author: O’Connell, J.

text:
    Michael Pilato v. Jatinder N. Kapur et al.
    (8293)
    Bokden, O’Connell and Foti, Js.
    Argued April 10
    decision released July 10, 1990

      Anthony E. Ahern, for the appellants (defendants).

      Melvin J. Silverman, for the appellee (plaintiff).
   O’Connell, J.

The defendants appeal challenging the trial court’s award of prejudgment interest on damages recovered as a result of the defendants’ breach of contract. The first two claims are subsumed under the question of whether the trial court improperly assumed a role belonging to the attorney trial referee. We reverse the trial court’s award of interest.

The plaintiff sued for damages on an oral contract under which he agreed to coordinate and supervise the construction of a house for the defendants. By agreement of the parties, the case was heard by an attorney trial referee, who reported to the court that judgment should enter in favor of the plaintiff for $20,672.06, plus costs. The defendants have not challenged the award of this amount by the court. Rather, the issue before this court arises from the trial court’s award of prejudgment interest.

The attorney referee had refused to award interest on the ground that the “sums alleged due [the plaintiff] were not liquidated.” The trial court sustained the plaintiff’s objection to the attorney referee’s report, determined that the amount due the plaintiff was liquidated and awarded prejudgment interest. On appeal, the defendants assert that the award of interest improperly invaded the province of the attorney referee.

Although the trial court was bound by the attorney referee’s findings of facts; Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn. App. 420, 423, 567 A.2d 1250 (1989); it was not bound by his conclusions of law. Rostenberg-Doern Co. v. Weiner, 17 Conn. App. 294, 299-300, 552 A.2d 827 (1989). Whether the amount involved was liquidated was a conclusion of law, and the court acted properly in correcting that portion of the report involving a misapplication of the law. See A. Secondino & Sons, Inc. v. LoRicco, 19 Conn. App. 8, 10-12, 561 A.2d 142 (1989) (defining liquidated damages).

Interest, however, is an element of damages and, thus, the decision as to whether interest should be awarded is within the province of the trier of fact. Canton Motorcar Works, Inc. v. DiMartino, 6 Conn. App. 447, 464, 505 A.2d 1255, cert. denied, 200 Conn. 802, 509 A2d 516 (1986). Here, the attorney referee, as the finder of fact, should have been allowed to determine whether interest was appropriate. It was improper for the trial court to make this determination and thus invade the factfinder’s province.

When a “court finds that the [referee] has materially erred in his rulings . . . the court shall reject the report and refer the matter to the same or another [referee] for a new trial or revoke the reference and leave the case to be disposed of in court.” Practice Book § 443; see Wilcox Trucking, Inc. v. Mansour Builders, Inc., supra. Once the trial court corrected the attorney referee’s error of law, it should have remanded the matter to the referee for the application of the proper standard. The decision to award interest is “ ‘ “ ‘to be made in view of the demands of justice rather than through the application of any arbitrary rule.’ ” . . . “ ‘The real question in each case is whether the detention of the money is or is not wrongful under the circumstances.’ ” ’ ” (Citation omitted.) Niles v. Niles, 15 Conn. App. 718, 721, 546 A.2d 329 (1988). The person best able to make this equitable determination is the attorney referee who heard the case and thus is most familiar with the facts. Metcalfe v. Talarski, 213 Conn. 145, 160, 567 A.2d 1148 (1989).

The defendants also claim that this objection should have been heard by the same judge who heard an objection to a prior report. This claim has absolutely no merit. Our rules of practice do not require that all motions in a particular case be heard by the same judge. See Texaco, Inc. v. Golart, 206 Conn. 454, 457-58, 538 A.2d 1017 (1988); Breen v. Phelps, 186 Conn. 86, 97-101, 439 A.2d 1066 (1982).

The judgment as to the award of interest only is reversed and the case is remanded to the trial court with direction to remand the matter to the attorney trial referee who heard the case for a determination of whether interest should be included as an element of damages.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    Walter L. Rudewicz v. Marion F. Gagne et al.
    (8450)
    Borden, Foti and Lavery, Js.
    Argued February 27
    decision released July 10, 1990

      Laurence P. Rubinow, with whom, on the brief, was Elliot G. Macht, for the appellant (plaintiff).

      Noah H. Starkey, for the appellees (defendants).
   Foti, J.

The plaintiff commenced this action in a two count complaint. In the first count, the plaintiff claimed to have an easement over a discontinued public highway and alleged that the defendants had obstructed the discontinued road, thus depriving him of his easement rights. In the second count, the plaintiff alleged that he had aquired legal right and title to the discontinued highway by adverse possession. The plaintiff and the defendants filed motions for summary judgment on the plaintiffs complaint. The court granted the defendants’ motion for summary judgment as to the first count and denied the plaintiff’s motion. The plaintiff withdrew his action as to the second count of the complaint and filed this appeal. The plaintiff claims that the court incorrectly interpreted General Statutes § 13a-55. We affirm the trial court’s judgment.

“Summary judgment is a method of resolving litigation when ‘the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ Practice Book § 384.” Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316-17, 477 A.2d 1005 (1984). The party moving for summary judgment bears the burden of proving the absence of a dispute as to any material fact. Id. “The court must view the evidence in the light most favorable to the nonmovant.” Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).

