text:
    John F. Carr, Jr. v. Elliott Woolwich et al.
    (4019)
    Dupont, C. J., Borden and Spallone, Js.
    Argued March 14 —
    decision released June 17, 1986

      Theresa D’Alton, with whom were Roland F. Moots, Jr., and, on the brief, Thomas P. Byrne, for the appellants (defendants).

      David B. Losee, with whom were Wesley W. Horton and, on the brief, Lawrence J. Kiel, for the appellee (plaintiff).
   Borden, J.

This appeal involves the issue of whether the failure of the defendant planning and zoning commission to act upon the plaintiffs application for a zoning permit for a permitted use of his property within the time constraints set by General Statutes § 8-7d results in the automatic approval of the application. The trial court held that it did so result. We find no error.

The facts are not in dispute. On October 11, 1983, the plaintiff filed with the defendant Bridgewater planning and zoning commission an application for a zoning permit pursuant to § 2.2.3 of the Bridgewater zoning regulations, together with a site development plan, for the construction of a sixty unit hotel on his property located in a commercial C zone. The regulations provide that in a commercial C zone the uses “shall conform to and continue to observe” certain standards and criteria regarding such matters as air contaminants, sound levels, vermin control, waste disposal, fire control, storage of certain material and off-street parking. The regulations also provide in relevant part that “[a] Site Development Plan shall be submitted in four copies for [the commission’s] approval, which Site Plan shall show all applicable data required.” A hotel is a permitted use in a commercial C zone, subject, however, “to conformance with the [relevant provisions] above.” The plaintiff’s application to the commission was accompanied by a detailed site development plan and by a two page document. The application, the site development plan and the accompanying two page document purported to indicate the proposed hotel’s compliance with the applicable zoning regulations.

The commission considered the plaintiff’s application at its regularly scheduled meeting on December 7, 1983, and voted to return the plaintiff’s application and accompanying documents to him. On January 4,1984, the plaintiff appealed to the Bridgewater zoning board of appeals, claiming that the commission’s action in returning his application to him was improper. On March 19,1984, the board directed the commission to process the plaintiffs application and site development plan. At its regularly scheduled April 14, 1984 meeting, the commission noted its receipt of the board’s decision, but nonetheless failed to take any further action on the plaintiff’s application. It still has not done so.

The plaintiff brought this mandamus action against the named defendant, who is the chairman of the commission, and against the commission itself, claiming that, pursuant to General Statutes §§ 8-7d (b) and 8-3 (g), he was entitled to a certificate of approval of his application, site development plans and maps submitted on October 11,1983. The trial court held that, pursuant to the provisions of General Statutes §§ 8-7d (b) and 8-3 (g), the plaintiff was entitled to the mandamus order he sought. It also held that the failure of the plaintiff to submit, with his application, the town sanitarian’s written approval of the septic system did not render his application incomplete so as to deny him the mandamus. This appeal followed.

The defendants argue that the court erred because (1) the plaintiff did not establish that he complied with the various requirements established pursuant to the governing zoning regulations, (2) there is no time requirement in the general statutes or the zoning regulations for approval of a zoning permit, as opposed to approval of a site plan, and they emphasize that the plaintiffs application was for a zoning permit and not for site plan approval, and (3) the absence of the town sanitarian’s written approval of the septic system rendered the plaintiff’s application incomplete. We disagree.

I

We first consider the defendants’ argument that the General Statutes contain no requirement that a zoning commission act within any specified time limits on an application for a zoning permit, as opposed to an application for approval of a site plan. Because this argument effectively rests upon the broad assumption that the absence of a specific provision in the General Statutes governing time limitations upon a zoning commission’s duty to act on an application for a zoning permit necessarily requires the conclusion that the legislature specifically intended not to limit such actions, we must carefully analyze the statutory scheme to determine the intent of the legislature. In doing so, we look both to the legislative history of General Statutes § 8-7 and related provisions, which provide time limitations in most planning and zoning situations, and to the judicial gloss upon that legislation.

Prior to 1977, General Statutes § 8-7, which governs appeals to zoning boards of appeals, provided that “[s]aid board shall fix a reasonable time for the hearing of any appeal and . . . shall decide such appeal within sixty days after the hearing.” General Statutes (Rev. to 1966) § 8-7. In Donohue v. Zoning Board of Appeals, 155 Conn. 550, 235 A.2d 643 (1967), the plaintiffs sought to invalidate a decision of the zoning board of appeals on the ground that it had been rendered beyond the sixty day time period and thus was void. The Supreme Court held, however, that because the “statute contains nothing which expressly invalidates a belated decision or which inferentially makes compliance therewith a condition precedent,” the time period was “not of the essence of the thing to be accomplished” and was “[merely] directory and not mandatory.” Id., 554.

In 1968, the year after Donohue was decided, the Supreme Court decided Finn v. Planning & Zoning Commission, 156 Conn. 540, 244 A.2d 391 (1968). There the court held that, in the context of an application for a subdivision approval, the language of General Statutes § 8-26 requiring commission action within sixty days after submission and providing that the “ ‘failure of the commission to act thereon shall be considered as an approval’... was to ensure prompt and expeditious action on subdivision applications for the protection of the subdivider . . . [and that the] language of the statute is mandatory.” Id., 544. After Finn, therefore, the state of the law was that the statutory time period governing appeals to zoning boards of appeal was directory; Donohue v. Zoning Board of Appeals, supra; whereas, the statutory time period for applications for subdivision approval was mandatory. Finn v. Planning & Zoning Commission, supra. There was no definitive statement regarding the time period governing other land use or planning applications, such as the application in the present case for a zoning permit. Subsequent to Donohue, the legislature, in 1971, amended General Statutes § 8-7 to provide that the board hear the appeal “within sixty-five days after receipt of the notice of appeal,” and that the board “decide such appeal within sixty-five days after the hearing.” Public Acts 1971, No. 71-862, § 4.

In 1977, the legislature enacted Public Acts 1977, No. 77-450 (the 1977 act). Section 3 of the 1977 act amended the language which had been held in Donohue to be directory and substituted, for the 1971 amendment’s language, “within sixty-five days after receipt of the notice of appeal,” the language, “within the period of time permitted under section 8-7d, as amended by section 4 of this act. . . . ” It also eliminated from § 8-7 the following language: “Said board shall decide such appeal within sixty-five days after the hearing.” Thus, section 3 of the 1977 act keyed the disposition of matters before zoning boards of appeals directly into the time periods in General Statutes § 8-7d, as amended by § 4 of the 1977 act. The question remains, however, whether the legislature also intended that these amendments effectively rendered the governing time period as having a uniform, mandatory legal effect. To answer this question, we look first to section 4 of the 1977 act.

Prior to the 1977 act, General Statutes § 8-7d did no more than provide that “in all matters wherein a formal application, request or approval must be submitted to a zoning commission, planning and zoning commission or zoning board of appeals, the date of receipt of such application” would be measured from the agency’s next regularly scheduled meeting or thirty-five days from the application date, whichever was sooner. Section 4 of the 1977 act substantially amended General Statutes § 8-7d.

Subsection 4 (a) of the 1977 act created what is essentially now General Statutes § 8-7d (a), with some differences which are not relevant to this appeal. That subsection provided that, except as provided in subsection (b), whenever a “petition, application, request or appeal must be submitted to a zoning commission, planning and zoning commission or zoning board of appeals . . . and a hearing is required,” the hearing shall commence within sixty-five days from the receipt of the application, the hearing shall be completed within thirty days after the hearing begins, and the decision shall be rendered within sixty-five days after the completion of the hearing. It also provided that the applicant may consent to an extension of any such period but not for more than double the period specified, or the applicant may withdraw the application.

Subsection 4 (b) of the 1977 act addressed the situation involving approval of a site plan application. It provided that approval thereof “shall be rendered within sixty-five days after receipt of such site plan. . . . ” Public Acts 1977, No. 77-450, § 4 (b). It also provided that the applicant may consent to an extension of such period, limited to two further sixty-five day periods, or may withdraw such plan. Id.

Subsection 4 (d) of the 1977 act exempted from the provisions of subsection 4 (a) “any action initiated by any zoning or planning and zoning commission regarding adoption or change of any zoning regulation or boundary.” Public Acts 1977, No. 77-450, § 4 (d).

Sections 5, 6 and 7 of the 1977 act amended General Statutes §§ 8-26, 8-26d and 8-28, which govern matters before planning commissions. These sections of the public act left intact, however, the language which had, in Finn, been construed as mandatory. The general effect of these amendments was to establish time limits, and extensions thereof by consent of the applicants, regarding hearings and decisions of planning commissions, which limits were the same as those provided under section 4 for approval of applications or petitions to zoning commissions, zoning boards of appeals, and combined planning and zoning commissions. Public Acts 1977, No. 77-450, §§ 5 and 6.

