author: SPEAR, J.

text:
    TOWN OF HADDAM ET AL. v. NANCY L. LAPOINTE
    (14637)
    O’Connell, Heiman and Spear, Js.
    Argued April 24
    officially released August 20, 1996

      William Howard, with whom was Eric T. Kaplan, for the appellants (plaintiffs).

      John A. Reed, with whom was Wesley W. Horton, for the appellee (defendant).

      Richard Blumenthal, attorney general, and Richard J. Lynch and Jane D. Comerford, assistant attorneys general, filed a brief for the commissioner of public health as amicus curiae.
   SPEAR, J.

The plaintiffs sought injunctive and other relief claiming that the defendant converted a summer cottage to a year-round residence without meeting the requirements of the public health code. Regs., Conn. State Agencies § 19-13-B100. The trial court rendered judgment for the defendant and the plaintiffs appeal, asserting that the trial court improperly (1) required the plaintiffs to prove that the defendant’s septic system violated the public health code even though the defendant failed to heed the plaintiffs’ notice of the health code violation and failed to exhaust her administrative remedies with respect to that notice, (2) found that § 19-13-B100 of the Regulations of Connecticut State Agencies was unconstitutionally vague, and (3) found that “the [plaintiff town] is using the health code to enforce its determination that it wishes to limit winterization of seasonal homes without promulgating regulations and standards.” We agree with the plaintiffs’ first claim and reverse the judgment of the trial court.

The record discloses the following relevant facts and procedural history. The defendant is the fee owner of property located at 78 West Shore Drive in the town of Haddam. She purchased the property on December 18, 1990, by warranty deed. On March 24,1992, the plaintiff director of health sent the defendant a notice of violation stating that she was in violation of § 19-13-B100 of the public health code. The notice clearly stated that a person aggrieved by the director of health may appeal the order by telephoning the office of the commissioner of health services (now the commissioner of public health and addiction services) within forty-eight hours, but the telephone call must be followed by a letter of appeal within seven days pursuant to § 19-2a-34 of the Regulations of Connecticut State Agencies. The defendant indicated her intent to appeal the order by telephoning the commissioner within the forty-eight hour period, but failed to file a letter of appeal within seven days. Consequently, her administrative appeal was dismissed on April 14, 1992.

The plaintiffs thereafter commenced an action in Superior Court seeking, inter alia, temporary and permanent injunctive relief requiring the defendant to cease and desist from using the subsurface sewage disposal system on a year-round basis. After conducting an evidentiary hearing, the trial court denied the plaintiffs’ request for a permanent injunction. This appeal followed.

The plaintiffs first contend that the trial court improperly required the plaintiffs to prove a violation of the public health code even though the defendant had failed to exhaust her administrative remedies. We agree.

A director of health has the authority to examine and cause to be abated nuisances and sources of filth injurious to the public health pursuant to General Statutes § 19a-206. If a party chooses to challenge an order issued by the director of health, the party must appeal to the commissioner of public health and addiction services pursuant to § 19a-2a-34 of the state regulations. A party aggrieved by the agency’s decision may then appeal to the Superior Court. The judicial review of an administrative agency’s actions is governed by General Statutes § 4-183, the Uniform Administrative Procedures Act. Where a party appeals an agency’s decision, a reviewing court may grant relief only where the decision is “arbitrary, illegal or not reasonably supported by the evidence.” (Internal quotation marks omitted.) Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 718, 563 A.2d 1339 (1989). A showing that another decision maker might have reached a different conclusion is not sufficient to satisfy this burden. Newtown v. Keeney, 234 Conn. 312, 319, 661 A.2d 589 (1995). If an order to remove or abate is not complied with, § 19a-206 (b) provides that the director of health “may institute and maintain a civil action for injunctive relief in any court of competent jurisdiction . . . and such court shall have the power to grant such relief upon notice and hearing . . . .”

It is well established that a party must exhaust all administrative remedies before that party may ask a court to rule on the very issues that the administrative process was meant to test. Pet v. Dept. of Health Services, 207 Conn. 346, 351-52, 542 A.2d 672 (1988); see also Greater Bridgeport Transit Districts. Local Union 1336, 211 Conn. 436, 438, 559 A.2d 1113 (1989). The exhaustion doctrine “reflects the legislative intent that such issues be handled in the first instance by local administrative officials in order to provide aggrieved persons with full and adequate administrative relief, and to give the reviewing court the benefit of the local board’s judgment.” Greenwich v. Kristoff 180 Conn. 575, 578, 430 A.2d 1294 (1980). It also “relieves courts of the burden of prematurely deciding questions that, entrusted to an agency, may receive a satisfactory administrative disposition and avoid the need for judicial review.” Owner-Operators Independent Drivers Assn. of America v. State, 209 Conn. 679, 692, 553 A.2d 1104 (1989). “ ‘[Fjrequent and deliberate flouting of administrative processes could weaken the effectiveness of an agency by encouraging people to ignore its procedures.’ ” Cannata v. Dept. of Environmental Protection, 215 Conn. 616, 625, 577 A.2d 1017 (1990), quoting McKart v. United States, 395 U.S. 185, 194-95, 89 S. Ct. 1657, 23 L. Ed. 2d 194 (1969).

It would violate the exhaustion doctrine and its policy underpinnings to allow a defendant who has failed to exhaust administrative remedies to defeat an agency’s injunction action on issues that could have been contested in the administrative process. We conclude that the plaintiffs were not required to prove a violation of the public health code.

Proof of a regulatory violation is not required if “the defendant has chosen not to attack the reasonableness of the order . . . [and] factfinding has been entrusted by the legislature to the administrative agency and an injunction is sought to enforce an administrative order in furtherance of a vital public interest.” Carothers v. Connecticut Building Wrecking Co., 19 Conn. App. 216, 222, 561 A.2d 971 (1989), citing Water Resources Commission v. Connecticut Sand & Stone Corp., 170 Conn. 27, 364 A.2d 208 (1975). In Water Resources Commission, the plaintiff water resources commission found that the defendant was polluting state waters and issued orders to abate. The defendant did not obey the orders and did not pursue an administrative appeal. The plaintiff then applied for a permanent injunction and the defendant, by way of special defense, pleaded that it was not polluting state waters. At trial, the court precluded the defendant from introducing evidence in support of its special defense. Our Supreme Court affirmed the judgment of the trial court and held that “[t]o allow the defendant to present at the hearing on the application for an injunction evidence in support of its special defenses would be contrary to the obvious intent of the General Assembly as expressed in the statute providing for judicial review after administrative fact finding and would render the administrative process meaningless.” Water Resources Commission v. Connecticut Sand & Stone Corp., supra, 32.

Although this case was not brought pursuant to the environmental protection statutes, the Water Resources Commission rationale is applicable to this case. A defendant who circumvents the administrative appeal process should not be permitted to force the agency to prove in Superior Court those matters that the administrative process is designed to handle. To allow the defendant to do so would mean that a person who ignores the available administrative remedies could have the Superior Court act as an administrative fact finder in the first instance, whereas a person who exhausts the administrative remedies, to no avail, would be entitled in the Superior Court to only a deferential record review of the agency’s actions.

We are not persuaded that the trial court was required to issue an injunction on a showing that the defendant failed to exhaust her administrative remedies. The issuance of a mandatory injunction on a showing of an unheeded and unappealed order is reserved for “ ‘the exceptional case.’ ” Water Resources Commission v. Connecticut Sand & Stone Corp., supra, 170 Conn. 33. Because the record before us does not present such exceptional circumstances, the trial court remains vested with broad discretion. Such retention of discretion is supported by the reasoning of similar cases.

For example, where a party seeks an injunction to enjoin the violation of a zoning law, a trial court is not required to issue an injunction even where the plaintiff successfully proves a violation. Rather, our Supreme Court has held that “[t]he grant of jurisdiction to ensure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances, and a [trial judge] ... is not mechanically obligated to grant an injunction for every violation of law.”(Internal quotation marks omitted.) Conservation Commission v. Price, 193 Conn. 414, 430, 479 A.2d 187 (1984); see also Gelinas v. West Hartford, 225 Conn 575, 626 A.2d 259 (1993). “[T]he granting of injunctive relief . . . must be compatible with the equities of the case [and] rests within the trial court’s sound discretion.” Johnson v. Murzyn, 1 Conn. App. 176, 183, 469 A.2d 1227, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984). “Those equities should take into account the gravity and willfulness of the violation, as well as the potential harm . . . .’’Id. Failure to exhaust administrative remedies is one factor the trial court may consider in balancing the equities. Id. On remand, the trial court should balance the equities in determining whether to grant the requested injunctive relief.

The defendant asserts that the circumstances of this case fall within an exception to the exhaustion doctrine because she challenged § 19-13-B100 of the public health code as being unconstitutionally vague. We disagree.

While there are recognized exceptions to the exhaustion doctrine, “we have recognized such exceptions only infrequently and only for narrowly defined purposes.” LaCroix v. Board of Education, 199 Conn. 70, 79, 505 A.2d 1233 (1986). One such exception “involves a challenge to the constitutionality of the statute or regulation under which an agency operates, rather than to the actions of the board or agency.” Payne v. Fairfield Hills Hospital, 215 Conn. 675, 680, 578 A.2d 1025 (1990). “[T]he mere allegation of a constitutional violation will not necessarily excuse a [party’s] failure to exhaust available administrative remedies . . . .’’Id.