The underlying facts are essentially undisputed. On October 3, 1910, the town of Ashford discontinued a public highway. The discontinued highway runs across the northern border of a tract of land owned by the plaintiff and continues to run through land owned by the defendants. The plaintiff claims that the defendants have wrongfully obstructed his access to this discontinued highway since August, 1986. He further contends that the discontinued roadway provides his only means of ingress and egress to Horse Hill Road, the nearest and most accessible highway to his property. In light of these circumstances, the plaintiff asserts that he has an easement across the discontinued roadway in accordance with General Statutes § 13a-55.

Section 13a-55 provides that “[pjroperty owners bounding a discontinued or abandoned highway, or a highway any portion of which has been discontinued or abandoned, shall have a right-of-way over such discontinued or abandoned highway to the nearest or most accessible highway, provided such right-of-way has not been acquired in conjunction with a limited access highway.” Section 13a-55 was originally enacted in 1959. The dispositive issue in this case is whether § 13a-55 should be applied retroactively. The trial court, in a well reasoned memorandum of decision, concluded that § 13a-55 affects substantive rather than procedural rights and therefore should be applied prospectively. We agree.

Our Supreme Court has consistently held that there is a general presumption that legislation is intended to operate prospectively, and has repeatedly expressed a reluctance to give retroactive application to statutes. Enfield Federal Savings & Loan Assn. v. Bissell, 184 Conn. 569, 571, 440 A.2d 220 (1981); East Village Associates, Inc. v. Monroe, 173 Conn. 328, 331-32, 377 A.2d 1092 (1977). A new provision of the General Statutes, imposing a new obligation on any person or corporation, is construed to have prospective effect; General Statutes § 55-3; unless the legislature clearly and unequivocally intended otherwise. State v. Lizotte, 200 Conn. 734, 741, 517 A.2d 610 (1986); State v. Paradise, 189 Conn. 346, 350-51, 456 A.2d 305 (1983); Hunter v. Hunter, 177 Conn. 327, 331, 416 A.2d 1201 (1979); American Masons’ Supply Co. v. F. W. Brown Co., 174 Conn. 219, 222-23, 384 A.2d 378 (1978).

Statutes are applied retroactively in a very narrow category of cases. Retroactive application is the rule for amending statutes that are procedural in their impact. Enfield Federal Savings & Loan Assn. v. Bissell, supra. An act that has been passed to clarify an existing statute, that is, one that was passed shortly after controversies arose as to the judicial interpretation of the original act, is also to be applied retroactively. Darak v. Darak, 210 Conn. 462, 473, 556 A.2d 145 (1989). All other statutes are applied prospectively unless the legislature expressly specifies the contrary. State v. Lizotte, supra; Sherry H. v. Probate Court, 177 Conn. 93, 411 A.2d 931 (1979).

Before the enactment of § 13a-55, discontinuance of a public highway extinguished both the public easement of travel and the private easement of access along the former road. Antenucci v. Hartford Roman Catholic Diocesan Corporation, 142 Conn. 349, 355-56, 114 A.2d 216 (1955). In 1959, the legislature enacted this section and thus altered the rule of law. Since this 1959 enactment, a town’s discontinuance of a road extinguishes the public easement but a neighboring property owner’s private easment to the nearest or most accessible highway survives. Luf v. Southbury, 188 Conn. 336, 344, 449 A.2d 1001 (1982).

The evidence supporting the fact that § 13a-55 can be applied only prospectively is overwhelming. Clearly, § 13a-55 was a new provision that imposed a new obligation on landowners whose property abutted a discontinued road. Further, the impact of the statute is substantive rather than procedural. Finally, the statute was not enacted to clarify an existing statute. Consequently, we must apply the common law as it existed in 1910, when the road was discontinued.

As noted above, until 1959, title to all land to the middle of the discontinued highway reverted back to, and vested in, each abutting property owner whose land it crossed. Antenucci v. Hartford Roman Catholic Diocesan Corporation, supra, 356; Fuller v. Planning & Zoning Commission, 21 Conn. App. 340, 345 n.6, 573 A.2d 1222 (1990). Neighboring property owners had no right-of-way over the former road because once it was discontinued it was considered private property to which no automatic easement attached.

The plaintiff argues that a plain language reading of § 13a-55, as amended in 1985, supports his argument that the statute should apply retroactively. He points out that in 1985 the legislature added language to the statute indicating that property owners bounding any portion of a highway “which has been discontinued or abandoned”; (emphasis added) Public Acts 1985, No. 85-227; are entitled to a right-of-way across the discontinued road to reach the nearest, most accessible, highway. The plaintiff specifically focuses on the words “has been discontinued,” and argues that this implies a legislative intent to apply the statute retroactively. To support his argument, he cites Schieffelin & Co. v. Department of Liquor Control, 194 Conn. 165, 479 A.2d 1191 (1984).

The dispositive holding in Schieffelin & Co. is that where “a legislative enactment contains language which unequivocally and certainly embraces existing business relationships, there is nothing in [that statute] which would prevent it from . . . operating [retroactively].” Id., 174. In the present case, unlike Schieffelin & Co., the legislative act did not unequivocally embrace existing interests in land or clearly state that the statute was to be applied retroactively. In the absence of such language, there is no alternative but for us to apply this statute prospectively.