It is clear from the language, structure and legislative history of the 1977 act, and from its subsequent judicial gloss, that it was intended to make uniform the time periods within which all the zoning and planning matters covered by it were to be heard and decided. It is equally clear that it was intended to make uniform the legal effect of a violation of those time standards. Sections 1 through 4 of the act specifically keyed the particular time periods for zoning matters into the provisions of General Statutes § 8-7d as amended by the act. Sections 5, 6 and 7 of the act covered planning matters. While leaving intact the language held mandatory in Finn, these latter' sections added further language to General Statutes §§ 8-26, 8-26d and 8-28 which was identical to that used in section 4 of the act covering zoning matters. The remarks of the chief sponsors of the bill on the floor of the General Assembly strongly buttress this reading of the act. It would be bizarre to conclude that the legislature went to such lengths to make all these time limits uniform and, at the same time, that it did not intend to make equally uniform the results of a departure from those time limits.

General Statutes § 8-7d (a) covers, with two exceptions discussed below, “all matters wherein a formal petition, application, request or appeal must be submitted to a zoning commission, planning and zoning commission or zoning board of appeals under this chapter [124, entitled “Zoning,”] and a hearing is required on such petition, application, request or appeal....” See footnote 6, supra. Thus, this broad and sweeping language makes clear the legislature’s intent to cover, except for the two exceptions, all zoning matters involving a petition, application, request or appeal to the specified agencies, which require a hearing. The hearing on such matters must begin within sixty-five days and terminate within an additional thirty days. The decision must be rendered within sixty-five days after completion of the hearing. As under subsection (b), the applicant may, under subsection (a), consent to one or more extensions of any of these periods, provided that the total extension or extensions may not be for more than the specified period, and the applicant may withdraw the application. If the decision is not rendered within these time periods, the application is deemed to have been approved.

This reading of General Statutes § 8-7d (a) as providing for uniform and mandatory time limits for zoning matters is buttressed by the subsequent judicial gloss placed on General Statutes § 8-7d by the Supreme Court in Vartuli v. Sotire, 192 Conn. 353, 472 A.2d 336 (1984). In Vartuli, the court was faced with the issue of whether a coastal site plan review which, pursuant to General Statutes § 22a-109 (e), is “subject to the same statutory requirement as subsection (b) of § 8-7d for the purpose of determining the time limitations on the zoning commission and reaching a final decision,” is also subject to “the presumption of § 8-3 (g) which clearly makes the sixty-five day period [of General Statutes § 8-7d (b)] mandatory.” Vartuli v. Sotire, supra, 359. The court held that, reading General Statutes §§ 22a-109, 8-7d (b) and 8-3 (g) “together compels the conclusion that, as in Finn, the legislature has expressly made approval of a coastal development plan mandatory upon failure to disapprove an application within the specified time.” Id., 362.

The significance of Vartuli for this case, however, lies in its alternative holding. “Furthermore, even if we were to conclude that § 8-3 (g) is not incorporated by reference into the time limitations of the Coastal Management Act, the plaintiff could still prevail under the Donohue test. It is indisputable that § 22a-109 incorporates the provisions of § 8-7d (b); that subsection, read in its entirety, imposes time constraints that are mandatory. After setting forth the sixty-five day period for the zoning board to render its decision, § 8-7d (b) goes on to provide that ‘[t]he applicant may consent to one or more extensions of such period....’ (Emphasis added.) If, as the defendants claim, § 8-7d (b) did not mandate a decision by the zoning board within sixty-five days, why would the board ever need the applicant’s consent to an extension? ‘In construing a statute, each part should be treated as significant and necessary; every sentence, phrase and clause is presumed to have a purpose.’... The consent clause satisfied the second prong of the Donohue test, that statutory language is mandatory ‘which inferentially makes compliance [with the statute] a condition precedent.’ Donohue v. Zoning Board of Appeals, supra, 554. Given the consent clause, § 8-7d (b) is as mandatory as the subdivision statute in Finn.” (Footnote omitted; citations omitted; emphasis in original.) Vartuli v. Sotire, supra, 363-64. The court also held that the time constraints mandate, not simply “further commission action,” but “that, when the time has expired, approval of the application is automatic. The applicant whom the statute intends to protect is otherwise left with no more than a Pyrrhic victory.” Id., 365.

If General Statutes § 8-7d (b) is mandatory because of the clause providing for the applicant’s consent to an extension of the sixty-five day time period, then General Statutes § 8-7d (a) is equally mandatory. General Statutes § 8-7d (a) contains almost precisely the same consent provision as does General Statutes § 8-7d (b).

II

We next address the question of whether General Statutes §§ 8-7d (a), (b) or 8-3 (g) governs this case.

The year after the enactment of the 1977 act, the legislature enacted Public Acts 1978, No. 78-104. In addition to the minor modifications, already noted, which it made in the permissible extensions of those time periods, the principal significance of this 1978 public act to the facts of this case lies in its amendments to General Statutes §§ 8-7d (b) and 8-3 (g).

As a result of the 1977 act, General Statutes § 8-7d (b) provided, in pertinent part, that a “decision on an application for approval of a site plan shall be rendered within sixty-five days after receipt of such site plan,” plus extensions permitted by the applicant. Public Acts 1978, No. 78-104, § 1 (b), inserted the following language at the beginning of General Statutes § 8-7d (b): “Whenever the approval of a site plan is the only requirement to be met or remaining to be met under the zoning regulations for a proposed building, use or structure. ...” (Emphasis added.) Thus, the 1978 amendment limited the applicability of the time period for approval of a site plan under General Statutes § 8-7d (b) to those situations where that approval is either the only requirement or the only requirement remaining unmet for a proposed building or use under the zoning regulations. By its terms, therefore, General Statutes § 8-7d (b) does not apply unless the site plan is the only or the last remaining step in the zoning approval process.

General Statutes § 8-3 (g), which was enacted in 1977 as part of § 2 of Public Acts 1977, No. 77-549, covers the situation in which “[t]he zoning regulations . . . require that a site plan be filed with the commission or other municipal agency or official to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations.” Prior to its amendment in 1978, General Statutes § 8-3 (g) provided in pertinent part: “Approval of a site plan shall be presumed unless a decision to deny or modify it is rendered within sixty-five days after the date of receipt, as defined in § 8-7d. . . .” General Statutes (Rev. to 1978) § 8-3 (g). The 1978 amendment specifically keyed the presumption of approval into the time period established by the 1977 act, by amending General Statutes § 8-3 (g) to provide that such approval “shall be presumed unless a decision to deny or modify it is rendered within the period specified in § 8-7d, as amended by section 4 of public act 77-450. ...” Public Acts 1978, No. 78-104, § 4.

Since 1978, therefore, the relationship between General Statutes §§ 8-3 (g) and 8-7d, and the general import of those sections, may be generally described as follows. General Statutes § 8-3 (g) refers to the situation where a municipality’s zoning regulations require the filing of a site plan as an aid to the determination of whether a proposed use of property complies with the regulations. Such a site plan is deemed to have been approved unless the zoning agency or official denies its approval, or modifies the plan, within the time period set by General Statutes § 8-7d.

General Statutes § 8-7d (b) refers to the situation where, unlike the situation covered by General Statutes § 8-3 (g), approval of a site plan is the only requirement, or the only remaining unmet requirement, under the zoning regulations for a proposed use of property. Such a site plan is deemed to have been approved unless the application for its approval is properly acted upon within sixty-five days after receipt of the application. See Universal Realty, Inc. v. Planning Commission, 3 Conn. App. 556, 562-63, 490 A.2d 96 (1985). The applicant “may consent to one or more extensions of such period, provided the total period of any such extension or extensions shall not exceed two further sixty-five day periods, or may withdraw such plan.” General Statutes § 8-7d (b).

General Statutes § 8-7d (a) refers to all zoning matters which involve a formal petition, application, request or appeal in which a hearing is required. There are, however, two exceptions carved out of the broad provisions of this section. The first is explicit. The opening clause of General Statutes § 8-7d (a) is as follows: “Except as provided in subsection (b) of this section. . . .” Subsection (b), as we have noted, refers to the situation where approval of a site plan is the only requirement, or the only remaining unmet requirement, for approval for a proposed use of property. The second exception derives from General Statutes § 8-7d (d). That subsection provides: “(d) The provisions of subsection (a) of this section [8-7d] shall not apply to any action initiated by any zoning or planning and zoning commission regarding adoption or change of any zoning regulation or boundary.” (Emphasis added.) This exception recognizes that, where a zoning agency is considering adoption of or change in a zoning regulation or boundary, it is acting in its legislative capacity and should not, therefore, be restricted by the mandatory time limits of General Statutes § 8-7d(a). This exception is in turn limited, however, to the situation in which the proposal for legislative adoption or change is “initiated by . . . [the] zoning or plan or zoning and planning commission. ...” Thus, by its terms, it does not apply to the situation where the proposal for zone adoption or change is submitted to the agency by an applicant.

We are aware that, in Coastal Suburban Builders, Inc. v. Planning & Zoning Commission, 2 Conn. App. 489, 479 A.2d 1239 (1984), this court appeared to rule, in broad language, that whenever a zoning agency is acting legislatively, as opposed to administratively, any time constraints are directory and not mandatory. Id., 492-93. We note, however, that the applicants for a zone change in that case pressed their arguments only pursuant to General Statutes §§ 8-3 (g) and 8-7d (b), and that the court did not consider the wide sweep of General Statutes § 8-7d (a) and the limited exception to it provided by § 8-7d (d). We are constrained, therefore, to limit Coastal Suburban Builders, Inc. v. Planning & Zoning Commission, supra, to its facts.