Section 4-176 (a) of the General Statutes provides that “[a]ny person may petition an agency . . . for a declaratory ruling as to the validity of any regulation . . . The exhaustion doctrine requires that “[a] challenge to a regulation . . . should begin with a petition to the agency itself.” Commission on Hospitals & Health Care v. Stamford Hospital, 208 Conn. 663, 672, 546 A.2d 257 (1988). In this case, the defendant could have filed a petition for a declaratory ruling pursuant to § 4-176 with the department of public health and addiction services, claiming that § 19-13-B100 was unconstitutionally vague. Because the defendant could have appealed any adverse declaratory ruling to the Superior Court pursuant to § 4-183, she was required to seek such a ruling before seeking redress in court. Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 558, 630 A.2d 1304 (1993).

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The town of Haddam and John Korab, the town’s director of health, are the plaintiffs in this action.

       Regs., Conn. State Agencies § 19-13-B100 provides in pertinent part: “If public sewers are not available, no building shall be converted so as to enable its use year round nor shall its use be changed unless after the said conversion or use change the lot satisfies all the current requirements of the Public Health Code for the installation of subsurface sewage disposal facilities except for the one hundred percent reserve area”

       Our resolution of the plaintiffs’ first claim renders the resolution of the remaining claims unnecessary.

       The notice stated: “Your are hereby notified of the existence of a Public Health law violation upon the premises owned by you or under your charge, located at 78 West Shore Drive, Map 72A-1 Lot 88, in the town of Haddam, and as described as follows:
      “The existing structure on the above property has been modified in such a manner which enables it to be used year round without meeting the Public Health Code of the State of Connecticut. Haddam Town Office Building records indicate the structure status as less than year round use.
      “LAW
      “VIOLATIONS: Public Health Code Regulation Section 19-13-B100 Building Conversion.
      “AUTHORITY: Connecticut General Statutes Sections 19a-206; 19a-207.
      “PENALTY: Connecticut General Statutes Sections 19a-36; 19a-206; 19-104; 19a-230.
      “APPEAL: Connecticut General Statutes Section(s) 19a-229 - ‘Any person aggrieved by an order issued by a town, city, or borough Director of Health may, within forty-eight hours after the making of such order, appeal to the Commissioner of Health Services [now commisioner of public health and addiction services], who shall thereupon immediately notify the authority from whose order the appeal was taken, and examine the merits of such case, and may vacate, modify or affirm such order.’ (NOTE: The appeal to the Commissioner must be delivered by hand or by mail to the office of the Commissioner within the forty-eight hours or a telephone call must be made to the office of the Commissioner within the forty-eight hours with notification of the intent to appeal, followed up by a letter of appeal).
      “It is hereby ordered that the said violation be removed, abated or otherwise corrected on or before the 10th day of April 1992.”
      The notice was signed by John H. Korab, director of health for the town of Haddam.

       See footnote 2.

       Regs., Conn. State Agencies § 19-2a-34 provides: “(a) Any person aggrieved by an order issued by a local director of health may appeal said order to the commissioner. “(b) The notice of the appeal must be received by the commissioner within forty-eight (48) hours of the date of issuance of the order. If the forty-eight (48) hour period expires on a day which is not a normal business day of the department, the period of appeal shall be extended through the close of business of the first regular business day following.
      “(c) Notice of appeal shall state: (1) the name of the person claiming to be aggrieved; (2) the name of the issuing authority; (3) the nature of the claimed aggrievement; (4) the order being appealed; and (5) the grounds for appeal.
      "(d) Telephonic communication of a notice of appeal to the office of the commissioner shall be satisfactory as an initial notice of appeal provided written confirmation from the person claiming to be aggrieved is received by the department within seven days of the oral notice.
      “(e) The hearing on the appeal shall be a de novo proceeding conducted in accordance with rules of practice of the department.
      “(f) Any order issued by a local director of health shall include notice of the right to appeal and shall have the rules of practice attached.”

       General Statutes § 19a-206 provides in pertinent part: “(a) Town, city and borough directors of health or their authorized agents shall, within their respective jurisdictions, examine all nuisances and sources of filth injurious to the public health, cause such nuisances to be abated and cause to be removed all filth which in their judgment may endanger the health of the inhabitants. Any owner or occupant of any property who maintains such property, whether real or personal, or any part thereof, in a manner which violates the provisions of the public health code enacted pursuant to the authority of sections 19a-36 and 19a-37 shall be deemed to be maintaining a nuisance or source of filth injurious to the public health. Any local director of health or his authorized agent or a sanitarian authorized by such director may enter all places within his jurisdiction where there is just cause to suspect any nuisance or source of filth exists, and abate or cause to be abated such nuisance and remove or cause to be removed such filth.
      “(b) When any such nuisance or source of filth is found on private property, such director of health shall order the owner or occupant of such property, or both, to remove or abate the same within such time as the director directs. If such order is not complied with, within the time fixed by such director: (1) Such director, or any official of such town, city or borough authorized to institute actions on behalf of such town, city or borough, may institute and maintain a civil action for injunctive relief in any court of competent jurisdiction to require the abatement of such nuisance, the removal of such filth and the restraining and prohibiting of acts which caused such nuisance or filth, and such court shall have power to grant such injunctive relief upon notice and hearing; (2) the owner or occupant of such property, or both, shall be subject to a civil penalty of two hundred fifty dollars per day for each day such nuisance is maintained or such filth allowed to remain after the time fixed by the director in his order has expired, except that the owner or occupant of such property or any pari, thereof on which a public eating place is conducted shall not be subject to the provisions of this subdivision, but shall be subject to the provisions of subdivision (3). Such civil penalty may be collected in a civil proceeding by the director of health or any official of such town, city or borough authorized to institute civil actions and shall be payable to the treasurer of such city, town or borough, and (3) the owner or occupant of such property, or both, shall be subject to the provisions of sections 19a-36, 19a-220 and 19a-230. . . .”

       See footnote 6.

       General Statutes § 4-183 (a) provides: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal.”


source: Caselaw Access Project

author: LAVERY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MICHAEL PATRICK
    (15213)
    Lavery, Landau and Spallone, Js.

      Argued June 3
    officially released August 20, 1996

      William W. Fisher, Jr., for the appellant (defendant).

      Michael L. Regan, assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (state).
   LAVERY, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-278 (b), possession of a controlled substance within 1500 feet of real property comprising a public elementary school in violation of General Statutes (Rev. to 1993) § 21a-278a (b), possession of a cannabis-type substance in violation of General Statutes § 21a-279 (c),* * and possession of drug paraphernalia in a drug factory situation in violation of General Statutes § 21a-277 (c). The defendant claims that (1) his conviction constituted a violation of his right not to be placed in double jeopardy, (2) General Statutes (Rev. to 1993) § 21a-278a (b) is unconstitutionally vague as applied to him, and (3) he was not afforded effective assistance of counsel as guaranteed by the United States and Connecticut constitutions. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 27, 1994, members of the New London police department and the statewide narcotics task force executed a search warrant for the defendant’s person, his two-story residence at 272 Colman Street, and several of his motor vehicles. At the residence, the police found the defendant, his wife, and his daughter.

The defendant was advised of his rights and promptly waived them. The defendant subsequently informed the police of the location of the drugs in his residence. The police searched the first floor of the defendant’s residence and found marijuana, money, and a key. The police used this key to open a locked room on the second floor of the defendant’s residence. In this locked room the police found cocaine, a scale, several plastic bags, and an empty bottle of inositol. The defendant’s residence is located approximately 1115 feet from Edgerton Elementary School.

I

The defendant first claims that he was deprived of his right not to be put in double jeopardy because he was convicted and sentenced to consecutive sentences for possession of a narcotic substance with intent to sell and possession of a controlled substance within 1500 feet of real property comprising a public elementary school. The defendant claims that his unpreserved claim is entitled to appellate review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

A defendant can prevail on an unpreserved claim only if “all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id., 239-40. The defendant’s claim meets the first two prongs of Golding and is, therefore, subject to review. State v. Lemoine, 39 Conn. App. 657, 663 n.8, 666 A.2d 440 (1995). We conclude, however, that the defendant’s claim fails to satisfy the third prong of Golding.

“The double jeopardy clause of the fifth amendment to the United States constitution provides: ‘[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.’ The double jeopardy clause is applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct 2056, 23 L. Ed. 2d 707 (1969); State v. Lonergan, 213 Conn. 74, 78, 566 A.2d 677 (1989), cert. denied, 469 U.S. 905, 110 S. Ct 2586, 110 L. Ed. 2d 267 (1990). This constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense in a single trial. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); State v. Anderson, 212 Conn. 31, 35, 561 A.2d 897 (1989); State v. John, 210 Conn. 652, 693, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989).” State v. Greco, 216 Conn. 282, 289-90, 579 A.2d 84 (1990).