Although it is arguable that certain remarks on the floor of the Senate chamber in 1985 can be interpreted to imply that the act could apply retroactively, this would necessitate that we ignore the nature of the 1959 act and would thereby lead us to an absurd result. In 1910, the property rights to the discontinued road became vested in the defendants’ predecessors in title. A vested right is one that equates to legal or equitable title to the present or future enjoyment of property, or to the present or future enforcement of a demand, or a legal exception from a demand made by another. Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 71, 441 A.2d 68 (1981). An enactment cannot be applied retroactively where a vested right intervenes. Id.; see also C.S.E.A., Inc. v. Connecticut Personnel Policy Board, 165 Conn. 448, 454-55, 334 A.2d 909 (1973). We cannot now declare that the defendants’ property rights were invalidated by a statute that was passed nearly fifty years after those rights had vested.

We conclude that the trial court correctly refused to apply § 13a-55 retroactively, and that it properly granted the defendants’ motion for summary judgment.

This judgment is affirmed.

In this opinion the other judges concurred.

       The motions for summary judgment were presented to the court with the parties’ agreement that there was no genuine issue of material fact.

       At the time that summary judgment was rendered, the pleadings had not been closed. The defendants filed a special defense to the first count on January 3, 1990. No reply was filed to that pleading.
      Prior to oral argument in this court, the defendants withdrew their special defense, and the parties agreed that the pleadings were closed and further stipulated that no future claim would be raised in this regard.

       It was conceded by the plaintiff during oral argument in this court that a second issue, dealing with the court’s finding that the plaintiff’s land was not landlocked, was not properly before this court. Neither easement by necessity nor adverse possession is an issue herein.

       The defendant Marion F. Gagne owns land north of the discontinued highway, and the defendants Georgiana F. Gagne, Joseph E. Gagne and Linda G. Gagne own land south of said highway.

       These remarks were as follows: “Passage of this bill would allow the owner of a property which is near but does not directly abut a discontinued or abandoned highway the right of way over such discontinued or abandoned highway to the nearest or most accessible highway. Currently, this right of way is given only to property owners which directly abut the discontinued highway. This bill is aimed at relief for those property owners who now have to travel an inordinate number of miles out of their way to reach their property. Mr. President, if there’s no objection, I move this to the consent calendar.” 28 S. Proc., Pt. 7, 1985 Sess., pps. 2194-95, remarks of Senator Michael L. Morano.


author: Daly, J.

text:
    Lawrence and Memorial Hospital, Inc. v. Zoning Board of Appeals of the City of New London et al.
    (7949)
    Spallone, Daly and Norcott, Js.
    Argued January 2
    decision released July 10, 1990

      Myron B. Bell, for the appellant-appellee (named defendant).

      Timothy D. Bates, for the appellants-appellees (defendant Frances Graham et al.).

      John W. Barnett, with whom was Elizabeth P. Gil-son, for the appellee-appellant (plaintiff).
   Daly, J.

The defendants appeal from the judgment of the trial court sustaining the plaintiff’s appeal from a decision of the named defendant, the zoning board of appeals of the city of New London (board). The trial court’s judgment reversed only that part of the board’s decision sustaining the zoning enforcement officer’s denial of the plaintiff’s application for site plan approval to use a portion of its property for a parking facility on the basis of the plaintiff’s failure to meet the 150 foot frontage requirement for uses within that zoning district. The board claims that the trial court should not have concluded that, by application of § 720B of the zoning regulations of the city of New London, the plaintiff could aggregate noncontiguous frontage from property it owned that is located on two different public streets and in two other zoning districts.

The plaintiff has filed a cross appeal claiming that the trial court should not have sustained that part of the board’s decision that denied the plaintiff’s request for a variance because the hardship of lack of frontage was self-imposed, and that found that the planning and zoning commission’s action to amend its regulations and rezone a portion of property that had less than the required minimum frontage for that new zone did not create a nonconforming lot that entitled the plaintiff to use the lot for any permitted use. We reverse on the appeal and reverse in part on the cross appeal with respect to the denial of a variance.

The property in question consists of a parcel of land that is “split zoned” into three zoning districts. There are approximately 3.3 acres in the institutional zoning district, and of these 3.3 acres there are only twenty-six feet of frontage on Ocean Avenue. The minimum frontage in this institutional zoning district is 150 feet. A ten acre portion of land is located directly behind and to the south of these 3.3 acres. This ten acre portion is in the R-3 multifamily zoning district, and of these ten acres, there are 81.19 feet of frontage on Evergreen Avenue. The minimum frontage in this R-3 zoning district is fifty feet. These thirteen plus acres are known as assessor’s lot number two.

Last, there is a 140 foot deep and 50.12 foot wide portion of land located in the neighborhood business (NB) zoning district. This portion has 50.12 feet of non-contiguous frontage on Ocean Avenue, but this portion is contiguous in the rear with the institutionally zoned portion of the property. The minimum frontage in this NB zoning district is fifty feet. This portion of the parcel owned by the plaintiff is known as assessor’s lot number five. Of these three zoning districts, the only zoning district that permits the use of parking facilities is the institutional zone. The other two zones permit parking only as an accessory use for permitted uses in that district.