Having concluded that General Statutes § 8-7d (a) applies, with two exceptions, to all zoning applications, which would include an application for a zoning permit, and that its time constraints are mandatory, we next consider whether it applies to the plaintiff’s application in this case. There is no question that his application was one that “must be submitted to a ... planning and zoning commission . . . under . . . chapter [124]” of the General Statutes. The second trigger of General Statutes § 8-7d (a), however, is that “a hearing is required on such . . . application. . . . ” There is nothing in the Bridgewater zoning regulations, which we have examined, requiring a hearing on the plaintiff’s application for a zoning permit for the permitted use which he sought. Although applications to the commission for special uses within the zones of the town require hearings, applications to the commission for permitted uses, such as that of the plaintiff, do not. We conclude, therefore, that the mandatory time constraints of General Statutes § 8-7d (a) do not control the plaintiff’s application.

Ill

This leaves for consideration whether the provisions of General Statutes § 8-3 (g) require, by the passage of time, approval of the plaintiff’s application. We conclude that, under the circumstances of this case, they do.

General Statutes § 8-3 (g) provides in relevant part: “The zoning regulations may require that a site plan be filed with the commission ... to aid in determining the conformity of a proposed building, use or structure with specific proposed regulations. A site plan may be modified or denied only if it fails to comply with requirements already set forth in the regulations. Approval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d.”

We note that there is an inconsistency in the use of the term, “site plan,” between the first and third sentences of this section. The first sentence connotes that the site plan is but a part of the application approval process, namely, as an aid in determining whether a proposed use conforms to the regulations. The third sentence contemplates automatic approval of a site plan by the passage of time, as if approval of the site plan carries with it approval of the entire application with respect to which, under the first sentence, the site plan is simply an aid to determine the conformity of the proposed use with the regulations.

We need not resolve this inconsistency here, however, because in this case we view the plaintiffs site development plan as inseparable from, and part and parcel of, its accompanying documents. The regulation pursuant to which the site development plan was filed required that the plan “show all applicable data required.” The application, the site plan itself and the accompanying two page document, taken together, purported to show all such data required by the regulations. Thus, for purposes of General Statutes § 8-3 (g), the plaintiffs site plan included his application and two page document.

Under these circumstances, it is clear that the commission’s failure to act on the plaintiff’s site plan, together with its accompanying material, rendered it approved pursuant to General Statutes § 8-3 (g). The commission neither denied nor modified the site plan “within the period specified in section 8-7d.” Therefore, “[a]pproval of [the] site plan shall be presumed. . . . ” Id. Since, as we have noted, the plaintiff’s site plan included his application and other documents for purposes of § 8-3 (g), those documents are presumed to have been approved as well.

This conclusion also effectively disposes of the defendants’ argument that the plaintiff is not entitled to mandamus because his application was not accompanied by the town sanitarian’s written approval. If that were required for approval of the plaintiff’s proposed hotel, that would have been a ground for denying the application within the applicable time limits. Similarly, any other failure of the plaintiff to comply with the requirements of the zoning regulations would have been grounds for a timely denial of the application.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 8-7d (b) provides: “Whenever the approval of a site plan is the only requirement to be met or remaining to be met under the zoning regulations for a proposed building, use or structure, a decision on an application for approval of such site plan shall be rendered within sixty-five days after receipt of such site plan. The applicant may consent to one or more extensions of such period, provided the total period of any such extension or extensions shall not exceed two further sixty-five day periods, or may withdraw such plan.”

       General Statutes § 8-3 (g) provides in pertinent part: “The zoning regulations may require that a site plan be filed with the commission or other municipal agency or official to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations. A site plan may be modified or denied only if it fails to comply with requirements already set forth in the regulations. Approval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d. A certificate of approval of any plan for which the period for approval has expired and on which no action has been taken shall be sent to the applicant within fifteen days of the date on which the period for approval has expired.”

       The trial court also rendered judgment in the plaintiffs favor in a zoning appeal which was tried together and decided with his mandamus action. In that case, the court sustained the plaintiffs contention that the attempt of the defendants to amend the zoning regulations, so as to delete the sections permitting the plaintiff’s proposed commercial use of his property, was invalid. The defendants did not appeal from that decision of the trial court.

       We reject the defendants’ related argument that the zoning regulations contain no provision for site plan approval. This argument simply ignores the provision which required the plaintiff to submit a “Site Development Plan ... for [the commission’s] approval, which Site Development plan shall show all applicable data required.”

       Sections 1 and 2 of the 1977 act amended General Statutes §§ 8-3 and 8-3c. General Statutes § 8-3 governs, inter alia, the procedure by which a “zoning commission shall provide for the manner in which [zoning] regulations under section 8-2 and the boundaries of zoning districts shall be respectively established or changed.” The 1977 act provided that “the period of time permitted under section 8-7d, as amended by section 4 of this act” shall govern petitions for change in the zoning regulations or the boundaries of zoning districts. Public Acts 1977, No. 77-450, § 1.
      General Statutes § 8-3c governs requirements for special permits or special exceptions. The 1977 act provided that the period of time under § 8-7d, as amended by section 4 of the act, would govern such requirements. Public Acts 1977, No. 77-450, § 2.

       General Statutes § 8-7d (a) provides: “Except as provided in subsection (b) of this section, in all matters wherein a formal petition, application, request or appeal must be submitted to a zoning commission, planning and zoning commission or zoning board of appeals under this chapter and a hearing is required on such petition, application, request or appeal, such hearing shall commence within sixty-five days after receipt of such petition, application, request or appeal and shall be completed within thirty days after such hearing commences. All decisions on such matters shall be rendered within sixty-five days after completion of such hearing. The petitioner or applicant may consent to one or more extensions of any period specified in this subsection, provided the total extension of any such period shall not be for longer than the original period as specified in this subsection, or may withdraw such petition, application, request or appeal.”

       Public Acts 1978, No. 78-104, § 1, subsequently amended General Statutes § 8-7d (a) by providing that the applicant may consent to “one or more extensions” of any such period, provided “the total extension of such period shall not be for longer than the original period as specified. ...”

       Senator Louis Cutillo remarked: “Mr. President, the bill imposes . . . uniform time periods for commencing hearings, completing hearings and rendering decisions for specified zoning petitions. Applications, requests or appeals before a zoning commission. The combined planning and zoning commission or a zoning board of appeals. It imposes uniform time periods for commencing hearings, completing hearings and rendering decisions in all matters when a formal application request or appeal is submitted to a planning commission. It requires the decision on an application for approval or a site plan be rendered within 65 days after date of receipt of the site plan and permit the extension of such time period for an additional 130 days but only with the consent of the applicant.” 20 S. Proc., Pt. 8, 1977 Sess., pp. 2999-3000.
      Representative Janet Polinsky stated: “This bill concerns itself only with the subject of uniformity of time limits in the existing planning and zoning statutes. This bill would impose uniform time periods for commencing public hearings and rendering decisions for specific zoning petitions, applications and requests or appeals before zoning commissions, planning commissions, combined planning and zoning commissions or zoning board of appeal. In other words, whenever a public hearing is held, whether on a request for a zone change, for a subdivision approval, a special permit, a special exception or whatever, the time limits would all be uniform. As the law reads now, the deadlines are neither uniform nor clear. Simply stated, this bill proposes that all public hearings must be held within ... 65 days of official receipt of a request for such hearing; further, that the public hearing shall be completed within thirty days after it begins and this thirty day period, would, of course, only apply in those very few cases where the subject matter is so controversial as to cause the hearing to be conducted over several sessions. And lastly, that the decision must be rendered within 65 days after the public hearing is completed. This bill would also permit extensions of each of the uniform time periods specified but only where the applicant consents to such extension and in no event could an extension exceed twice the time period specified.” 20 H.R. Proc., Pt. 6, 1977 Sess., pp. 2513-14.

       The plaintiff claims that, because of the size of the septic system, the state department of environmental protection, and not the town sanitarian, has exclusive jurisdiction to issue a septic plan approval, and that he had applied for such approval. In view of our disposition of this case, we need not decide this issue.


source: Caselaw Access Project

author: Bieluch, J.

license: Public Domain

text:
    State of Connecticut v. John S. Giannotti
    (3104)
    Dupont, C. J., Daly and Bieluch, Js.
    Argued March 18 —
    decision released June 17, 1986

      Bruce L. Levin, special public defender, for the appellant (defendant).

      Mary Lesser, special deputy assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, and Patrick J. Clifford and Julia DiCocco Dewey, assistant state’s attorneys, for the appellee (state).
   Bieluch, J.

The defendant appeals from his conviction of the crimes of sexual assault in the first degree in violation of General Statutes §§ 53a-70 and 53a-8; attempted sexual assault in the first degree in violation of General Statutes §§ 53a-49, 53a-70 and 53a-8; assault in the second degree in violation of General Statutes §§ 53a-60 and 53a-8; conspiracy to commit sexual assault in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-70; and the lesser included offense of unlawful restraint in the first degree in violation of General Statutes § 53a-95.

