) A change in use of the land on which such mobile manufactured home is located, provided all the residents affected are given written notice at least three hundred sixty-five days before the time specified in the notice for the resident to quit possession of the mobile manufactured home or occupancy of the lot.
      “(b) (1) Notwithstanding the provisions of section 47a-23, an owner may terminate a rental agreement or maintain a summary process action against a resident who owns his mobile manufactured home only for one or more of the following reasons:
      “(A) Nonpayment of rent, utility charges or reasonable incidental services charges;
      “(B) Material noncompliance by the resident with any statute or regulation materially affecting the health and safety of other residents or materially affecting the physical condition of the park;
      “(C) Material noncompliance by the resident with the rental agreement or with rules or regulations adopted under section 21-70;
      “(D) Failure by the resident to agree to a proposed rent increase, provided the owner has complied with all provisions of subdivision (5) of this subsection; or
      “(E) A change in the use of the land on which such mobile manufactured home is located provided all of the affected residents receive written notice at least three hundred sixty-five days before the time specified in the notice for the resident to quit possession of the mobile manufactured home or occupancy of the lot.
      “(2) An owner may not maintain a summary process action under sub-paragraph (B), (C) or (D) of subdivision (1) of this subsection prior to delivering a written notice to the resident specifying the acts or omissions constituting the action or inaction complained of and allowing the resident twenty-one days in which to remedy such complaint.
      “(3) Notwithstanding the provisions of section 47a-23, termination of any tenancy in a mobile manufactured home park shall be effective only if made in the following manner:
      “(A) By the resident giving at least thirty days’ notice to the owner;
      “(B) By the owner giving the resident at least sixty days’ written notice, which shall state the reason or reasons for such termination, except that, when termination is based upon subparagraph (A) of subdivision (1) of this subsection, the owner need give the resident only thirty days’ written notice, which notice shall state the total arrearage due provided, the owner shall not maintain or proceed with a summary process action against a resident who tenders the total arrearage due to the owner within such thirty days and who has not so tendered an arrearage under this subparagraph during the preceding twelve months.
      “(4) Except as otherwise specified, proceedings under this section shall be as prescribed by chapter 832.”

       The defendant conceded during oral argument that she tendered the arrearage at least four months after the thirty day grace period had expired.

       “[General Statutes] Sec. 47a-15. noncompliance by tenant, landlord’s remedies. Except in the ease in which the landlord elects to proceed under sections 47a-23 to 47a-23b, inclusive, to evict based on nonpayment of rent or based on conduct by the tenant which constitutes a serious nuisance, if there is a material noncompliance with section 47a-ll which materially affects the health and safety of the other tenants or materially affects the physical condition of the premises, or if there is a material noncompliance by the tenant with the rental agreement or a material noncompliance with the rules and regulations adopted in accordance with section 47a-9, the landlord may deliver a written notice to the tenant specifying the acts or omissions constituting the breach and that the rental agreement shall terminate upon a date not less than thirty days after receipt of the notice. If such breach can be remedied by repair by the tenant or payment of damages by the tenant to the landlord, and such breach is not so remedied within twenty-one days the rental agreement shall terminate except that (1) if the breach is remediable by repairs or the payment of damages and the tenant adequately remedies the breach within such twenty-one-day period, the rental agreement shall not terminate; or (2) if substantially the same act or omission for which notice was given recurs within six months, the landlord may terminate the rental agreement in accordance with the provisions of sections 47a-23 to 47a-23b, inclusive. For the purposes of this section, ‘serious nuisance’ means (A) inflicting bodily harm upon another tenant or the landlord or threatening to inflict such harm with the present ability to effect the harm and under circumstances which would lead a reasonable person to believe that such threat will be carried out, (B) substantial and wilful destruction of part of the dwelling unit or premises, (C) conduct which presents an immediate and serious danger to the safety of other tenants or the landlord, or (D) using the premises for prostitution or the illegal sale of drugs.”