Although the Connecticut constitution does not include a specific double jeopardy provision, the due process guarantee of article first, § 9, of our state constitution has been held to encompass protection against double jeopardy. Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962); see also State v. Anderson, 211 Conn. 18, 25 n.8, 557 A.2d 917 (1989). Nevertheless, we have not held that our state constitution affords any greater due process rights than those afforded under the federal constitution’s double jeopardy clause. State v. Laws, 37 Conn. App. 276, 294-95, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995).

The defendant claims that his convictions and sentences for violation of General Statutes §§ 21a-278 and 21a-278a (b) have punished him twice for the same offense. “Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met. ...” (Citation omitted; internal quotation marks omitted.) State v. Greco, supra, 216 Conn. 290-291.

In the present case, the state concedes, and we agree, that the convictions at issue arise out of the same transaction. The state concedes the first prong of this test is met because “it is not possible to commit the greater offense, in the manner described in the information or bill of particular’s, without having first committed the lesser.” State v. Morin, 180 Conn. 599, 601, 430 A.2d 1297 (1980). “In deciding whether the crimes arose out of the same act or transaction, we analyze the language of the information.” State v. Nita, 27 Conn. App. 103, 113, 604 A.2d 1322, cert. denied, 222 Conn. 903, 606 A.2d 1329, cert. denied, 506 U.S. 844, 113 S. Ct. 133, 121 L. Ed. 2d 86 (1992). This court has also held that any ambiguity in the information must be construed in the defendant’s favor. State v. Glover, 40 Conn. App. 387, 391, 671 A.2d 384 (1996).

The defendant was charged with violating §§ 2la-278 (b) and 21a-278a (b) in counts one and two of an information dated September 27, 1994. Our review of the substitute information leads us to conclude that the charges arise out of the same transaction.

The defendant could not have been guilty of violating § 21a-278a (b), possession with intent to sell within 1500 feet of a school, without first committing the crime of possession with intent to sell as defined by § 21a-278 (b). The state also concedes that § 21a-278 (b) is alesser included offense of § 21a-278a (b). Under a traditional Blockburger analysis, both of the crimes would be considered the “same offense,” thereby meeting the second prong of the test. Our double jeopardy analysis, however, does not end there.

“[T]he Blockburger test is not a conclusive presumption of law; Garrett v. United States, 471 U.S. 773, 779, 105 S. Ct. 2407, 85 L. Ed 2d 764 (1985); but is a rule of statutory construction and should not be controlling where there is a clear indication of contrary legislative intent. Missouri v. Hunter, 459 U.S. 359, 367, 103 S. Ct 673, 74 L. Ed. 2d 535 (1983). As a rule of statutory construction, the Blockburger test ‘does no more than create a rebuttable presumption.’ State v. Delgado, 19 Conn. App. 245, 251-52, 562 A.2d 539 (1989). The determinative question is whether the legislature intended the offenses to be separate. State v. Smart, 37 Conn. App. 360, 365, 656 A.2d 677 (1995).” State v. Braswell, 42 Conn. App. 264, 269, 679 A.2d 407 (1996).

We find adequate legislative intent that § 21a-278a (b) authorizes cumulative punishment that can be imposed in addition to a defendant’s sentence for violation of § 21a-278 (b). We are aware that “ ‘[t]he Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history.’ ” State v. Greco, supra, 216 Conn. 292. Furthermore, “the language, structure and legislative history of a statute can provide evidence of this intent.” Id., 293.

First, the language of § 21a-278a (b) manifests a clear legislative intent to provide an enhanced punishment for violating General Statutes §§ 21a-277 or 21a-278 within 1500 feet of a school. Section 21a-278a (b) specilically provides that a person who violates this statute “shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a,-277 or 2la-278.” (Emphasis added.) Section 21a-278a (b) on its face demonstrates the legislative intent to impose the added sanction of three years imprisonment for committing the same offense as proscribed by § 21a-278 (b) within 1500 feet of a school.

Second, legislative intent to impose cumulative punishments may also be seen in the comments of legislators when enacting § 21a-278a (b). During the discussion in the General Assembly concerning the passage of Public Acts 1987, No. 87-373, Representative Eugene A. Migliaro, Jr., stated: “There’s two factors here that people have been kicking around. One is the 5 year sentence plus the additional 2 year sentence if you’re within the thousand feet [of a school]. ... I think adding the additional two years just for being in the area makes a lot of sense. It could be a deterrent. I think an individual knows, and I think they’re going to take a second look, 5 years is plenty and 2 more would be a little bit too much. So I think it’s a good amendment. . . . And [if] I were the one pushing drugs, I would look at the extra 2 years and stay out of the area and I think that’s the intent of the bill.” 30 H. R. Proc., Pt. 24, 1987 Sess., pp. 8727-28. Representative William A. Kiner’s comments concerning the passage of Public Acts 1987, No. 87-373, further indicate that the penalty for violating § 21a-278a (b) should be imposed in addition to the punishment provided for by § 21a-278 (b). Representative Kiner stated: “[W]hat it does is to say that anyone who sells to a minor, anyone who sells within 1000 feet of a school, and anyone using a minor in trafficking would now be guilty of a crime and as such we would be adding on two years to an already five year minimum sentence.” 30 H. R. Proc., supra, p. 8656. These comments made by legislators when enacting § 21a-278a (b) demonstrate the legislature’s intent to enhance the penalties provided for in § 2la-278 (b).

The United States Supreme Court has held that “where ... a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under Blockburger, a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.” Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983). We conclude that the legislature authorized cumulative punishment for violations of §§ 2 la-278 (b) and 21a-278a (b), and, therefore, the defendant’s conviction of both did not violate his double jeopardy rights. See State v. Braswell, supra, 42 Conn. App. 264.

II

The defendant’s second claim is that § 21a-278a (b) is unconstitutionally vague. While this claim was neither raised nor preserved at trial, the state concedes that this record is adequate to satisfy the first two prongs of State v. Golding, supra, 213 Conn. 239-40. Furthermore, in State v. Shriver, 207 Conn. 456, 542 A.2d 686 (1988), our Supreme Court has held that “a claim of unconstitutional vagueness falls within the parameters of State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973), and therefore warrants appellate scrutiny because it implicates the fundamental due process right to fair warning . . . .” State v. Shriver, supra, 459.

It is well settled that “the void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless enforcement.” Id., 459-60. The defendant further contends that “[l]aws must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly.” State v. Cavallo, 200 Conn. 664, 667, 513 A.2d 646 (1986).

The purpose of § 21a-278a (b) is present on its face and in its legislative history. This statute was designed to protect children and schools from the danger that accompanies illegal drugs and their purveyors. We hold that a person of ordinary intelligence should know that possession of cocaine with intent to sell is illegal in its own right. Therefore, a person of ordinary intelligence should also know that this prohibited activity would also be illegal within 1500 feet of a school.

The defendant also contends that § 21a-278a (b) does not put one on notice as to the boundaries of the real property constituting a school as defined by this statute. We find no merit to this argument because of our Supreme Court’s recent holding in State v. Denby, 235 Conn. 477, 668 A.2d 682 (1995). The court concluded that “the plain language of § 21a-278a (b) requires as an element of the offense an intent to sell or dispense the narcotics at a location that is within 1000 feet of a school. The state is not, however, required to prove that the defendant knew that this location was within the zone.” Id., 482. As a result, the defendant did not have to know that he was within 1500 feet of a school to violate § 21a-278a (b). We conclude that § 21a-278a (b) is not unconstitutionally vague as applied to the defendant.

Ill

The defendant’s third claim is that he was deprived of his constitutional right to effective assistance of counsel. For a defendant to prevail on an ineffective assistance of counsel claim they must successfully meet the two-prong test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct 2052, 80 L. Ed. 2d 674 (1984); see Bunkley v. Commissioner of Correction, 222 Conn. 444, 610 A.2d 598 (1992). The Strickland test requires that the defendant “must establish not only that his counsel’s performance was deficient, but that as a result thereof he suffered actual prejudice, namely, ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Bunkley v. Commissioner of Correction, supra, 445.

Our Supreme Court has consistently concluded that the preferred vehicle for an ineffective assistance of counsel claim is either a petition for writ of habeas corpus or a petition for a new trial, not a direct appeal. States. Mason, 186 Conn. 574, 579, 442 A.2d 1335 (1982); State v. Just, 185 Conn. 339, 370, 441 A.2d 98 (1981). “Absent the evidentiary hearing available in the collateral action, review in this court of the ineffective assistance claim is at best difficult and sometimes impossible. The evidentiary hearing provides the trial court with the evidence that is often necessary to evaluate the competency of the defense and the harmfulness of any incompetency.” State v. Mason, supra, 579.

In State v. Henderson, 37 Conn. App. 733, 749, 658 A.2d 585, cert. denied. 234 Conn. 912, 660 A.2d 355 (1995), this court stated: “ ‘[W]hen the claim of inadequate counsel is joined with other substantive and procedural claims of error, it is often difficult to make a judgment about the extent to which inadequate counsel has implicated the outcome of the criminal conviction. For that reason, it will ordinarily be necessary to await exhaustion of the direct appeal before the claim of ineffective assistance can be pursued on a petition for [a writ of] habeas corpus.’ ” We conclude, therefore, that a petition for habeas corpus would be the proper vehicle for this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in pertinent part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. ...”