The jury could reasonably have found the following facts. On the evening of September 30, 1983, the defendant and the complainant were seen together with a tall blond man, later identified as Brendon Carlson, drinking at Billy’s Cafe in West Haven. At some point during the evening, as a result of a commotion near the restrooms in the back of the premises, the complainant and Carlson were each asked to leave the premises. When they left, the defendant left with them, pausing long enough to beckon to two other men, John Cholko and Ben Conley, to join them, which they did.

Once outside, the defendant threatened the complainant, stating that he had a weapon, and forced her into his car, a Maverick. The defendant then struck the complainant on the head and drove away with her. Cholko and Conley followed the defendant in Cholko’s Mazda and Carlson followed in his Pontiac. All three cars then converged upon a parking lot across from the Yankee Inn, about six tenths of a mile distant from Billy’s Cafe.

At the parking lot, Cholko and Carlson parked their vehicles approximately fifty yards away from the defendant’s car. Some time later Cholko and Conley left the parking lot. The defendant, meanwhile, had become verbally and physically abusive toward the complainant. He beat her, and eventually she escaped, fell or was pushed from the car onto the ground. At that point, Carlson joined the defendant in beating the complainant, dragging her around the parking lot and tearing off her clothes. The defendant unsuccessfully tried to force his penis into her mouth. Carlson attempted vaginal intercourse. The defendant, however, succeeded in penetrating her vagina. Eventually, the two men left the complainant at the parking lot. Unable to find most of her clothes, the complainant walked, without them, approximately four blocks to her home. The complainant’s boyfriend, with whom she lived at that time, called the police shortly after her arrival.

The complainant was subsequently taken to the Yale-New Haven Hospital by ambulance. She remained in the hospital approximately nine days as a result of her beating. Subsequent surgery was required to implant a wire in her jaw.

The defendant was tried to a jury and testimony was taken over a three day period. The jury subsequently found the defendant guilty as charged on four counts of the second substituted information, namely, sexual assault in the first degree, attempted sexual assault in the first degree, assault in the second degree and conspiracy to commit sexual assault in the first degree. In addition, on the fifth count, kidnapping in the first degree, he was found guilty of the lesser included offense of unlawful restraint in the first degree. As a result of these convictions, the defendant was sentenced to a term of imprisonment of twenty-one years.

The defendant claims five errors in the proceedings leading to his convictions. We will review only four of them.

The defendant’s first claim is that the court’s charge on accessory liability was “so wholly inadequate as to constitute plain and harmful error.” The defendant indicates in his brief that the only exception taken to this charge was with regard to the court’s alleged failure to charge the jury on the element of specific intent for accessory liability. He nonetheless implores us to review this claim pursuant to State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). Having reviewed the claims made by the defendant in his brief, we conclude that resort to Evans is unnecessary.

Although the defendant frames his dispute with the court’s charge on accessory liability in two ways, both approaches to the issue focus on the court’s alleged failure to instruct the jury adequately with regard to the issue of the defendant’s intent. First, the defendant contests the court’s failure to define a variety of terms used in the accessory liability statute. General Statutes § 53a-8 provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.” Specifically, the defendant asserts that the words “solicits,” “requests,” “commands,” “importunes” and the phrase “intentionally aids” should have been defined for the jury.

The defendant cites, as authority for this proposition State v. Enanno, 96 Conn. 420, 425, 114 A. 386 (1921). There the court stated that “[t]he distinction between mere presence as an inactive companion, passive acquiescence, innocent acts which may in fact have aided the one who was doing physically the act charged, on the one hand, and, on the other, criminality in intent and community of unlawful purposes and actions, the meaning of the terms ‘aiding’ and ‘abetting,’ and the other descriptive words used in the statute [General Statutes (1918 Rev.) § 6716] pointing to the necessity of what we may call a sort of partnership in purpose and conduct, — -these matters, and perhaps others, according to the circumstances of the particular case, should have been called to the attention of the jury . . . .” Id., 425. Thus, the court’s purpose in requiring explanation of the so-called “descriptive words” in Enanno was to emphasize their latent intent element.

The defendant’s second approach to this issue is to dispute the court’s failure to define the meaning of the term “mental state” as those words are used in § 53a-8. Once again, this argument focuses on the element of intent for accessory liability.

The court in this case instructed the jury that the defendant had been charged as an accessory only with respect to three of the five counts in the information. Each time the court instructed the jury on one of those counts, it informed the jury that the defendant’s liability as an accessory was to be considered with respect to that offense. The court read General Statutes § 53a-8 to the jury in its entirety. The court then summarized § 53a-8 by stating that “it makes an accessory liable to the same extent as the principal.” Finally, the court gave the jury general instructions on the element of intent in criminal behavior.

Although the court did not specifically define each of the “descriptive words” enumerated by the defendant, the court did make it clear that the jury was obligated to find that the defendant intended to aid or abet another in committing the crime charged prior to finding him guilty. The court’s reading of the statute would suffice to make that point clear. None of the descriptive words in § 53a-8 is so complex or rooted in legal meaning as to render the average juror incapable of understanding its meaning. Further, the requirement of the defendant’s intent, in aiding or abetting another, to commit the underlying offense was adequately explained by the court’s general charge on intent. “The test is what ‘a reasonable juror hearing this instruction within the context of the entire charge would naturally assume . . . . ’ State v. Bouleware, 183 Conn. 444, 447-48,441 A.2d 1 (1981).” State v. Lopez, 5 Conn. App. 599, 605, 502 A.2d 418 (1985), cert. denied, 199 Conn. 803, 506 A.2d 146 (1986). No juror could reasonably have assumed the court’s instructions to mean that the defendant could be convicted pursuant to § 53a-8: (1) without intending to aid another; and (2) by giving such aid, without intending to commit the underlying offense charged “with the criminal intent and common intent of the principal.”

The defendant’s second claim of error relates to the court’s instruction that “[y]ou will have with you the information, which lists the charges, as I’ve gone through them with you here this afternoon, as well as the exhibits; and you may use them in any way in which you find them useful in the course of your deliberations.” The defendant asserts that this instruction “credited the information as evidence of guilt.” This argument is without merit since, in a jury charge spanning fifty-three transcript pages, only three pages after the statement to which the defendant objects, the court expressly stated that “the information itself will go to you as the statement of the charges, but that’s not evidence. Any of the other exhibits that go to you are evidence before you.” This claim of error represents an attempt to dissect a small portion of the charge — a practice which we have repeatedly declined to employ. State v. Lopez, supra, 604.

The defendant’s third claim of error relates to the court’s instructions with respect to the fifth count of the information, which charged the defendant with conspiracy to commit sexual assault in the first degree. The defendant argues that the court “failed to adequately inform the jury that the defendant must have conspired with specific intent to commit the crime of sexual assault in the first degree.” The essence of this claim is that the court repeatedly referred, in the course of its instructions, to conspiracy to commit “a crime.” As a result of these statements, the defendant claims that the jury might have been misled into believing that it would suffice for them to find that the defendant conspired to commit any offense, or a different offense, in order to convict him of the conspiracy charge. Once again, this argument is the result of a critical and defective dissection of the charge.

On three occasions during its instruction on the conspiracy charge, the court stated clearly that the jury was obligated to find the defendant guilty of conspiring to commit sexual assault in the first degree in order to convict him of the offense. The court charged that (1) “[t]he first thing that you must decide is, did this accused form an agreement with one or more persons to commit the crime of sexual assault in the first degree?”; (2) “you must be satisfied beyond a reasonable doubt, in the first place, that he knowingly participated in the unlawful agreement, the unlawful agreement charged in the information” (emphasis added); and (3) “[the state] must prove that this accused entered into an agreement with at least one other to commit the crime of sexual assault in the first degree.” Thus, the mere fact that, in discussing the general definition of conspiracy with the jury, the court referred to an agreement to commit “a crime” cannot be said to have been misleading in this case.

Finally, the defendant asserts that his conviction of both sexual assault in the first degree and attempted sexual assault in the first degree constituted a violation of the constitutional prohibition against double jeopardy. We disagree.

“ ‘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.’ State v. Devino, [195 Conn. 70, 74, 485 A.2d 1302 (1985)] . . . .” State v. Boucino, 199 Conn. 207, 222, 506 A.2d 125 (1986); see also State v. Thompson, 197 Conn. 67, 72, 495 A.2d 1054 (1985). In the present case, each individual act or attempted act of forcible sexual intercourse within the definition of that term in General Statutes § 53a-65 (2) constituted a separate crime. State v. Frazier, 185 Conn. 211, 229, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982). The evidence previously reviewed was sufficient to support by specific conduct the verdicts of conviction for sexual assault in the first degree and attempted sexual assault in the first degree. The sufficiency of the evidence to support those verdicts was admitted by defense counsel at argument on appeal.

There is no error.

In this opinion the other judges concurred.