The plaintiff acquired the property in December, 1986, from Anthony and Francis Cash. Earlier that year, the plaintiff, acting for the Cashes, sought and obtained approval from the New London planning and zoning commission for an amendment to the zoning regulations to change 4.73 acres of land from R-3 to institutional. Of that 4.73 acres, there was only 141 feet of frontage on Ocean Avenue, twenty-six feet belonging to the 3.3 acres of Cash property, and the remaining frontage belonging to property owned by Amtrak. At the time of the zone change, and at all times thereafter, the minimum frontage for institutionally zoned property was 150 feet. After obtaining the zone change, but before acquiring legal title to the thirteen plus acres of Cash property, the plaintiff applied to the planning commission for a site plan approval to use the institutionally zoned portion of its land for a parking facility. Included in the site plan was a proposal to use the NB portion of the land as a means of access to and from the parking facility. In its application, the plaintiff asserted that it satisfied the 150 foot minimum frontage requirement for uses in the institutional district by aggregating the twenty-six feet of frontage on Ocean Avenue that was part of the institutional district with 50.12 feet of noncontiguous frontage on Ocean Avenue that was in the NB district and 81.19 feet of frontage on Evergreen Avenue that was in the R-3 district.

Before a hearing on the proposed site plan was held, the zoning enforcement officer denied the application on the basis that the plaintiff failed to satisfy the minimum 150 foot frontage requirement of the “Institutional” district. Instead, the zoning enforcement officer told the plaintiff that it would have to obtain a variance from the board before the planning commission could consider approving its site plan. The plaintiff twice appealed unsuccessfully to the board. The plaintiff then obtained legal title to the Cash property previously described, and, on January 12,1987, sought a third ruling from the board. This third ruling is the subject of this appeal.

A public hearing was held on January 29,1987, where the plaintiff claimed that the zoning enforcement officer had erred by not aggregating the frontages to meet the 150 foot minimum frontage requirement. Alternatively, the plaintiff requested that the board grant a variance or find that “the lot having twenty-six feet of frontage in the ‘Institutional’ zone constitutes a nonconforming lot, as defined in the regulations, by virtue of the action of the Planning & Zoning Commission’s changing the zone to ‘Institution’ and may be developed as a non comforming lot.” The board rejected all three claims. Specifically, on the plaintiff’s application for a variance, the board denied the application, finding that the hardship was self-imposed. The plaintiff appealed to the Superior Court.

The court held that the board was incorrect only in determining that the plaintiff could not aggregate the frontages in order to meet the 150 foot frontage requirement. In its holding, the court concluded that the thirteen acres known as assessor’s lot number two was a “through lot” separate from assessor’s lot number five. The court then applied § 720B of the zoning regulations to determine that these two lots became an undivided lot and that under this section, the plaintiff met the required 150 feet of frontage. That section states, “If two or more contiguous lots or combinations of lots or portions of lots in single ownership are of record at the effective date of these regulations, or any amendment thereto, and if all or part of such lots do not meet the requirements for lot frontage, width, or area as established by these regulations, or any amendment thereto, the land involved shall be considered to be an undivided lot for the purposes of these regulations, except as provided in Article VII, Section 720.C herein. No portion of said undivided lot shall be used or sold as a building lot which does not meet lot frontage, width and area requirements established within these regulations. ” (Emphasis added.) The court also ruled that these two lots, now considered to be undivided lot 2-5, would be subject to the emphasized language set forth above. We granted certification on the appeal and cross appeal.

I

The Appeal

The named defendant claims that the trial court should not have (1) held that the 150 foot frontage requirement for development in the institutional zone could be met by aggregating the frontage from the other two zones, (2) held that the property could be used for institutional purposes, (3) found that the property is composed of two lots, and (4) required the merger of two lots under § 720 of the zoning regulations.

We need not decide whether this jurisdiction permits aggregation, nor whether the court should not have applied § 720. Instead, we need look only to the definition of “frontage” given by the New London zoning regulations to find the court’s ruling improper. Section 210 of the zoning regulations defines the term “frontage” as the “linear distance of a lot along a street line.” The adjective “linear” is not further defined, but the common meaning is “of relating to or a line following a straight course .... going in a straight direction . . . .” Webster, Third New International Dictionary. In addition, when defining the word “frontage,” the zoning regulations specifically state that it is measured by the linear distance along a street line, not along one or more street lines. Thus, applying the definition of frontage in § 210 to § 570.6 of the zoning regulations which requires 150 feet of minimum frontage in institutionally zoned property, that frontage must be along one street only.

Accordingly, it was, at least, improper to include the frontage located on Evergreen Avenue because this frontage was located on a second, separate street line. Because it is not possible to include the frontage on Evergreen Avenue when calculating the frontage of the property at issue, the court improperly held that the plaintiff had established the minimum 150 foot frontage requirement for using institutionally zoned property. The plaintiff’s property did not have adequate frontage on Ocean Avenue.

II

The Cross Appeal

A

The plaintiff’s first claim on the cross appeal is that the trial court should not have upheld the board’s finding that the hardship of lack of minimum frontage was created by the plaintiff’s own action. We agree.