       General Statutes (Rev. to 1993) § 21a-278a provides in relevant part: “Penalty for illegal manufacture, distribution, sale, prescription or administration involving minors. . . . (b) Any person who violates section 21a-277 or 21a-278, and who is not, at the time of such action, a drug-dependent person, by manufacturing, distributing, selling, prescribing, dispensing, compounding, transporting with the intent to sell or dispense, possessing with the intent to sell or dispense, offering, giving or administering to another person any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school . . . shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. To constitute a violation of this subsection, an act of transporting or possessing a controlled substance shall be with intent to sell or dispense in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school . . . .”

       General Statutes § 21a-279 (c) provides: “Any person who possesses or has under his control any quantity of any controlled substance other than a narcotic substance, or a hallucinogenic substance other than marijuana or who possesses or has under his control less than four ounces of a cannabis-type substance, except as authorized in this chapter, for a first offense, may be fined not more than one thousand dollars or be imprisoned not more than one year, or be both fined and imprisoned; and for a subsequent offense, may be fined not more than three thousand dollars or be imprisoned not more than five years, or be both fined and imprisoned.”

       General Statutes § 21a-277 (c) provides: “No person shall knowingly possess drug paraphernalia in a drug factory situation as defined by subdivision (20) of section 21a-240 for the unlawful mixing, compounding or otherwise preparing any controlled substance for purposes of violation of this chapter.”

       Inositol is a chemical frequently used by drug dealers to dilute cocaine.

       In a substitute information filed on June 8, 1995, the defendant was charged with the following: ‘’Count One: Michael L. Regan, Asst. State’s Attorney for the Judicial District of New London accuses Michael A. Patrick of272 Colman Street, New London CT of Possession of a Narcotic Substance with intent to sell and charges that at the City of New London at 272 Colman Street on the 27th day of September 1994, at approximately 9:00 a.m. the said Michael Patrick did possess cocaine with intent to sell in violation of Section 21a-278 (b) of the Connecticut General Statutes. Count Two: And said Attorney further accuses the said Michael A. Patrick of Possession of a Controlled Substance With Intent to Sell Within One Thousand Five Hundred Feet of the Real Property Comprising a Public Elementary School and charges that at the City of New London at 272 Colman Street on the 27th day of September 1994 at approximately 9:00 a.m. the said Michael A. Patrick, while within one thousand five hundred feet of the real property of Edgerton School, did possess cocaine with intent to sell in violation of Section 21a-278a (b) of said statutes.”

         Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). The traditional approach to analyzing whether two offenses constitute the same offense was set forth in Blockburger as follows: “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires the proof of a fact which the other does not.” Id. 304.

       In 1989, the state legislature enacted Public Acts 1989, No. 89-256, § 1, which Increased the penalty from two to three years imprisonment for violating General Statutes § 21a-278a (b). In 1992, the state legislature enacted Public Acts 1992, No. 92-82, which substituted “one thousand five hundred feet” for “one thousand feet” in General Statutes § 21a-278a (b).

       This was before the 1992 amendment to § 21a-278a (b), which changed the distance from 1000 feet to 1500 feet.


author: SCHALLER, J.

text:
    JAY WALSHON v. CAREN WALSHON
    (14933)
    Schaller, Spear and Hennessy, ,Js.

      Argued May 31
    officially released August 20, 1996

      Susan M. Cormier, with whom were John Reed and, on the brief, Kenneth J. Ian and Kenneth J. Barschi, legal interns, for the appellant (defendant).

      Gaetano Ferro, with whom was Livia D. Bamdollar, for the appellee (plaintiff).
   SCHALLER, J.

The defendant appeals from the judgment of the trial court dismissing her postjudgment motion for modification of custody. The defendant claims that the trial court improperly dismissed her motion for modification of custody for failure to make out a prima facie case. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of this appeal. In November, 1991, the marriage of Jay Walshon and Caren Walshon was dissolved. In the course of the dissolution action, the Walshons agreed to joint legal custody of their children, with primary physical custody to be with the plaintiff. That agreement became part of the supplemental judgment.

In August, 1993, the defendant moved to modify the original custody order. In June, 1995, a three day hearing was held addressing the defendant’s motion. At the hearing, the defendant testified and presented four witnesses in an attempt to demonstrate to the trial court that there had been a material change of circumstances that justified a modification of the existing custody arrangement. After the defendant rested her case, the plaintiff moved for judgment of dismissal pursuant to Practice Book § 302. After hearing arguments from both parties, the trial court granted the plaintiffs motion to dismiss. In its oral decision, the court stated: “I can find ... no material change of circumstances that alters the court’s finding of the best interests of the [children].”

The defendant then filed this appeal. In preparation for the appeal, the plaintiff requested that the trial court articulate the legal standard it applied when it granted the motion to dismiss. On August 3,1995, the trial court issued the following articulation: “Having taken all the evidence produced by the defendant as true, and having interpreted all such evidence in the light most favorable to her, and having drawn every reasonable inference in her favor, this court could not find a material change of circumstances which altered the court’s finding of the best interests of [the children], nor could it find that the custody order sought to be modified was not based on the best interests of the [children].”

The defendant claims that the trial court did not apply the correct legal standard in its oral decision at the time it granted the plaintiff’s motion to dismiss. She claims, specifically, that the trial court improperly assessed the credibility of witnesses and the weight of evidence. The defendant further asserts that the court’s subsequent articulation cannot cure these claimed deficiencies.

“A trial court can dismiss an action where it believes the plaintiff failed to make out a prima facie case. Practice Book § 302; Season-All Industries, Inc. v. R. J. Grosso, Inc., 213 Conn. 486, 493, 569 A.2d 32 (1990). ‘[W]hen the evidence produced by the plaintiff, if fully believed, would not permit the trier in reason to find the essential issues on the complaint in favor of the plaintiff,’ dismissal under Practice Book § 302 is appropriate. Hinchliffe v. American Motors Corp., 184 Conn. 607, 609, 440 A.2d 810 (1981); Gulycz v. Stop & Shop Co., 29 Conn. App. 519, 523, 615 A.2d 1087 (1992). A § 302 motion is properly considered at the close of the plaintiffs evidence. Carnese v. Middleton, 27 Conn. App. 530, 539, 608 A.2d 700 (1992). A denial of a § 302 motion gives the plaintiff the opportunity to have the fact finder pass on the merits of the case. Berchtold v. Maggi, 191 Conn. 266, 271, 464 A.2d 1 (1983).

“In considering a motion under Practice Book § 302, a trial court must consider all of the plaintiffs evidence to be true. Hinchliffe v. American Motors Corp., supra, [184 Conn.] 609-10; Bolmer v. Kocet, 6 Conn. App. 595, 603, 507 A.2d 129 (1986). Further, a trial court must draw all inferences in the plaintiffs favor. Pagni v. Corneal, 13 Conn. App. 468, 470, 537 A.2d 520, cert. denied, 207 Conn. 810, 541 A.2d 1239 (1988). The limitations of a § 302 motion contrast with the trial court’s discretion in ruling on the merits of a case. Once a case is presented to the trial court for final decision, the trier is released from having to treat the plaintiffs evidence as true and can disbelieve any evidence, even if the evidence is uncontroverted. Strickland v. Vescovi, 3 Conn. App. 10, 15, 484 A.2d 460 (1984).” Discover Leasing, Inc. v. Murphy, 33 Conn. App. 303, 307-308, 635 A.2d 843 (1993).

In the present case, the defendant points to two portions of the trial court’s oral decision as support for her claim that the trial court applied an incorrect standard in ruling on the plaintiffs § 302 motion. In the first portion, the trial court stated: “I did not find her to be a credible witness that created a basis upon which I could find a material change of circumstances which alters the court’s finding of the best interests of the [children].” In the second portion, the court stated: “The overwhelming weight of the evidence, the credible evidence brought to the court does not approach the necessary weight to support the requests of the parties—of the request of the mother in her motion to modify; and the court feels compelled to grant the dismissal of that motion . . . .”

The portions of the court’s oral decision that the defendant claims were improper, standing alone, could be interpreted as indicating that the trial court applied the wrong standard. Within both of these selected portions, however, the trial court consistently expressed its underlying finding, namely, that it could not find a material change of circumstances that warranted modification of custody.

The trial court’s oral decision did not expressly state the legal standard for a § 302 motion. The court’s subsequent articulation, however, did state the correct legal standard. This articulation was a proper method of clarifying its oral decision. “ ‘An articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification.’ State v. Wilson, 199 Conn. 417, 435, 513 A.2d 620 (1986); Rostain v. Rostain, 213 Conn. 686, 694-95, 569 A.2d 1126 (1990).” Carothers v. Capozziello, 215 Conn. 82, 114, 574 A.2d 1268 (1990). “[P]roper utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision . . . .” Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1983). An articulation, however, “is not an opportunity for a trial court to substitute a new decision [or] to change the reasoning or basis of a prior decision.” Koper v. Koper, 17 Conn. App. 480, 484, 553 A.2d 1162 (1989); see Eichman v. J & J Building Co., 216 Conn. 443, 458, 582 A.2d 182 (1990).