       Although the judgment file in this case indicates that the defendant was convicted of unlawful restraint as a lesser included offense of the conspiracy charge, a review of the transcript demonstrates that, in fact, the defendant was convicted of, and sentenced for, the crime of unlawful restraint as a lesser included offense of the charge of kidnapping in the first degree.

       Carlson was tried separately with respect to the incident at issue here.

       The remaining claim is that the defendant received ineffective assistance of counsel. The defendant concedes, however, that a petition for a writ of habeas corpus is the appropriate vehicle by which to raise this claim. State v. Leecan, 198 Conn. 517, 542, 504 A.2d 480 (1986); State v. Rivera, 196 Conn. 567, 571, 494 A.2d 570 (1985); Miller v. Angliker, 4 Conn. App. 406, 416-17, 494 A.2d 1226 (1985).

       We also note that the defendant has objected to the court’s summary that § 53a-8 “makes an accessory liable to the same extent as a principal.” He asserts that this summary, without more, is an inadequate instruction on accessory liability. As we have noted, however, that summary was not the court’s sole or complete instruction on accessory liability. Thus, this argument is without merit.


author: Borden, J.

text:
    Warren E. Howland v. Leon R. Schweir et al.
    (4061)
    Dupont, C. J., Borden and Spallone, Js.
    Argued March 11 —
    decision released June 17, 1986

      Joel E. Janenda, for the appellant (plaintiff).

      Hagop H. Jamgochian, with whom, on the brief, was Charles Stroh, for the appellees (defendants).
   Borden, J.

The plaintiff appeals from the judgment of the court rejecting his claim for a real estate commission from the defendants. The issues involve the scope and meaning of General Statutes § 20-325a (b). We find no error.

The trial court’s findings and the undisputed documents establish the following facts: On October 10, 1972, the named defendant, Leon R. Schweir, and the plaintiff, a licensed real estate agent, signed a listing agreement on a form furnished by the plaintiff for the sale of certain property. The property consisted of approximately sixty acres in South Windsor and Manchester. The agreement gave the plaintiff the exclusive right to sell the property, for a period of thirty days, at a commission of 10 percent of the selling price of $3800 per acre. It also provided that, during its period, Leon R. Schweir would forward to the plaintiff all inquiries about buying the property. The court further found that this listing agreement terminated on November 10,1972, that it did not contain a provision for any extension, and that it was not modified. The court also found that the plaintiff did not, within the thirty day time period provided by the agreement, accomplish any of the acts necessary for a broker to earn a commission. The other two defendants, Eileen Schweir and Edward Schweir, who did not sign this agreement, owned portions of the property described in the agreement.

On December 5, 1972, Eileen Schweir and Map Associates of M. and S.W. (Map), a New York partnership, entered into an agreement giving Map an option to buy from Eileen Schweir certain properties in Manchester for $76,000. The option was for one year and was renewable by Map for an additional year, or until December 5,1974. This agreement acknowledged the plaintiff as the broker and stated that he would be entitled to a commission if the option were exercised.

On the same date, Albert Schweir, who was not involved in this case, Edward Schweir and Leon R. Schweir entered into an option agreement with Map for the sale of property in Manchester for $152,000, which agreement was similar to that between Eileen Schweir and Map. This agreement also acknowledged the plaintiff as the broker and stated that he would be entitled to a commission if the option were exercised. It also was for a period of one year, renewable for an additional year.

On January 29, 1973, Leon R. Schweir and Map entered into an essentially similar option agreement for the sale of property in Manchester for $57,000. This agreement was essentially the same as the two entered into on December 5, 1972, and contained the same terms regarding its time period and the plaintiffs right to a commission if the option were exercised.

Each of these three option agreements referred to the other two as granting options of adjoining lands. Each option was for the sale of acreage at $3800 per acre and each was eventually extended for an additional year in accordance with its terms.

The trial court further found that Map was the group with whom the plaintiff dealt from the beginning, and that he continued to be involved with Map and the Schweirs after 1972. Map and Leon R. Schweir continued to deal with each other through the plaintiff into 1980.

On January 1, 1978, each of the three defendants entered into a new option agreement with Map. These agreements, which eliminated the South Windsor property, were for a total of 41.52 acres in Manchester at a price of $4000 per acre. Each agreement was for one year, renewable for an additional year, and each was extended to January 1, 1981. The agreements contained identical paragraphs in which the parties represented that no broker was instrumental in effecting the transaction, and in which the parties agreed to hold each other harmless with respect to any broker’s commission. Each seller specifically agreed to indemnify Map against any claim for commission advanced by the plaintiff. The plaintiff knew nothing about these agreements.

On December 1, 1981, the three defendants sold to Map the same property covered by the January 1,1978 option agreements at the prices set by those agreements. The plaintiff claimed at trial that he was entitled to commissions on these sales. The trial court held that, pursuant to General Statutes § 20-825a, the listing agreement of October 10, 1972, did not support the plaintiff’s right to a commission, and rendered judgment for the defendants. This appeal followed.

The plaintiff claims that any deficiencies in the October 10,1972 listing agreement were cured by the option agreements of December 5, 1972, and January 29, 1973, and that he is entitled to a commission on the sale of the properties in 1981. We disagree.

The plaintiffs argument founders on a series of critical factual findings regarding the October 10,1972 listing agreement. Those findings, which the plaintiff does not challenge as clearly erroneous, are that the listing agreement terminated on November 10,1972, and that he did not, within that time period, perform the acts necessary to earn a commission. Thus, even if we assume without deciding that the subsequent 1972 and 1973 option agreements filled any gaps in that listing agreement, the plaintiff did not establish his right to a commission pursuant to that agreement.

To recover a commission, a broker must ordinarily show (1) that he has produced a customer ready, willing and able to buy on terms acceptable to the seller, or (2) that he has brought the buyer and seller to an enforceable agreement. Revere Real Estate, Inc. v. Cerato, 186 Conn. 74, 77-78, 438 A.2d 1202 (1982). He must also show that he has complied with General Statutes § 20-325a. Thornton Real Estate, Inc. v. Lobdell, 184 Conn. 228, 230, 439 A.2d 946 (1981).

General Statutes § 20-325a (b) provides in pertinent part that no licensed real estate broker “shall commence or begin any action in respect of any acts done or services rendered . . . unless such acts or services were rendered pursuant to a contract or authorization from the person for whom such acts were done or services rendered. To satisfy the requirements of this subsection any such contract or authorization shall . . . (4) contain the conditions of such contract or authorization . . . . ” This statute has been viewed by our courts as being mandatory and subject to strict construction. See, e.g., Thornton Real Estate, Inc. v. Lobdell, supra (signature by owner’s agent not in compliance with statute as then worded); Hossan v. Hudiakoff, 178 Conn. 381, 383, 423 A.2d 108 (1979) (lack of address of broker); Arruda Realty, Inc. v. Doyon, 35 Conn. Sup. 617, 620, 401 A.2d 625 (1978) (lack of address of owner). “A broker who does not follow the mandate of the statute does so at his peril.” Thornton Real Estate, Inc. v. Lobdell, supra, 230-31.

The statute requires that the “acts or services” which are the foundation of the plaintiff’s claim for commission be “rendered pursuant to” a listing agreement which complied with the statute. General Statutes § 20-325a (b). “ ‘ “Pursuant to” is defined as “acting or done in consequence or in prosecution (of anything); hence, agreeable; conformable; following; according.” ’ ” State v. Sabia, 1 Conn. App. 315, 319, 471 A.2d 673 (1984). See also State v. One 1977 Buick Automobile, 196 Conn. 471, 477, 493 A.2d 874 (1985). One of the “conditions of [the 1972 listing] contract”; General Statutes § 20-325a (b) (4); was that it was for a thirty day period. We see no reason why the same strictness with which General Statutes § 20-325a (b) has been applied to other parts of listing agreements should not apply to the time period of this listing agreement. Indeed, such a reading of the statute and this agreement is consistent with the general law regarding a broker’s right to a commission, which has long recognized that a “listing contract may . . . make the broker’s right to a commission dependent upon specific conditions. . . .” Revere Real Estate, Inc. v. Cerato, supra, 78.

Thus, in order for the plaintiff to prevail under the October 10, 1972 listing agreement, he was required to prove, not only that the agreement complied with General Statutes § 20-325a (b), but also that his services were rendered pursuant to the terms of that agreement. He was, therefore, required to establish that, between October 10, 1972, and November 10, 1972, he either produced a ready, willing and able buyer, or brought the buyer and seller to an enforceable agreement. The trial court specifically found that he did neither. This finding is fatal to his claim. Any services he may have rendered after November 10, 1972, were performed without the benefit of a proper listing agreement and were thus performed at his peril.

There is no error.

In this opinion the other judges concurred.

       Despite these agreements and the brokerage disclaimer in each, on February 21, 1978, Leon R. Schweir entered into another listing agreement with the plaintiff which was for a two year period. This agreement covered seventy-two acres located in South Windsor and Manchester, to be sold to Map. The trial court concluded that this agreement did not meet the requirements of General Statutes § 20-325a. In this appeal, the plaintiff does not challenge this conclusion. We, therefore, do not consider whether this conclusion was correct.