Section 1000C of the New London zoning regulations authorizes the board to vary the application of the zoning bylaws or regulations regarding minimum frontage requirements, but specifically prohibits a building or use of land to be “permitted, converted, enlarged or reconstructed for any purpose other than a use which is permitted in the district in which it is located.” New London zoning regulations § 1000. Section 1020C of the zoning regulations provides “[n]o variance shall be granted on any allegation of hardship resulting from an act of the applicant subsequent to the adoption of this regulation, whether in violation of the provisions hereof or not. Before granting a variance on the basis of unusual difficulty or unreasonable hardship, there must be a finding by the Board of Appeals that all of the following conditions exist:

“(1) That if the owner complied with the provisions of these regulations, he would not be able to make any reasonable use of his property.
“(2) That the difficulties of hardship are peculiar to the property in question, in contrast with those of other properties in the same district.
“(3) That the hardship was not the result of the applicant’s own action.
“(4) That the hardship is not merely financial or pecuniary.”

The board specifically found that the third requirement was not met. We turn now to the case law on self-imposed hardships.

“ ‘Where the hardship involved “arises as the result of a voluntary act by one other than the one whom the variance will benefit, the board may, in the sound exercise of its liberal descretion, grant the variance.” Belknap v. Zoning Board of Appeals, 155 Conn. 380, 384, 232 A.2d 922 (1967). Where the claimed hardship arises from the applicant’s voluntary act, however, a zoning board lacks the power to grant a variance. . . . The hardship which justifies a board of zoning appeals in granting a variance must be one that originates in the zoning ordinance . . . and arises directly out of the application of the ordinance to circumstances or conditions beyond the control of the party involved. . . .” (Citations omitted.) Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39-40, 38 A.2d 1186 (1982); see also Aitken v. Zoning Board of Appeals, 18 Conn. App. 195, 205-206, 557 A.2d 1265 (1989).

The narrow issue here is whether the plaintiff’s request for the zone change that rendered its 3.3 acres unusable for any permitted use in the new zoning district is considered a voluntary act sufficient to constitute a self-imposed hardship. We conclude that it does not.

The defendants rely on several cases, including Pollard v. Zoning Board of Appeals, supra, for the proposition that errors in dimensions of parcels within larger lots do not necessarily give rise to a legal hardship. We think these cases are distinguishable.

In Pollard, the hardship of lack of frontage and side-yard setback requirements to the plaintiff’s subdivided lot was caused by a surveying error; it did not arise from the application of the zoning regulations themselves. Id., 41; see also Belknap v. Zoning Board of Appeals, supra, 383 (court upheld denial of applicant’s variance where predecessor in title, without good reason, created an undersized lot); Aitken v. Zoning Board of Appeals, supra (court reversed granting of applicant’s request for variance of frontage requirements where request to subdivide was self-created).

In the present case, the hardship was created by-application of the zoning regulation’s frontage requirement to institutionally zoned property that failed to meet this requirement because of the planning and zoning commission’s enactment of the zone change amendment to the property in question. The planning and zoning commission was not hired by nor under the control of the plaintiff, nor was it the plaintiff’s agent.

We think that the cases of Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 365 A.2d 387 (1976), and Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 429 A.2d 883 (1980), are more on point.

In Chevron Oil Co. v. Zoning Board of Appeals, supra, 150, the court held that a hardship did not result from the applicant’s successful request for a zone change but was caused by the application of a setback regulation to unusually shaped property. Likewise, in the present case, the hardship did not result from the plaintiff’s successful request for a zone change but was caused by application of the frontage regulation; § 570.6; to the 3.3 acres of the plaintiff’s property.

In Johnny Cake, Inc. v. Zoning Board of Apeals, supra, 300-301, the court indicated that “if the hardship is created by the enactment of a zoning ordinance and the owner of the parcel could have sought a variance, then the purchaser has the same right to seek a variance and, if [its] request is supported in law, to obtain the variance. . . . Otherwise the zoning ordinance could be unjust and confiscatory.” (Citation omitted.)

In the present case, the hardship was created by the enactment of a zoning ordinance, namely, the zone change amendment by the planning and zoning commission. Contrary to the defendants’ claim, the plaintiff, as purchaser had the same right to obtain a variance to use these 3.3 acres of land as the legal owner of the property at the time of the zone change. See id. We do not agree with the defendants’ assertion that the inability to use 3.3 acres of land does not amount to being confiscatory because the plaintiff was still able to use about “15 of the 18 acres” [sic] or “about 85 percent” [sic] of its property. As in Johnny Cake, Inc., the plaintiff has a right to obtain a variance to use these 3.3 acres for permitted uses in the institutional zoning district if its request is otherwise supported in law, because the automatic denial renders the zone change amendment unjust and confiscatory.

Accordingly, we find that it was incorrect to conclude that the hardship was created by the action of the plaintiff.

B

The plaintiff’s second claim is that the planning and zoning commission’s zone change amendment created a nonconforming lot that entitled the plaintiff to use the lot for any permitted use. Specifically, it argues that it is entitled to use the 3.3 acres for the permitted use of a parking facility because of the definition of nonconforming lot in § 210 of the zoning regulations. We disagree.

In § 210, a nonconforming lot is defined as “A lot legally existing on the effective date of this regulation or any applicable amendment thereto but which fails by reason of such adoption, revision or amendment to conform to the present district regulation for any prescribed lot requirement (i.e. area, frontage, width or depth).” (Emphasis added.)

The plaintiff focuses only on the word “amendment” but ignores the initial requirement that there be a legally existing lot. There is nothing in the record to establish what constitutes the plaintiff’s legally existing lot.