It is well established that a motion for articulation may be used to clarify the factual or legal basis of the trial court’s ruling. Keating v. Glass Container Corp., 197 Conn. 428, 434, 497 A.2d 763 (1985). “In State v. Wilson, 199 Conn. 417, 513 A.2d 620 (1986) . . . [our Supreme Court] held that ‘an articulation presupposes ambiguity or incompleteness in the legal reasoning of the trial court in reaching its decision. An articulation may be necessary where the trial court fails completely to state any basis for its decision ... or where the basis, although stated is unclear.’ . . . Id., 434.” Maguire v. Maguire, 222 Conn. 32, 39, 608 A.2d 79 (1992).

In this case, the trial court’s articulation did not substitute a new decision or change the reasoning or basis of its prior decision. Moreover, there was nothing in the articulation that contradicted the substance of the court’s oral decision. The articulation properly clarified the legal standard that the court applied in dismissing the defendant’s motion for modification, thereby dispelling any ambiguity in its decision.

The defendant next claims that, even if the trial court applied the correct standard, its dismissal of her motion for modification of custody for failure to make a prima facie case was improper. We disagree. “On appeal of a dismissal pursuant to Practice Book § 302, we take the plaintiffs evidence as true; Higgins v. Ambrogio, 19 Conn. App. 581, 584, 562 A.2d 1154 (1989); and consider the trial court’s conclusions in light of the evidence in the record. Bershtein, Bershtein & Bershtein v. Nemeth, 221 Conn. 236, 239, 603 A.2d 389 (1992). ‘Whether the plaintiffs established a prima facie case is a question of law.’ Wordie v. Staggers, 27 Conn. App. 463, 465, 606 A.2d 734 (1992); Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 561, 447 A.2d 406 (1982). ‘We must determine whether the trial court properly determined that the plaintiff failed to provide sufficient evidence to support his prima facie case.’ Ivimey v. Watertown, 30 Conn. App. 742, 751, 622 A.2d 603, cert. denied, 226 Conn. 902, 625 A.2d 1375 (1993), citing Logan v. O’Neill, 187 Conn. 721, 728, 448 A.2d 1306 (1982).” Discover Leasing, Inc. v. Murphy, 33 Conn. App. 303, 308, 635 A.2d 843 (1993).

“[Our Supreme Court] has limited the broad discretion given the trial court to modify custody orders under General Statutes § 46b-56 by requiring that modification of a custody award be based upon either a material change of circumstances which alters the court’s finding of the best interests of the child ... or a finding that the custody order sought to be modified was not based upon the best interests of the child.” (Citations omitted.) Hall v. Hall, 186 Conn. 118, 122, 439 A.2d 447 (1982). The trial court based its oral decision and its subsequent articulation on these important considerations. Viewing the defendant’s evidence as true, and considering the trial court’s conclusions in light of the evidence in the record, we find that the trial court properly dismissed the defendant’s postjudgment motion for modification of custody.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Boole § 302 provides: “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced his evidence and rested his cause, the defendant may move for judgment of dismissal, and the court may grant such motion, if in its opinion the plaintiff has failed to malee out a prima facie case. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.”


author: PER CURIAM.

text:
    FRANK KONIKOWSKI ET AL. v. GEORGE A. L. EVERSON
    (14419)
    Foti, Heiman and Schaller, Js.
    Submitted on briefs June 7
    officially released August 20, 1996

      Brian G. Enright filed a brief for the appellant (defendant).

      Richard J. Duda and Mary Beth Duda filed a brief for the appellees (plaintiffs).
   PER CURIAM.

The defendant appeals from the judgment of the trial court rendered upon the court’s acceptance of the report of an attorney trial referee. The dispositive issue is whether the trial court improperly accepted the attorney trial referee’s report recommending an inconsistent judgment of record title and title by adverse possession.

The following facts and procedural history are relevant to our resolution of this appeal. This action arose out of a dispute over the location of a boundary post. The plaintiffs, Frank Konikowski and Lottie Konikowski, commenced this action by filing a three count complaint against the defendant. In counts one and two, the plaintiffs claimed ownership of the disputed property by record title and adverse possession. In count three, the plaintiffs alleged that the defendant trespassed on the property. By counterclaim, the defendant responded by claiming that he held record title to the disputed property. The attorney trial referee recommended judgment for the plaintiffs on counts one and two of their complaint, but for the defendant on count three. The trial court rendered judgment in accordance with the attorney trial referee’s report.

“ ‘A duty of construction is placed upon the trial court whenever a party pleads inconsistent theories of recovery. . . . Although a party may plead, in good faith, inconsistent facts and theories, a court may not award a judgment on inconsistent facts and conclusions. A judgment, read in its entirety, must admit of a consistent construction. . . . Where a party is entitled to only a single right to recover, it is the responsibility of the trial court to determine which of the inapposite sets of facts the party has proved, and then to render judgment accordingly.’ . . . [DeVita v. Esposito, 13 Conn. App. 101, 107, 535 A.2d 364, cert. denied, 207 Conn. 807, 540 A.2d 375 (1988)].

“ ‘A person who claims title by deed is claiming that he has good record title which entitles him, in an action to quiet title, to a judgment of ownership. Loewenberg v. Wallace, 147 Conn. 689, 698, 166 A.2d 150 (1960). Conversely, a person who claims title by adverse possession is claiming that although he does not have record title, his proof of possession which is adverse, open, notorious and continuous for the entire statutory period entities him, in an action to quiet title, to a judgment of ownership. Ruick v. Twarkins, 171 Conn. 149, 155, 367 A.2d 1380 (1976); Schlough v. Ruley, 1 Conn. App. 119, 120, 468 A.2d 1272 (1983).’ [DeVita v. Esposito, supra, 13 Conn. App. 106]. ‘The trial court must first determine in which party record title lies, and then, if necessary, determine whether adverse possession has divested the record owner of his title.’ Id., 108.” Marrin v. Spearow, 35 Conn. App. 398, 402, 646 A.2d 254 (1994).

In the present case, the trial court could not accept the report of the attorney trial referee because it recommended an inconsistent judgment. As a result, we must vacate the entire judgment of the court and remand the case for a new trial. Marrin v. Spearow, supra, 35 Conn. App. 403; DeVita v. Esposito, supra, 13 Conn. App. 112.

The judgment is reversed and the case is remanded for a new trial.

       The trial court, did not expressly render a final judgment on the defendant’s counterclaim alleging ownership by record title. We note, however, that the “ '[t]est of a final judgment lies, not in the nature of the ruling, but in its effect in concluding the rights of the party appealing; if his rights are concluded so that further proceedings after the ruling cannot affect them, there is a final judgment.’ ” Martin v. Martin’s News Service, 9 Conn. App. 304, 306 n.2, 518 A.2d 951 (1986), cert. denied, 202 Conn. 807, 520 A.2d 1287 (1987), quoting Howarth v. Norcott, 152 Conn. 460, 462, 208 A.2d 540 (1965).

       The plaintiffs argue that this case is similar to Bond v. Benning, 175 Conn. 308, 311, 398 A.2d 1158 (1978), in which our Supreme Court upheld a trial court’s finding of ownership by record title in a case where the trial court also concluded that even if record title had not been proven, the party held title by adverse possession. We reject the plaintiffs’ contention in the present case for the same reason that we rejected the same contention in DeVita v. Esposito, supra, 13 Conn. App. 107-108 n.6, because the trial court in the present case did not conclude, as the trial court did in Bond v. Benning, supra, 311, that the party had, in fact, proved record title.


text:
    PATRICIA SMALL v. STOP AND SHOP COMPANIES, INC.
    (14775)
    O’Connell, Hennessy and Stoughton, Js.
    Argued April 3
    officially released August 20, 1996

      Robert L. Fisher, Jr., with whom, on the brief, was Eric A. Russman, for the appellant (plaintiff).

      Elizabeth M. Cristofaro, with whom, on the brief, was Brad N. Mondschein, for the appellee (defendant).
   PER CURIAM.

The plaintiff, Patricia Small, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant. In this negligence action, the plaintiff claims that she was injured when she tripped on an unsecured mat in the defendant’s store. In its answer, the defendant denied that it was negligent and alleged by way of special defense that the plaintiffs injuries were caused by her own negligence and carelessness.

On appeal, the plaintiff claims that the trial court improperly (1) precluded her from introducing evidence on the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., (2) stated in the presence of the jury that no testimony was presented on the defendant’s alleged noncompliance with the building code, (3) refused to instruct the jury in accordance with the plaintiffs request to charge, (4) denied the plaintiffs motion to set aside the verdict and (5) displayed bias against the plaintiff.

The defendant argues that the general verdict rule precludes our review of the plaintiffs first four claims. It contends that these claims involve whether the trial court improperly affected the plaintiffs ability to prove her case-in-chief and do not implicate the defendant’s ability to prove its special defense. The defendant further asserts that the plaintiffs claim of judicial bias cannot be reviewed on appeal, absent plain error, because it was not preserved in the trial court and because the plaintiff did not move either for a mistrial or to disqualify the court. We conclude that the general verdict rule precludes our review of the plaintiffs first four claims and that the trial court did not display judicial bias constituting plain error. We, therefore, affirm the judgment of the trial court.