       Our analysis of the case is hampered by the failure of the plaintiff to comply with Practice Book § 3060P (a), which requires a “concise statement setting forth, in separately numbered paragraphs, without detail or discussion, the principal issue or issues involved in the appeal . . . .’’and with Practice Book § 3060F (d), which requires that the “argument [be] divided under appropriate headings into as many parts as there are points to be presented . . . . ” Thus, we have had to glean from the plaintiff’s narrative brief the specific claims of error of the trial court.

       The plaintiff does not claim that, during the thirty day period of the 1972 agreement, Map approached Leon R. Schweir about buying the property. Thus, he does not claim any violation by Leon R. Schweir of the exclusive sales aspect of the listing agreement. See John F. Epina Realty, Inc. v. Space Realty, Inc., 194 Conn. 71, 76 n.4, 480 A.2d 499 (1984).


text:
    State of Connecticut v. Robert L. Smith
    (2861)
    Borden, Daly and Bieluch, Js.
    Argued March 21 —
    decision released June 17, 1986

      Robert J. Sweeney, assistant public defender, with whom, on the brief, was Susan M. Hankins, assistant public defender, for the appellant (defendant).

      JuliaDiCocco Dewey, assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, and Robert J. Devlin, assistant state’s attorney, for the appellee (state).
   Bieluch, J.

The defendant, Robert L. Smith, was convicted by a jury of robbery in the first degree, a violation of General Statutes § 53a-134 (a) (4). He appeals from the judgment of conviction and claims only that the court erred by failing to charge the jury that identification was an essential element of the crime charged and that the state had the burden to prove identity beyond a reasonable doubt. We find no such error.

The jury could have reasonably found these facts relevant to this appeal: On March 2,1982, at about 11 p.m., a robbery occurred at Martin’s Grocery Store, a small store located at 291 Dixwell Avenue in New Haven. This robbery was committed by two men, one of whom carried a shotgun with which he confronted Milton Martin, the son of the owner and then in charge of the business. Two women, Arlene Lewis and Beverly Rochester, were present in the front of the grocery store. Rochester was confronted by the other participant in the robbery, later identified as the defendant, when he directed her to remain as she attempted to leave through the front door. She “was standing beside him face to face sidewise,” close enough to touch each other. When the gunman threatened to shoot Martin if he did not “come up with the rest of the money,” Rochester placed her wallet on the counter, but the robber next to her told her to put her money away. As he spoke to her, he dropped the jacket lapel he had held covering his mouth. The entire incident lasted between five and seven minutes.

After Martin called his brother to the scene, they accompanied Lewis and Rochester to the police station to report the robbery. The witnesses described the two robbers, but only Rochester was able to make an identification of the defendant from photographs in an array. The identified photograph, signed by her at 11:46 p.m. on the same evening, was introduced into evidence. On April 1,1982, Rochester was shopping with a girlfriend in a supermarket on Whalley Avenue when she recognized the defendant with his girlfriend. The identification was reported to a police officer present in the store who arrested the defendant. Her final identification of the defendant, the third after the robbery, was made in court during the trial.

The essence of the defense was that the defendant had been mistakenly identified. The defendant’s only witness was Arlene Lewis who knew the defendant as a former neighbor on the block. She testified that the defendant was not one of the two robbers who had committed the crime for which he was on trial. On cross-examination, she admitted that she was farther away from the man in question than Rochester was, and that, as soon as she realized that a robbery was in progress, she picked up a book and began reading it so as not to become involved.

The defendant’s only claim of error alleges that the trial court’s charge to the jury was defective because it failed to instruct the jury that identification was an essential element of the crime charged, and that the state had the burden to prove the identification of the defendant as one of the robbers beyond a reasonable doubt. The defendant argues that the failure to include a specific instruction concerning the issue of identification may have given the jury the mistaken belief that the defendant bore the burden of proving that he was not involved in the robbery.

It is axiomatic that a jury must find that the defendant on trial before it was the person who committed the alleged offense in order to render a verdict of guilty. The trial court, in this case, properly instructed the jury that the state bore the sole burden of proving beyond a reasonable doubt that the defendant participated in the robbery. The trial court instructed the jury in detail on the presumption of innocence, stating that the defendant “then was innocent and continues to be innocent until such time as the evidence and the matters produced here in the ordinary conduct of trial satisfies you beyond a reasonable doubt that he is guilty.” It explicitly stated that “[t]he accused does not have to prove [that] he did not commit the offense. The state must prove that he did. The presumption of innocence applies to each and every element of the crime. . . . Its only effect is to place upon the state the burden of proving the defendant guilty beyond a reasonable doubt.” The defendant’s argument is without any substance. It completely lacks foundation and displays a lack of confidence in the jury’s understanding of its duties and its instructions from the court.

It should be observed that this was not á case where “ ‘the special difficulties often presented by identification testimony . . . require additional information be given to the jury in order ... to repose confidence in their ability to evaluate the reliability of the identification.’ United States v. Telfaire, [469 F.2d 552, 556 (D.C. Cir. 1972)].” State v. Harrell, 199 Conn. 255, 270-71, 506 A.2d 1041 (1986). Furthermore, the defendant never requested that the trial court instruct the jury on identification. See United States v. Telfaire, supra.

Rochester was able to observe the defendant from close view during the robbery. As he kept her from rushing out of the store by blocking her path, she testified “we could kiss right there.” She identified the defendant’s picture from a photo array about one-half hour after the robbery. About thirty days later, she identified him in person in a supermarket. On this occasion, he appeared to recognize her and showed agitation.

In light of all the facts and circumstances of this case, we find that the trial court’s charge “ ‘gave the jury a clear understanding of the elements of the crime charged and the proper guidance to determine if those elements were present.’ State v. Avila, 166 Conn. 569, 574, 353 A.2d 776 (1974).” State v. Gabriel, 192 Conn. 405, 416, 473 A.2d 300 (1984). The instructions were correct in law and fairly presented the case to the jury. State v. Harrell, supra, 271.

There is no error.

In this opinion the other judges concurred.

       Rochester informed a police officer on duty, stationed at the supermarket, that she just saw the man who had robbed Martin’s Grocery Store. The officer approached the man indicated by Rochester and requested identification. The man was identified as Robert L. Smith, the defendant. A check by the officer with the police department revealed that a warrant had been issued for Smith’s arrest on a charge of robbery. The police officer then placed Smith under arrest and advised him of his constitutional rights.

       The defendant’s preliminary statement of issues includes five specific claims of error, only one of which has been properly presented for appellate review. The claim of an erroneous jury charge is the only one briefed and argued before this court. Therefore, it is that issue alone that we shall address. All of the remaining issues are considered abandoned. State v. Davis, 190 Conn. 327, 333 nn. 4, 5, 461 A.2d 947, cert. denied, 464 U.S. 938, 104 S. Ct. 350, 78 L. Ed. 2d 315 (1983).


author: Daly, J.

text:
    Peggy Pisch v. Raymond Pisch
    (3978)
    Hull, Daly and Bieluch, Js.
    Argued April 1 —
    decision released June 17, 1986

      Louis Kiefer, for the appellant (defendant).

      Christine M. Whitehead, for the appellee (plaintiff).
   Daly, J.

This case involves two appeals filed by the defendant. The first was taken from the denial by the trial court, Kelly, J., of the defendant’s motions for contempt and modification of the judgment of dissolution concerning custody, alimony and visitation. The second appeal was taken from the denial by the trial court, Spada, J., of the defendant’s subsequent motion to modify the judgment and his “motion for Yontef-type orders.”

On April 19,1982, a judgment of dissolution of marriage between the parties was rendered which provided in part that custody of the minor child be awarded to the plaintiff wife, Peggy Pisch, subject to the defendant’s right of reasonable visitation. The modification, ordered July 11, 1983, set forth a visitation schedule for the defendant including two nonconsecutive weeks in the summer plus two weekly phone calls. On December 19, 1984, the defendant filed a motion for contempt and a motion to modify the judgment concerning custody, alimony and visitation. Both motions alleged that the plaintiff had removed the child to places unknown, thereby effectively denying the defendant visitation. The motion to modify requested that the defendant be awarded custody. The trial court, Kelly, J., denied both motions, from which order the defendant appealed on March 1, 1985.

While that appeal was pending, the defendant located the plaintiff and child in Florida. As a result, the defendant filed another motion for custody on June 28,1985, claiming that the child was being neglected and was in an improper environment. The defendant also moved for immediate custody by a motion for Yontef-type orders filed July 25,1985. Under the guise of negotiating a settlement, the defendant successfully obtained the physical custody of the minor child. On August 23, 1985, the trial court, Spada, J., denied the defendant’s motion for custody, ordered him to return the child to the plaintiff, modified the visitation schedule and restricted the plaintiff from removing the child from Florida without first notifying the defendant ninety days in advance. The defendant filed his amended appeal from these orders.