The plaintiff argues, for the first time on appeal, that the “lot” consisted of either assessor lot 2 or, as referred to and found by the trial court, undivided lot 2-5. Even if all that were true and a legal lot did exist, there is nothing in § 210 that provides that the plaintiff would be entitled as of right to use the 3.3 acres for any permitted use in that zoning district.

Rather, the plaintiff would have to establish that § 720D of the zoning regulations would apply. That section states: “If any nonconforming lot contains an existing conforming use within an existing structure, permitted accessory uses may be erected and any existing conforming structure may be modified, altered, or expanded so long as all new construction complies with all other applicable requirements of these regulations.” The plaintiff never proceeded under this section of the zoning regulations and there is thus no error in this part of the cross appeal.

Reversed on the appeal. Reversed in part on the cross appeal. The case is remanded to the board for a new hearing limited to the issue of whether the plaintiff is entitled to a variance of the frontage requirements for the institutionally zoned portion of his property; see footnote 3, supra; in a manner not inconsistent with this opinion.

In this opinion the other judges concurred.

       In addition to the named defendant, the other original defendants in the case were Mary A. Hodge, Barry V. Connell, Frances Graham and Margante Ann Glidden. Among these individual defendants, the trial court found that only Hodge, Connell and Glidden were aggrieved. The issue of aggrievement has not been appealed.

       We note that the entire Cash property actually consisted of approximately eighteen acres of land before the thirteen plus acres were sold to the plaintiff.

       This part of the cross appeal is limited only to the issue of whether the plaintiff is entitled to a new hearing because of the board’s error in finding that the hardship was self-imposed. The issue of whether the present site plan application will be approved by the planning and zoning commission would be determined at a later time if the plaintiff is granted a variance.
      We note, however, that the present request for a variance includes a variance to permit access over the strip of “NB” zoned land. We conclude that on the basis of the language of § 1000 quoted in the text of the opinion, the board is without power to grant that part of the plaintiff’s request for a variance of the “NB” zoning district because parking facilities are not a permitted use in that district.

       The defendants incorrectly stated these figures in their reply brief. The plaintiff did not purchase the entire eighteen acres of land owned by the Cashes. See footnote 2, supra.


text:
    State of Connecticut v. John Jones
    (8102)
    Borden, O’Connell and Foti, Js.
    Argued April 11
    decision released July 10, 1990

      Jon L. Sehoenhorn, with whom, on the brief, was Cristina Cabral, law student intern, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, scad Michael Pepper, assistant state’s attorney, for the appellee (state).
   Foti, J.

The trial court held a hearing pursuant to General Statutes § 53a-32 and found that the defendant was in violation of the conditions of his probation. It opened and vacated the original judgment of conviction, and rendered judgment imposing the unexecuted portion of the original sentence, a term of imprisonment of five and one-half years. The defendant claims that the court improperly (1) denied his request for a continuance, and (2) imposed his sentence without affording him the right of allocution, that is, without asking him if he cared to address the court personally before his sentence was imposed. We affirm the judgment of the trial court.

On March 25, 1988, the defendant was convicted of possession of narcotics in violation of General Statutes § 21a-279 (a). At the time of sentencing, he admitted that he was in violation of an earlier imposed sentence of probation. The court sentenced him to imprisonment for six years, suspended after six months, followed by a five year probation period. In addition, the defendant received a six month sentence, to run concurrent with the above sentence, for violation of probation. The defendant’s probation was expressly conditioned upon his receiving inpatient drug treatment for not less than one year and an agreement that he would not violate any criminal law of the United States, this state or any other state. On the same day that this sentence was imposed, the defendant reviewed the conditions of his probation with a probation officer and signed a form indicating that he understood his obligations while on probation.

The defendant was released from incarceration on August 10,1988. On September 4,1988, he was arrested on charges of possession of narcotics, possession of a controlled substance with intent to sell within 1000 feet of a school, and disorderly conduct, in violation of General Statutes §§ 21a-279 (a), 21a-278 (b) and 53a-182, respectively. Following these charges, an arrest warrant issued on September 21,1988, charging him with violation of probation pursuant to General Statutes § 53a-32. The defendant was arrested and arraigned on September 27, 1988, for the violation of his probation. At this time, a public defender was appointed. Subsequently, on February 8, 1989, Attorney Herbert Scott filed his appearance on behalf of the defendant.

The court held a probation revocation hearing on March 30, March 31, and April 4, 1989. At that hearing, the court could reasonably have found the following facts. On September 4, 1988, two officers of the New Haven police department, Frank Roberts and Vincent Raucci, were parked in an unmarked car at the corner of Fillmore and Lombard Streets in that city. This particular location has an extensive history of illegal narcotics activity. The officers were there to apprehend Edison Vidro, who was wanted in connection with a shooting. While waiting for Vidro, Roberts observed the defendant approach several vehicles at the corner of Filmore and Pine Streets, hand each driver something, and in turn receive something from each driver. Roberts next observed a white male, known to him to be a heroin addict, approach the defendant and conduct a similar transaction with him. A motor vehicle driven by Vidro then approached the defendant. At this time, the officers drove their vehicle to the defendant’s location. When the defendant observed the officers, he dropped a pink plastic bag on the ground and crouched down behind an oak tree. Raucci proceeded to arrest Vidro, while Roberts seized the bag and arrested the defendant. A field test and subsequent examination of the bag by a state forensic toxicologist determined that the bag contained heroin residue.