The “general verdict rule provides that, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party.” (Internal quotation marks omitted.) Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993). “[T]he rule relieves an appellate court from the necessity of adjudicating claims of error that may not arise from the actual source of the jury verdict that is under appellate review.” Id., 790. The general verdict rule applies “to the following scenarios: (1) denial of separate counts of a complaint; (2) denial of separate defenses pleaded as such; (3) denial of separate theories of recovery or defense pleaded in one count or defense, as the case may be; (4) denial of a complaint and pleading of a special defense; and (5) denial of a specific defense, raised under a general denial, that had been asserted as the case was tried but that should have been specially pleaded.” Id., 801.

The general verdict rule applies to this case because it falls within the fourth category—“denial of a complaint and pleading of a special defense”—and the plaintiff failed to submit interrogatories. Without interrogatories, we cannot determine whether the jury found for the defendant because it found that the defendant was not the proximate cause of the plaintiffs injury or because the plaintiff was contributorily negligent in excess of 50 percent. The rule requires that we presume the jury found for the defendant on all of the issues including the defendant’s special defense of contributory negligence. The general verdict, therefore, will not be disturbed, and the plaintiffs claims of error relating to her inability to prove her case-in-chief need not be reviewed.

We next address the plaintiffs claim that the trial court was biased against the plaintiff. It is well settled that courts will not review a claim of judicial bias on appeal unless that claim was properly presented to the trial court through a motion for disqualification or a motion for mistrial. See Knock v. Knock, 224 Conn. 776, 792, 621 A.2d 267 (1993); Gillis v. Gillis, 214 Conn. 336, 343, 572 A.2d 323 (1990); Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982). The plaintiff failed to make either motion. Absent plain error, a claim of judicial bias cannot be reviewed on appeal unless preserved in the trial court. Cameron v. Cameron, supra, 168. Plain error exists only in “ ‘truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ ” State v. Burnhannan, 34 Conn. App. 537, 541, 642 A.2d 59 (1994), quoting Spicer v. Spicer, 33 Conn. App. 152, 162, 634 A.2d 902 (1993), cert. denied, 228 Conn. 920, 636 A.2d 850 (1994). When we apply this standard to the plaintiffs unpreserved claim of judicial bias, it is clear that the trial court did not commit plain error, and, therefore, the plaintiffs claim of bias cannot be reviewed.

The judgment is affirmed.


author: HEIMAN, J.

text:
    IN RE SONCHERAY H. ET AL.

    (15332)
    Landau, Herman and Spear, Js.
    Argued June 5
    officially released August 20, 1996

      Sharon A. Peters, for the appellant (respondent).

      Linda Pearce Prestley, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (petitioner).

      Annette Varese Willis, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.
      Reporter of Judicial Decisions

   HEIMAN, J.

The respondent appeals from the trial court’s judgment terminating her parental rights on the grounds that (1) the trial court improperly denied her motion to expunge and seal the minor children’s brief and (2) the trial court had before it insufficient evidence to find that the respondent had failed to rehabilitate. We affirm the judgment of the trial court.

On May 1 and May 8, 1995, a trial was held in the Superior Court for Juvenile Matters at Middletown in which the petitioner, the state department of children and families (DCF), sought the termination of the respondent’s parental rights as to her two minor children. At the completion of the trial, the trial court ordered that all parties submit briefs on or before June 1, 1995. The petitioner and the respondent complied with this order. Counsel for the minor children filed a trial brief on June 8,1995. The respondent filed a motion to expunge and seal the minor children’s brief on the grounds that the brief was not timely filed and it contained information not submitted as evidence at trial. The respondent did not request a hearing on the motion. The trial court denied the respondent’s motion, but permitted the respondent to file a reply brief. The court did not file a written decision as to the grounds of its denial of the motion. The respondent filed a reply brief on June 30, 1995. On August 10, 1995, the trial court granted the termination petition on the ground that the respondent had failed to rehabilitate and found that the termination of the respondent’s parental rights was in the best interests of the children. This appeal follows.

The respondent has failed to include a statement of issues in her appellate brief in violation of Practice Book § 4065 (a). We determine from the arguments in the respondent’s brief that the respondent makes two claims on appeal. First, the respondent claims that the trial court improperly denied her motion to expunge and seal the minor children’s brief. As to this first claim, she asserts generally, as she did in her motion and her reply trial brief, that the trial court should have expunged the minor children’s brief because it contained facts not in evidence. Also as to this first claim, the respondent asserts that the trial court’s acceptance of the brief violated her statutory rights to confrontation and due process under General Statutes § 46b-135 (b). The respondent’s second claim is that the trial court had before it insufficient evidence to find that she had failed to rehabilitate.

We decline to address the respondent’s claim that the trial court’s acceptance of the minor children’s brief violated her statutory rights under § 46b-135 (b) because it was not raised before the trial court. “[W]e have consistently declined to review claims based on a ground different from that raised in the trial court. ... To review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than a trial by ambuscade of the trial judge. . . .” (Citations omitted; internal quotation marks omitted.) Baker v. Cordisco, 37 Conn. App. 515, 522, 657 A.2d 230, cert. denied, 234 Conn. 907, 659 A.2d 1207 (1995).

The respondent’s claim that the motion to expunge and seal should have been granted because the minor children’s brief contained facts not in evidence was properly preserved for appellate review. The claim that the brief contained facts not in evidence was set out in the motion itself. The argument was advanced in the respondent’s reply trial brief and has been briefed in this appeal. This claim is governed by Main v Main, 17 Conn. App. 670, 675, 555 A.2d 997, cert. denied, 211 Conn. 809, 559 A.2d 1142 (1989). In Main, the defendant claimed that the trial court improperly considered evidence submitted by the plaintiff in her posttrial brief. This court held that in order successfully to attack the trial court’s decision on this ground, the defendant must show that the record reasonably discloses that the court relied on matters not in evidence or not properly in evidence for the basis of its conclusion. Id. In Main, the defendant’s claim failed because the record did not disclose that the trial court relied on improper evidence contained in the posttrial brief. Id.

Here, the respondent conceded in her appellate brief that the trial court’s memorandum of decision does not refer to the allegedly improper facts contained in the minor children’s brief. Moreover, the respondent conceded at oral argument that the trial court’s memorandum of decision set forth no facts generated solely by the minor children’s brief. Our review confirms the respondent’s concessions. Thus, the record does not disclose that the trial court relied on matters not in evidence or not properly in evidence for the basis of its conclusion, and, consequently, the respondent’s claim that the trial court improperly denied her motion to expunge and seal the minor children’s brief must fail. Main v. Main, supra, 17 Conn. App. 675.

The respondent also claims that there was insufficient evidence for the trial court to find that the respondent had failed to rehabilitate within the meaning of General Statutes § 17a-112 (b) (2). Our review of this claim is confined to the determination of whether the trial court 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 its findings. In re Benjamin C., 22 Conn. App. 458, 461, 557 A.2d 1117 (1990). When applying this standard, we construe the evidence in a manner most favorable to sustaining the judgment of the trial court. Id.

The evidence produced at trial through the testimony of the DCF social worker, the social worker from Village for Families and Children and the expert testimony of Walter Borden, a psychiatrist, provided sufficient evidence to support the trial court’s conclusion that the respondent had failed to rehabilitate. The evidence at trial established that the respondent failed to comply with court ordered drug screenings, refused to participate in counseling for drug abuse and responsible parenting, refused to maintain regular visitation with her children, often allowing eight or nine months to pass without visiting them in foster care, and failed to maintain housing and income for any length of time that would permit the children’s return from foster care. “We will not second guess . . . the observations and conclusions of the Superior Court for Juvenile Matters when they are based upon [sufficient] evidence. . . .” (Citations omitted; internal quotation marks omitted.) In re Noel M., 23 Conn. App. 410, 419, 580 A.2d 996 (1990).

The judgment is affirmed.

In this opinion the other judges concurred.

       The respondent did not file a motion for articulation on appeal in an effort to discern the reasons for the trial court’s denial of the motion. See Practice Book § 4051.

       Practice Book § 4065 provides in relevant part: “The appellant’s brief shall contain the following:
      “(a) A concise statement setting forth, in separately numbered paragraphs, without detail or discussion, the principal issue or issues involved in the appeal, with appropriate references to the page or pages of the brief where the issue is discussed .... The statement ordinarily should not exceed one page in length and should be on a page by itself. The court may refuse to receive a brief not complying with that requirement. Such statement shall be deemed in replacement of and shall supersede the preliminary statement of issues.”

       General Statutes § 46b-135 (b) provides in relevant part: “At . . . any proceeding on behalf of a neglected, uncared-for . . . child or youth . . . [the] parent or guardian of the child or youth shall have the rights of confrontation and cross-examination.”