The Original Appeal

On November 15, 1985, the trial court, Kelly, J., filed an articulation concerning his custody order which, in its entirety, provided that “[t]he moving party did not present any credible evidence that the plaintiff mother was in contempt of a court order.” The defendant failed to file any motion for further articulation under Practice Book § 3082 which provides in relevant part that “[a]ny motion seeking corrections in the transcript or the trial court record which depend on proof of matters not of record or seeking an articulation or further articulation of the decision of the trial court shall be made in the first instance to the judge of the trial court whence the appeal is taken or the reservation is made. . . .”

A motion for contempt invokes the trial court’s exercise of discretion. Schurman v. Schurman, 188 Conn. 268, 273, 449 A.2d 169 (1982). The burden is on the appellant to ensure that the appellate court is provided with an adequate record to review the claims of error. State v. Conrod, 198 Conn. 592, 597, 504 A.2d 494 (1986); State v. Tyler-Barcomb, 197 Conn. 666, 676, 500 A.2d 1324 (1985). The defendant has failed to present us with a record sufficient to support his claim of contempt against the plaintiff. We find no error, therefore, in the trial court’s refusal to hold the plaintiff in contempt.

The defendant moved for custody alleging that four relocations by the plaintiff within four years, along with the denial of visitation, entitled the defendant to custody since he is a caring father. The most important consideration in matters of custody is always the welfare of the child. Hall v. Hall, 186 Conn. 118, 121, 439 A.2d 447 (1982); Emerick v. Emerick, 5 Conn. App. 649, 659, 502 A.2d 933 (1985). “In making this determination, the trial court is vested with broad discretion which can only be interfered with upon a clear showing that that discretion was abused.” Ridgeway v. Ridgeway, 180 Conn. 533, 541, 429 A.2d 801 (1980); Spicer v. Spicer, 173 Conn. 161, 162, 377 A.2d 259 (1977). “The burden of proving a change to be in the best interest of the child rests on the party seeking the change. . . . Tt is settled that the determination of the custody of a minor child rests largely in the discretion of the trial court, and its decisions cannot be overridden unless it abused its discretion.’ ” Kearney v. State, 174 Conn. 244, 249-50, 386 A.2d 223 (1978). In modification cases, we afford great weight to the trial court’s actions, allowing every reasonable presumption to be made in favor of its correctness, because it is in a better position to assess the personal factors in a domestic relations case such as the demeanor or attitude of the parties at the hearing. McGuinness v. McGuinness, 185 Conn. 7, 13, 440 A.2d 804 (1981).

The defendant claims that he should be relieved of any support payments since he has been denied visitation. “ ‘The duty to support is wholly independent of the right of visitation.’ ” Bozzi v. Bozzi, 177 Conn. 232, 238, 413 A.2d 834 (1979); Raymond v. Raymond, 165 Conn. 735, 742, 345 A.2d 48 (1974). “[T]he plaintiff’s failure affirmatively to keep the defendant informed as to the whereabouts of the child did not terminate the defendant’s duty to support [the child.]” Brock v. Cavanaugh, 1 Conn. App. 138, 142, 468 A.2d 1242 (1984). “Connecticut unequivocally follows the widely established rule that no modification of alimony or support is to be granted unless there has been a showing of a substantial change in the circumstances of either party.” Grinold v. Grinold, 172 Conn. 192, 195, 374 A.2d 172 (1976); see General Statutes § 46b-86 (a). The defendant presented no evidence of his own financial circumstances or that his situation had changed since the entry of the original court order regarding finances. The trial court did not abuse its legal discretion in refusing to modify the custody and concomitant financial awards.

The Amended Appeal

The defendant claims that the trial court, Spada, J., expanded the defendant’s request for a temporary Yontef-type order for custody into a permanent order and that the trial court failed to appoint an attorney to represent the minor child upon the defendant’s request.

The defendant overlooks the fact that in addition to filing a motion for Yontef-type orders for immediate custody, he had also requested a trial on the issue of custody. The trial court indicated that it would consider all matters, including the motions for contempt filed by both parties, because the principal issue was custody of the minor child. The trial court denied the defendant’s motion to modify custody, set up a visitation schedule, kept the unallocated alimony and support order intact, and forbade the plaintiff from removing the child from Florida without giving ninety days notice to the defendant. The defendant was also made responsible for one half of the unreimbursed medical expenses of the child.

“This court has consistently held in matters involving child custody, and, by implication, visitation rights, that while the ‘rights, wishes and desires of the parents must be considered it is nevertheless the ultimate welfare of the child which must control the decision of the court.’ ” Ridgeway v. Ridgeway, supra. Once the issue of custody had been resolved, a visitation schedule and an order for the payment of transportation costs were necessary concomitant orders since the parties are now living hundreds of miles apart as opposed to the ten miles at the time of dissolution. In addition, requiring each party to be responsible for one half of the unreimbursed medical and dental expenses did not amount to an abuse of discretion.

The defendant claims that the trial court erred when it failed to grant his oral motion made at the time of trial for the appointment of an attorney for the minor child. “The purpose of appointing counsel for a minor child in a dissolution action is to ensure independent representation of the child’s interest and such representation must be entrusted to the professional judgment of appointed counsel within the usual constraints applicable to such representation.” Schaffer v. Schaffer, 187 Conn. 224, 225 n.1, 445 A.2d 589 (1982). Whenever child custody is seriously contested, it is preferable to appoint independent counsel. Yontef v. Yontef, 185 Conn. 275, 284, 440 A.2d 899 (1981). “Generally, appointment of counsel for minor children rests within the discretion of the court. See General Statutes §§ 46-43 and 46-47. ... It may be inferred that appointment of an attorney for the child was dispensed with in the interest of speed and efficiency. . . . However, the failure of the court to appoint an attorney was not such a clear abuse of discretion that [a party] would be entitled to reversal on that ground.” Kearney v. State, supra, 251. Here, the age of the child, the arrangements involved and the last minute request were factors properly weighed by the court.

There is no error.

In this opinion the other judges concurred.

       The appeals were filed on March 1, 1985, and September 12, 1985. This court advised the defendant that his second appeal (originally assigned docket no. 4483) would be treated as an amended appeal pursuant to Practice Book § 3062.

        Yontef orders are protective orders rendered by the trial court during the immediate postjudgment period in disputed custody cases to “ensure an orderly transition that protects the primary interests of the children in a continuous, stable custodial placement.” See Yontef v. Yontef, 185 Conn. 275, 291-94, 440 A.2d 899 (1981).

       See footnote 2, supra.


text:
    State of Connecticut v. Joseph DiStefano
    (3004)
    Dupont, C. J., Borden and Daly, Js.
    Argued April 9 —
    decision released June 17, 1986

      James M. S. Ullman, for the appellant (defendant).

      Robert J. O’Brien, assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from a judgment of conviction, following a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). He claims as error (1) the denial of his motion to suppress identification testimony and certain items of evidence which were seized from his residence, and the subsequent introduction of that testimony and those items into evidence at trial, (2) the denial of his motion for judgment of acquittal, and (3) the trial court’s instructions to the jury regarding circumstantial evidence. We find no error. The facts which are pertinent to each issue will be set forth as each issue is discussed.

I

Motion to Suppress and Evidentiary Rulings

The defendant claims that the trial court erred by denying his motion to suppress, inter alia, the testimony of Mary Dube, a witness who had identified the defendant from a photo array as a man she saw leaving the scene of the crime. Dube testified at the suppression hearing that on the morning of August 2, 1982, she walked with her mother to the Jefferson Federal Savings Bank in Meriden. Her mother entered the bank while she remained standing on a nearby street corner. From that vantage point, Dube saw a man running away from the bank carrying loose bundles of money and dropping money as he fled. The man crossed the street, passing within a close distance of where Dube stood, and she saw his face from the right side. She testified that she watched him as he ran for approximately two to three minutes. She described him as a thin white male with dark hair, and approximately five feet five inches tall.

A week later, the police presented Dube with a photo array containing seven or eight frontal facial views of various white males. From that array she selected two photographs, one of which was the defendant’s. She told the investigating officer that she would be able to make a positive identification of the man if she saw a profile view. The officer subsequently showed her additional profile photographs of the defendant, one of which she then positively identified. She testified that she had no doubt that he was the man she saw running away from the bank.

The trial court denied the motion to suppress Dube’s testimony, and her testimony and the photograph were later introduced into evidence at trial. She did not, however, make an in-court identification of the defendant. On appeal, the defendant claims that the trial court erred because the identification process was unnecessarily suggestive and that Dube’s identification was unreliable. We disagree.

“In order to determine whether the identification procedures violated the defendant’s due process rights, a case by case inquiry must be made as to (1) whether the identification procedures were unnecessarily suggestive, and, if so, (2) whether the identification was nevertheless reliable based upon an examination of the totality of the circumstances.” State v. Frazier, 7 Conn. App. 27, 34, 507 A.2d 509 (1986). The defendant bears the burden of making the requisite showings. Id. In this case, his claim falls far short of the mark.

The defendant claims that the investigating officer should have procured and displayed profile photographs of the second individual whose picture Dube also selected from the first array. We need not decide whether showing Dube only the defendant’s profile photographs after her request was unnecessarily suggestive. Even if we assume that it was, it is clear that Dube’s identification of the defendant’s photograph was “made under circumstances carrying sufficient objective indicia of reliability to permit [it] into evidence . . . . ” (Emphasis in original.) State v. Mitchell, 7 Conn. App. 46, 65, 507 A.2d 1017 (1986).