The defendant first claims that the trial court abused its discretion by denying his request for a continuance of the probation hearing.

The probation hearing had been scheduled on three dates in the nine weeks preceding March 30,1989. On that day, Scott filed a motion to withdraw “for the reason that the attorney client relationship has broken down irretrievably with the result that it will be impossible to provide an adequate defense for the defendant. In addition, the defendant has arranged for another to represent him in the matter.” Attorney James Swaine addressed the court, stating that he would not file an appearance on the defendant’s behalf unless the continuance was granted. He never filed an appearance or requested a continuance to a specific day. Scott’s motion was denied by the court, and the hearing proceeded.

The determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. State v. Aillon, 202 Conn. 385, 394, 521 A.2d 555 (1987). To establish an abuse of discretion, the defendant must show that denial of the-continuance demonstrably prejudiced his ability to defend himself. State v. Beckenbach, 198 Conn. 43, 52, 501 A.2d 752 (1985); State v. Stanley, 197 Conn. 309, 311-12, 497 A.2d 46 (1985); State v. Marra, 195 Conn. 421, 437-38, 489 A.2d 350 (1985).

It is clear that a defendant in a criminal matter has a constitutional right to the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970); Levine v. Manson, 195 Cohn. 636, 639, 490 A.2d 82 (1985); State v. High, 12 Conn. App. 685, 690, 533 A.2d 1217 (1987), cert. denied, 207 Conn. 801, 540 A.2d 74 (1988). The right to counsel, however, does not include the unbridled right to discharge counsel on the eve of trial; State v. Drakeford, 202 Conn. 75, 83, 519 A.2d 1194 (1987); an unlimited opportunity to obtain alternate counsel; State v. Watson, 198 Conn. 598, 610, 504 A.2d 497 (1986); or the absolute right to counsel of one’s choice that must give way to the need for fair and efficient administration of justice. State v. Beckenbach, supra, 49 n.5.

“The standard of review to be applied when reviewing a denial of a request for alternate counsel is whether the trial court abused its discretion in determining that a factual basis did not exist for granting the request.” State v. High, supra, 690. In the present case we find no abuse of that discretion. The defendant showed no specific prejudice to his defense as a result of the denial of his request for a further continuance. There was no claim that counsel of record was unprepared to go forward. The defendant at no time claimed ineffective assistance of counsel. The court was never informed of the reason for the defendant’s displeasure or dissatisfaction, if any, with his counsel. Further, since no specific date for a continuance was requested, the court could not know when Swaine would be available, thereby making the request for a continuance one for an unspecified duration.

“ ‘It is the province of the trial court to determine whether there is a factual basis for disqualification of counsel. . . . In the absence of a factual record showing an abuse of discretion, the trial court’s failure to permit the withdrawal of counsel is not reversible error.’ ” State v. High, supra, 691, quoting State v. Watson, supra, 610. The court’s action here did not impair the defendant’s ability to defend himself. We find no abuse of discretion.

The defendant next claims that the court should have granted the defendant or his counsel the right of allocution before imposing sentence. This claim is without merit.

At the completion of testimony, and after closing arguments of both counsel, the court issued its ruling, finding that the defendant had violated the terms of his probation. The probation was revoked and the defendant was ordered to serve the remainder of his sentence. The defendant claims that the trial court failed to give him an opportunity to be heard prior to imposing his sentence as set forth under Practice Book § 919, and thus denied him his due process rights.

The defendant failed to raise this claim in the trial court, but seeks appellate review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and the plain error doctrine. Our Supreme Court has recently held that a defendant can prevail on a claim not preserved at trial “only if all the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

The appellant bears the responsibility for providing an adequate record for review of his claim. Practice Book § 4061; Chomko v. Patmon, 19 Conn. App. 483, 488, 563 A.2d 311, cert. denied, 212 Conn. 819, 565 A.2d 539 (1989). “If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.” State v. Golding, supra, 240.

The defendant has failed to establish an adequate record for our review of his claim. He alleges that the court, in exercising its discretion under § 53a-32 (b), deprived him of the opportunity to be heard after the final arguments of both counsel and before the court revoked his probation and reinstated his earlier sentence. The record is devoid, however, of any suggestion that the court acted to prevent the defendant from speaking, or that either the defendant or his counsel wished to speak. In addition, the defendant’s argument, that he was deprived of the opportunity to speak and that anything said after the imposition of sentence would have been fruitless, is unpersuasive.

In the absence of any indication on the record that either the defendant or his counsel or both wished to be heard, we cannot speculate as to what might have been said, or whether any statement made would have affected the reimposition of sentence. Nor can we speculate that the trial judge would not have opened the judgment and reimposed a different sentence if counsel or the defendant had sought and been given permission to address the court. Although the record does show that the court did not ask if anyone wished to be heard, the defendant gave the court no opportunity to grant or deny his request to be heard so as to rectify a sentence that he believed to be too harsh.

Since the first condition under Golding is not met, we decline to review this claim further.

The judgment is affirmed.

In this opinion the other judges concurred.

       For a complete history of the ancient English common law rule of allocution, see State v. Carr, 172 Conn. 458, 473-77, 374 A.2d 1107 (1977).