       General Statutes § 17a-112 (b) provides in relevant part: “The superior court upon hearing and notice . . . may grant [a] petition [for the termination of parental rights] if it finds ... (2) the parent of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”


text:
    STATE OF CONNECTICUT v. ROBERT ARTHUR MORRILL
    (12931)
    Landau, Heiman and Hennessy, Js.
    Argued April 24
    officially released August 20, 1996

      Milo J. Altschuler, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John C. Smriga, 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) (4). The defendant asserts that his conviction is fatally flawed because he was denied a fair trial and due process of law. He claims that the state failed to disclose exculpatory information concerning the identification of the perpetrator until after the state had rested, two and one-half years after the information was known to the police. The defendant also claims that the trial court acted improperly (1) in denying the defendant’s motion in limine, thereby permitting lay witnesses to testify as to their opinions that the person depicted in a photograph of the bank robber was the defendant, and (2) in refusing to allow testimony from a New Haven police detective who had identified the photograph of the bank robber as being of a person other than the defendant. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On November 1, 1990, at about 1:55 p.m., a man entered the Madison Avenue branch of the Connecticut National Bank (CNB) in Trumbull and went directly to the platform where the assistant manager was located. The individual was a white male, about five feet, nine or ten inches tall, dressed in a green coverall and wearing dark sunglasses with black frames. The person pointed a gun at the assistant manager, Linda Heller, and walked her over to the door leading into the tellers’ area.

Theresa Rubinsky, a teller at the bank, observed the person enter the bank and noticed the top of a gun sticking out of a plastic bag that the man was carrying as he entered the bank. Rubinsky triggered a device that activated the security camera system so that the cameras took pictures continuously throughout the activity in the bank. The triggering mechanism also activated the silent alarm.

The person told Heller to open the door leading to the rear of the tellers’ cages and, when she had complied, instructed all of the employees to lie down on the floor. He handed the bag to Robert Sabia, a teller, and instructed him to go down the line and empty the contents of the tellers’ drawers into the bag. He also instructed Sabia not to include any dye pack or bait money.

While the robbery was in progress, Anthony Autuori, a customer, entered the bank to transact business, did not see Heller at her usual station and began to walk back toward the tellers’ line. A man came from the rear of the tellers’ station, displayed a gun and told him to lie down on the floor because “[it was] a bank robbery.”

Sabia put the contents of two of the drawers into the bag and also placed a dye pack or bait money in the bag. Sabia gave the bag to the person with the gun and was then told to lie down on the floor. The people in the bank were told to count to fifty before anyone got up. The perpetrator then left the bank.

Sabia got up from the floor and looked out the window. He observed a big cloud of red smoke. He then saw the perpetrator drive off in a red car but he was not certain as to its make or model. Sabia went outside to where the perpetrator had dropped the money when the dye pack exploded. He thought that he had given the robber about $13,000.

Two retired members of the Connecticut state police saw a photograph in the newspaper that had been taken during the robbery and recognized the person engaged in the bank robbery as Robert Arthur Morrill, a person who had served with each of them while they were members of the Connecticut state police. Additionally, James Desanty, a member of the Trumbull police department reviewed the photographs taken during the robbery and identified the person committing the robbery as Morrill based on his having known Morrill as a fellow Trumbull police officer. Resident state police officer Richard Connors, who had worked with Morrill in the same state police barracks, had also seen a photograph of the robbery in the Bridgeport Post and identified the person as Morrill. Connors confirmed his identification by observing the photographs from the bank cameras. Morrill was arrested by warrant on December 11, 1990, and charged in a single count with robbery in the first degree.

Thereafter, Sabia, while employed as head teller at the Oxford branch of CNB, recognized Morrill as the perpetrator of the Trumbull bank robbery when Morrill came into the Oxford branch a number of months after the robbery. In addition, Morrill’s daughter was shown photographs of the bank robbery and identified the person in the photographs as her father.

In March, 1990, the Derby Savings Bank had commenced a foreclosure action against Morrill’s family home. A judgment of foreclosure by sale had entered, and a sale date had been set for November 3, 1990. On October 29, 1990, the attorney representing the bank received a telephone call from Morrill’s attorney asking whether the bank would postpone the sale to permit the reinstatement of the mortgage. The attorney was advised that about $21,000 would be needed to reinstate the mortgage.

On November 1, 1990, the day of the bank robbery, Morrill was employed at Caldor’s in Ridgefield. At about 8:15 a.m., he told his supervisor that he had to go to court and left at once. He did not return until the next afternoon at about 4 p.m.

At trial, the defendant produced several witnesses in his defense. Joseph Gregory, a member of the Trumbull police department, testified that he had compared Morrill’s appearance with the bank surveillance photographs and had formed an opinion that the person in the photographs was not Morrill. He further testified that he had received a telephone call on November 8, 1990, from a caller who identified the person in the newspaper photograph as a person other than Morrill.

Michelle Morrill, the defendant’s daughter, testified that on November 1, 1990, she had loaned her father her car, a red 1988 Nissan Sentra. She further testified that her father was at her place of employment at about 2:10 p.m. on November 1, 1990.

Aida Czelusniak testified that she works with Michelle Morrill at Village Coiffures in Seymour and was working with her on November 1, 1990. She testified that she remembered the defendant’s being in the shop on November 1, 1990, between 2 and 2:15 p.m. She said that the defendant came to the beauty shop on November 1,1990, to borrow money from his daughter.

The defendant testified on his own behalf and asserted that on November 1, 1990, he had reported to the Caldor’s store in Ridgefield at about 7 a.m., and had remained there until about 10 a.m. At about 10 a.m., he left Ridgefield to travel to the courthouse in New Haven to respond to a subpoena to testify in a civil action in which he was a witness. He testified that he arrived at the courthouse between 11 and 11:30 a.m. and discovered that he was in the G.A. courthouse instead of the J.D. courthouse. When he discovered his error he walked to the J.D. courthouse. He claimed that he was unable to find either the parties or the lawyers and that he left the courthouse and started back to Ridgefield. He testified that he stopped for lunch and then went to his daughter’s place of employment in Seymour. He claimed to have arrived at the beauty shop between 2 and 2:30 p.m. He further asserted that he had not been in Trumbull on November 1, 1990.

The jury found the defendant guilty as charged, and this appeal follows.

I

As a preliminary matter, the defendant asserts that even if we conclude that his individual claims of trial court impropriety are individually insufficient to require reversal, the cumulative effect of these actions would require reversal because collectively, they would constitute a denial of due process. We note that our law is clearly to the contrary.

“Our Supreme Court has rejected a claim that a group of instructional claims of error, none of which was found to constitute reversible error, should be aggregated to form a separate basis for a claim of a constitutional violation of a right to a fair trial; State v. Tillman, 220 Conn. 487, 505, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992); and also rejected a claim that the cumulative effect of a variety of alleged improprieties should be the basis of a claim of constitutional violation .... We also reject as untenable the creation of a new constitutional claim in which the totality of alleged constitutional error is greater than the sum of its parts.” (Citation omitted; internal quotation marks omitted.) State v. Reddick, 33 Conn. App. 311, 338-39, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994). Thus, the defendant’s claim of alleged cumulative improprieties is without merit.

The defendant asserts that he was denied a fair trial and due process because of three specific actions of the trial court. We will examine each claim individually.

A

The defendant first claims that the trial court improperly denied his motion to dismiss when the state made a late disclosure of exculpatory material during the course of the trial. We are unpersuaded.

Certain additional facts are necessary to an understanding of our resolution of this issue. By discovery motion dated February 19, 1991, the defendant sought, inter alia, the production of “[a]ny and all exculpatory information and material.” That request was granted pursuant to Practice Book § 741 (1). On June 3, 1993, the defendant filed another motion for discoveiy, this time seeking production of copies of all police reports concerning the investigation into the robbery of CNB on November 1, 1990, as well as all reports concerning the defendant. The defendant sought production of this material because the state did not intend to call any investigating officers as witnesses and he asserted that the information contained in the reports would allow him to present a more complete defense than if these reports were not available. Moreover, he claimed that he could not receive a fair trial without the reports. The trial court was never called on to rule on the defendant’s last motion for production because the prosecutor obtained possession of all the Trumbull police department files relating to the robbery, examined them for pertinent documents and turned over to the defendant a previously undisclosed report from Detective Robert Duva. The report indicated that a New Haven police detective had told Duva that the photograph of the perpetrator of the bank robbery published in the Bridgeport Post bore a strong resemblance to a known bank robber named John Reed.

On June 4,1993, the morning following the disclosure by the state of this claimed exculpatory material, the defendant filed a motion to dismiss alleging that the state had suppressed this information, had failed to disclose it in a timely manner and that the defendant’s right to a fair trial was irrevocably prejudiced. After hearing argument concerning the defendant’s motion to dismiss, the trial court denied the motion, but offered the defendant a continuance to allow him to conduct whatever investigation he deemed appropriate, and, in addition, offered the defendant the right to recall any witness and to engage in any additional cross-examination that the defendant deemed necessary based on his investigation. The defendant declined the trial court’s offer, indicating that he did not want a continuance, because he felt that he was entitled to a dismissal of the charges.

In his brief, the defendant, in arguing that the trial court denied the motion improperly, asserts that “[h]e was convicted because he looked just like the person in the photographs.” This assertion is not, however, factually accurate. The record reveals that Sabia made an in-court identification of the defendant as the perpetrator without reference to any photographs and also testified that he had identified the defendant as the perpetrator when the defendant came into the Oxford branch of CNB. Additionally, Rubinsky made an in-court identification of the defendant as the person that perpetrated the robbery based on her observations of him at the time of the occurrence.