The defendant also claims that the trial court erred by denying his motion to suppress a number of .25 caliber cartridges which were seized from his residence. He claims that the seizure was unlawful and that the cartridges were, therefore, erroneously introduced into evidence at trial. We disagree.

The police obtained a warrant to search the defendant’s premises for a number of items, including a silver plated pistol which allegedly was used in the robbery. In the course of their search, the police located and seized the pistol and a number of .25 caliber cartridges which matched the pistol. The defendant moved to suppress a number of items including the cartridges. The trial court granted the motion as to certain items but later reversed this decision and denied the motion as to the cartridges. The defendant claims that because the warrant only specified that the search pertained to the pistol, the seizure of the cartridges exceeded the scope of the warrant. He also claims that because several witnesses testified that the robber announced after the robbery that the gun was unloaded, the evidence of the cartridges was irrelevant and highly prejudicial. These claims lack merit.

“ ‘ “[W]here a police officer has a warrant to search a given area for specified objects, and in the course of the search comes across some other article of incriminating character, the property is seizable under the plain view doctrine.” ’ ” (Citations omitted.) State v. Pepe, 176 Conn. 75, 79, 405 A.2d 51 (1978). “A plain view seizure is authorized if (1) the police intrusion that leads up to the view is legal, (2) the discovery of the evidence is inadvertent and (3) the police have probable cause to believe there is a reasonable relation between the evidence seized and the criminal behavior under investigation.” State v. Graham, 186 Conn. 437, 443-44, 441 A.2d 857 (1982). The defendant does not challenge the legality of the police intrusion or the inadvertence of the discovery of the cartridges. He claims, however, that the cartridges were not properly seized because they were not articles of an incriminating nature.

This claim is meritless principally because it was merely necessary that the police “have probable cause to believe there is a reasonable relation between the [cartridges] and the [armed robbery] under investigation.” Id. Probable cause was clearly established once the police discovered the cartridges and determined that they matched the pistol which was allegedly used during the robbery. The cartridges, therefore, were properly seized under the plain view doctrine.

The defendant’s alternative claim is that the trial court erred by allowing the state to introduce the cartridges into evidence at trial. In this regard, the defendant claims that the evidence of the cartridges was irrelevant because he was charged with a violation of General Statutes § 53a-134 (a) (4), which is committed if a person “displays or threatens the use of what he represents by his words or conduct to be a pistol. . . or other firearm . . . . ” The defendant asserts that because the essential factual element of the crime charged was whether he represented that the gun was a pistol or other firearm, the cartridges were irrelevant to this factual issue. In addition, he claims that this evidence irreparably prejudiced his defense. We disagree.

“The trial court has broad discretion in ruling on questions of relevancy.” State v. Aspinall, 6 Conn. App. 546, 553, 506 A.2d 1063 (1986). Contrary to the defendant’s argument, it was well within the trial court’s discretion to conclude that the cartridges were relevant and admissible. This evidence was particularly probative of whether the defendant possessed the means to commit the crime charged. See State v. Villafane, 171 Conn. 644, 676, 372 A.2d 82, cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1976). Although “[t]here are situations where the potential prejudicial effect of relevant evidence would suggest its exclusion”; State v. DeMatteo, 186 Conn. 696, 702, 443 A.2d 915 (1982); this is not such a case. The trial court did not abuse its discretion in admitting the cartridges into evidence.

II

Sufficiency of Evidence

We next consider the defendant’s claim that the evidence was insufficient for the jury reasonably to find him guilty of each element of the crime of robbery in the first degree. “When an appeal challenges the sufficiency of the evidence to justify a verdict of guilty, we have a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the verdict. . . We then determine whether ‘ “the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. . . . ” ’ ” (Citations omitted.) State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985).

The state produced twenty-two witnesses, a number of whom testified that they were in or near the Jefferson Federal Savings Bank in Meriden on August 2,1982, when it was robbed. These witnesses consistently described the robber as a white male who met the defendant’s description and testified that he used a silver handgun. He took money from three bank tellers and fled out the side entrance by which he had entered the bank. Bank photos revealed that he was wearing a long sleeved sweater with a dark stripe down the sleeve. Before the robbery, two witnesses, Christine Melzmus and Cindy LaFlamme, had followed a man fitting the description of the robber to an area just behind the side entrance of the bank where he hid behind a bush. They saw him putting on a sweater and identified the sweater on the man in the bank photograph as the sweater they saw. Melzmus recognized the man she saw as “Joe,” a cousin of her former boyfriend. Both Melzmus and LaFlamme identified photographs of the defendant as this man, and Melzmus also made an in-court identification of him.

As previously indicated, Dube identified a photograph of the defendant as the man she had seen fleeing from the bank and dropping money. The robber fled in the same direction as he had entered the bank. Money that was taken during the robbery was found in the intersection where Melzmus and LaFlamme had seen the defendant before the robbery. In addition to the silver handgun and cartridges which were seized from the defendant’s apartment, the police also seized a newspaper clipping of a report of the bank robbery. The clipping was hidden on top of ceiling tiles in a suspended ceiling in one room of the defendant’s apartment. The state also introduced the testimony of the manager of a gun shop that the defendant’s wife had purchased the handgun from that shop.

The defendant produced eight alibi witnesses, six of whom were related to him or his wife. Five of the defendant’s relatives by marriage testified to seeing or talking with the defendant at or about the time of the bank robbery, namely between 11:00 a.m. and noon. The defendant’s landlord and his wife’s employer testified essentially to the same effect. The defendant’s wife testified that the defendant brought her lunch from a fast food restaurant at 12:15 p.m.

The defendant claims that this “barrage of alibi witnesses” outweighed the state’s “inconclusive patchwork of circumstantial evidence.” We disagree. Viewing the evidence in the light most favorable to sustaining the jury’s verdict; State v. Braxton, supra; we conclude that the jury could reasonably have found the defendant’s guilt established beyond a reasonable doubt. Id.

We also disagree with the defendant’s claim that the state failed to produce sufficient evidence from which the jury could find that the gun used by the defendant was a “pistol” within the meaning of General Statutes § 53a-134 (a) (4). In particular, he claims that the state failed to produce evidence from which the jury could find that the barrel of the gun was under twelve inches long. See General Statutes § 53a-3 (18) (“pistol” defined as “any firearm having a barrel less than twelve inches” long). We agree with the state that it was under no obligation to prove, pursuant to General Statutes § 53a-134 (a) (4), that the defendant possessed a pistol. It was sufficient for the state to prove that the defendant “representad] by his words or conduct” that he possessed “a pistol... or other firearm.” General Statutes § 53a-134 (a) (4). Our review of the record indicates that the evidence unequivocally established this element and all other elements of the offense charged. The evidence was sufficient to prove the defendant’s guilt beyond a reasonable doubt, and the trial court did not err by denying the defendant’s motion for judgment of acquittal.

Ill

Jury Instruction

The final claim of error in this appeal is the claim that the trial court erred in its instructions to the jury with regard to circumstantial evidence. The defendant did not take exception to the trial court’s instruction, and he now seeks review of this claim under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1976). This claim, however, does not merit an Evans review.

The challenged portion of the trial court’s instructions pertained to the court’s discussion of the nature and use of circumstantial evidence. The trial court stated, inter alia, that “[circumstantial evidence is not only sufficient but may also be more certain, satisfying and persuasive than direct evidence.” The defendant claims, for the first time on appeal, that the trial court committed reversible error by suggesting that there is a distinction in law between direct evidence and circumstantial evidence. See State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984) (no distinction between direct and circumstantial evidence as far as probative force is concerned). This claim, however, is not “sufficiently similar to the kind of burden-shifting claim for which the Supreme Court has afforded Evans review . . . [such] that we will invoke our ‘principled appellate discretion’ . . . and review it.” (Citations omitted.) State v. Farrar, 7 Conn. App. 149, 153 n.3, 508 A.2d 49 (1986).

The instruction in question did not constitute a failure of the court adequately to define an essential element of the offense. State v. Grant, 6 Conn. App. 24, 27-32, 502 A.2d 945 (1986). At most, the instruction reflects the trial court’s attempt to clarify the principles pertaining to the use of circumstantial evidence for the benefit of a jury of lay persons who may have needed some assistance in applying this commonly used but technically elusive concept. See State v. Farrar, supra 152-56 (conflict in jury instructions re circumstantial evidence discussed). In short, the record does not adequately “ ‘[support] the defendant’s claim that the charge raises a question of fundamental constitutional dimension ....’” (Citations omitted.) State v. Grant, supra, 27. We therefore decline to review it.

There is no error.

In this opinion the other judges concurred.

       The defendant also claims on appeal that the trial court erred in admitting certain hearsay evidence under the business entry rule. See General Statutes § 52-180. We decline to review this claim, however, because it was not included in the defendant’s preliminary statement of the issues as required by Practice Book § 3012. Our limited review of the record to insure that no injustice was done indicates that the trial court’s ruling fully complied with the statutory requirements.