It is against this background that we examine the defendant’s claim that the trial court improperly denied his motion to dismiss. We begin our analysis by restating the obligation that rests on the state to produce exculpatory evidence. Under Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), “[t]he state is constitutionally obligated to disclose certain information to a defendant. The principles of due process require the prosecution to disclose exculpatory evidence that is material to a defendant’s guilt or punishment. ... In order to prove a Brady violation, the defendant must show: (1) that the prosecution suppressed evidence after a request by the defense; (2) that the evidence was favorable to the defense; and (3) that the evidence was material. . . . State v. Rasmussen, 225 Conn. 55, 90, 621 A.2d 728 (1993).” (Citations omitted; internal quotation marks omitted.) State v. Rogers, 38 Conn. App. 777, 798, 664 A.2d 291, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995). The defendant’s reliance on Brady is misplaced. Our Supreme Court has concluded that evidence that is disclosed, even if disclosed during trial, is not suppressed as that term is used in Brady. State v. Walker, 214 Conn. 122, 126, 571 A.2d 686 (1990). Here, the existence of the evidence and its nature was disclosed during trial and was not suppressed.

“The defendant, therefore, has no basis for a claim of suppression. He can complain only of the timing of the disclosure. . . . [S]ee Hudson v. Sowders 510 F. Sup. 124, 126 (W.D. Ky. 1981), aff'd, 698 F.2d 1220 (6th Cir. 1982). Under such circumstances the defendant bears the burden of proving that he was prejudiced by the failure of the state to make [the identification] information available to him at an earlier time. United States v. Stone, 471 F.2d 170, 173-74 (7th Cir. 1972), cert. denied, 411 U.S. 931, 93 S. Ct. 1898, 36 L. Ed. 2d 391 (1973) . . . .” (Citation omitted.) State v. Walker, supra, 214 Conn. 126-27.

Moreover, the defendant also has failed to establish how he was prejudiced by the late disclosure. The defendant, both before the trial court, and before this court, asserted that he was prejudiced by virtue of the “suppression” of the statement allegedly made by a New Haven detective to Duva that the photograph in the newspaper bore a strong resemblance to a known bank robber. We again note that this evidence was not suppressed. State v. Walker, supra, 214 Conn. 126-27. Thus, the burden rested with the defendant to demonstrate that the timing of the disclosure prejudiced him to such an extent as to deprive him of a fair trial. State v. Reddick, 197 Conn. 115, 122, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). Other than the defendant’s unsupported assertion that he was prejudiced by the late disclosure, and his equally unsupported claim that he might have been able to conduct a proper investigation, the record is devoid of any concrete claim supporting his assertion.

The trial court offered the defendant a continuance so that he could conduct any investigation that he deemed appropriate. There was no indication that the New Haven police detective was unavailable nor was there any showing that Reed was not available. Moreover, when the defendant asserted that, in light of this evidence, he might have conducted a different or more extensive cross-examination, the trial court offered him the opportunity to recall any witness and to conduct additional cross-examination. The defendant declined all such offers asserting that he was entitled to a dismissal of the charges. Additionally, while the defendant attempted to introduce the hearsay testimony of the Trumbull detective who had received the alleged telephone call from the New Haven detective, no evidence was introduced to show the unavailability of the New Haven police detective, nor did the defendant attempt to introduce into evidence a picture of Reed. Thus, the defendant failed to show how he was specifically harmed or prejudiced by the late disclosure of the evidence or that he was deprived of its effective use. See State v. Reddick, supra, 197 Conn. 122.

We also note that the defendant has failed to satisfy the materiality component of Brady. See State v. Rogers, supra, 38 Conn. 798. In order to establish materiality based on a request for exculpatory material, the defendant must show that the availability of the evidence “might have affected the outcome of the trial. United States v. Agurs, [427 U.S. 97, 104, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976).]” State v. Maldonado, 193 Conn. 350, 369, 478 A.2d 581 (1984). In this case, two eyewitnesses made in-court identifications of the defendant as the perpetrator of the robbeiy based on their observations of the perpetrator at the scene of the crime. Sabia also made a positive out-of-court identification approximately eight months after the robbeiy, while other witnesses identified the defendant as the perpetrator on the basis of the surveillance photograph published in the newspaper. In addition, the defendant’s daughter identified a surveillance photograph of the perpetrator as being of her father. Thus, the defendant’s claim that the failure to produce the fact of the telephone call in a more timely fashion affected the outcome of the trial is speculative at best. The mere possibility that an item of evidence that is disclosed late, but nonetheless disclosed during the trial, “might have helped the defense or might have affected the outcome of the trial . . . does not establish materiality in the constitutional sense.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Shannon, 212 Conn. 387, 402, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d 512 (1989).

The trial court acted correctly when it denied the defendant’s motion to dismiss based on his claim of suppression of exculpatory evidence.

B

The defendant next asserts that the trial court acted incorrectly in denying his motion in limine that sought to exclude testimony to the effect that a surveillance photograph published in the Bridgeport Post appeared to witnesses to be of the defendant. The defendant based his motion on his claim that the witnesses were not competent to testify as identification experts, that such testimony would be more prejudicial than probative and that the testimony would usurp the function of the jury. The state argued at trial that the arrest of the defendant followed telephone calls from these witnesses identifying the photograph as being of the defendant. The trial court denied the motion in limine.

The defendant fails to provide us with any legal analysis for his position, and his brief is devoid of legal authority. See State v. James, 237 Conn. 390, 396 nn.10, 12, 678 A.2d 1338 (1996). He argues this issue only in the context of his already rejected claim that the cumulative effect of the combination of the trial court’s delict denied him a fair trial; State v. Robinson, 227 Conn. 711, 747, 631 A.2d 288 (1993); but cites no authority to support his claim that the trial court improperly denied the motion in limine itself. “Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court. ...” (Citations omitted; internal quotation marks omitted.) Hayes v. Smith, 194 Conn. 52, 66 n.12, 480 A.2d 425 (1984). This rule of nonreviewability applies with equal force to constitutional claims; id.; and criminal appeals. See State v. Person, 20 Conn. App. 115, 130, 564 A.2d 626 (1989), aff'd, 215 Conn. 653, 577 A.2d 1036 (1990), cert. denied, 498 U.S. 1048, 111 S. Ct. 756, 112 L. Ed. 2d 776 (1991).

C

Finally, the defendant asserts that the trial court improperly excluded from evidence the testimony of a New Haven police detective who identified the person in the published surveillance photograph as being Reed, an allegedly known and convicted bank robber.

We find neither legal precedent nor legal analysis to support the bare assertions made by the defendant that the trial court acted incorrectly. The only cases cited by the defendant are those in support of his Brady claim. State v. James, supra, 237 Conn. 396 nn.10, 12.

In addition, the defendant has not attempted to comply with the requirements of Practice Book § 4065 (d) (3). What we have said in the past concerning the responsibility of the parties to comply with the rules of practice applies here. “The defendant has not complied with the requirements of Practice Book 4065 (d) (3). . . . His brief contains no specific questions, objections, grounds for objections, the claimed ground of admissibility, or evidentiary rulings by the court, that allow for a review of this claim. When raising evidentiary issues on appeal, all briefs should identify clearly what evidence was excluded or admitted, where the trial counsel objected and preserved his rights and why there was error. . . . The mere assertion in a brief that the evidence was improperly excluded, coupled with transcript page references, will not be sufficient.... It has long been our strong policy that if evidentiary rulings claimed to be improper are to be reviewed by this court, they must be set forth in the briefs as required and outlined by the rules of practice. . . . “ (Citations omitted; internal quotation marks omitted.) State v. Bagley, 35 Conn. App. 138, 144-45, 644 A.2d 386, cert. denied, 231 Conn. 913, 648 A.2d 157 (1994).

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 ... (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 . . . .”

       We note, however, that while the defendant claims that the trial court’s denial of his motion in limine denied him a fair trial and due process, this claim appears to be an evidentiary claim, not constitutional in nature. It is well established that “[rjobing garden variety claims of [an evidentiary nature] in the majestic garb of constitutional claims does not make such claims constitutional in nature. . . . Evidentiary claims are not of constitutional magnitude . . . .” (Citations omitted; internal quotation marks omitted.) State v. Hansen, 39 Conn. App. 384, 390, 666 A.2d 421, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995).

       Practice Book § 4065 (d) (3) provides: “When error is claimed in any other ruling in a court or jury case, the brief or appendix shall include, where appropriate: the pertinent motion or pleading, if it does not appear in the record, as well as any other document which is a part of the file on appeal but is not proper for inclusion in the record; the question or offer of exhibit; the objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answer, if any; the ruling; and any exception. When the basis of the ruling cannot be understood without a knowledge of the evidence or proceeding which preceded or followed the ruling, a brief narrative or verbatim statement of the evidence or proceeding should be made. A verbatim excerpt from the transcript should not be used if a narrative statement will suffice. When the same ruling is repeated, the brief should contain only a single ruling unless the other rulings are further illustrative of the rule which determined the action of the trial court or establish the materiality or harmfulness of the error claimed. The statement of rulings in the brief shall include appropriate references to the page or pages of the transcript.”