       The court addressed Swaine concerning his ability to proceed that day as follows:
      “The Court: Mr. Swaine, you’re not in the case at this point. I gather if Mr. Scott is allowed to withdraw and you file your appearance, you’re filing it only on the condition that the case not go ahead today-.
      “Mr. Swaine: That’s correct, Your Honor, and that’s the only thing I want, with the permission of the court, to put on the record. I had represented to Mr. Jones that I would not be willing to file an appearance if it was the court’s position that it go forward. I would simply not be prepared.”

       Scott also reported that Swaine was on jury duty that day, to which the court replied: “We can take care of that.”

       Practice Book § 919 provides in pertinent part: “Before imposing a sentence or making any other disposition after the acceptance of a plea of guilty or nolo contendere or upon a verdict or finding of guilty, the judicial authority shall, upon the date previously determined for sentencing, conduct a sentencing hearing as follows:
      “(1) The judicial authority shall afford the parties an opportunity to be heard and, in his discretion, to present evidence on any matter relevant to the disposition, and to explain or controvert the presentence investigation report or any other document relied upon by the judicial authority in imposing sentence.
      * * *
      “(3) The judicial authority shall allow the defendant a reasonable opportunity to make a personal statement in his own behalf and to present any information in mitigation of the sentence.”

       The court, after reviewing the evidence presented, concluded: “I think the evidence is sufficient, and the standard of proof is reliable and probative evidence. It’s the finding of the court based on the reliable and probative evidence that I’ve heard that you have violated the terms of your probation, the suspension ordered by this court in the other case is revoked, and you are committed to the custody of the commissioner of correction for the execution of the balance of your sentence.
      “Sheriff, take him downstairs.
      “Recess.”


author: Fott, J.

text:
    Juliann Miller v. John Peter Miller et al.
    (8459)
    Borden, O’Connell and Foti, Js.
    Argued April 11
    decision released July 10, 1990

      Robert P. Hanahan, for the appellant (named defendant).

      Dianne M. Anderson, with whom, on the brief, were Melissa A. Granel and Lynne D. Jackson, for the appellee (plaintiff).
   Fott, J.

The named defendant has appealed from a judgment of dissolution of marriage, attacking certain of the financial orders contained in the judgment. We affirm the trial court’s judgment.

The plaintiff and the defendant were married in Dan-bury on February 27, 1954. They lived together for about twenty-four years of their thirty-five year marriage, and have one adult daughter. When the plaintiff and the defendant married they were both employed. In 1968, fourteen years after their marriage, the defendant asked the plaintiff to discontinue her employment outside of their home. She agreed, but continued to pursue a sewing business at home to earn extra money.

In 1959, they jointly purchased a family residence in Brookfield that has a current equity of $175,000. In 1978, the couple applied the plaintiff’s retirement fund toward the purchase of a three-family house in Dan-bury that also has a current equity of $175,000. In addition, the defendant and the plaintiff owned a one-half interest in a cottage in Rhode Island and four- lots in Florida. These properties have current equities of $39,500 and $4000 respectively. The family residence was remortgaged twice to sustain the defendant’s business efforts and once to renovate the three-family house.

The defendant was in the retail auto parts business with his brother, Robert, from 1971 to 1987. During this period, the brothers set up two separate corporations with stores in Danbury and New Milford. They were equal shareholders in the business and joint owners of the real estate upon which their stores were located. The brothers also owned a two-family house on land adjoining the Danbury store. The realty owned by the brothers’ business has a total equity of $625,000. Although no monetary value could be placed on the brothers’ corporations, the trial court found that these auto parts businesses were still viable. The court also found that the defendant regularly and improperly took money from the cash drawer of the business.

In 1979, the defendant filed for dissolution. Although he later abandoned that action, he continued to make regular support payments to the plaintiff until 1987, in accordance with pendente lite orders filed therein. In October, 1987, the defendant permanently left Connecticut to reside in Texas with a woman who had borne his illegitimate son. After the defendant left, he no longer contributed to the plaintiff’s support.

Shortly before he left this state, the defendant executed two quitclaim deeds that were prepared by an attorney at his brother’s direction. These deeds transferred the defendant’s 50 percent interest in both of the corporations and the business real estate to his brother. Relying on the fact that these transfers were made without consideration and on the circumstances surrounding the conveyances, the trial court found, by clear and convincing evidence, that these transfers were fraudulently accomplished in order to deprive the plaintiff of her interest in the marital assets.

The total personal real estate assets of the defendant and plaintiff were valued at $393,500. An equitable one-half interest in the business property amounts to $312,500. Therefore, the total marital assets in real estate amount to $706,000.

The cause of the breakdown of the marriage was assigned to both parties, and neither was awarded alimony. The court awarded the plaintiff the Brookfield residence, the three-family house in Danbury, and the one-half interest in the Rhode Island cottage. This award amounted to $389,500 in real property. The defendant was awarded the four Florida lots. The court also set aside the transfer of the Danbury business property from the defendant to his brother. The court did not choose, however, to set aside the conveyance to the defendant’s brother of either the corporate stocks or the New Milford business real estate. It did, however, order the defendant to pay the plaintiff $125,000 by March 15, 1990. This sum represents an allocation of the marital interest in the business.

The defendant first claims that the court abused its discretion when it assigned a disproportionate share of the marital assets to the plaintiff. The defendant does not challenge the findings of fact. In fact, he concedes that there is sufficient evidence on the record to provide a basis for the findings. He also concedes that the court considered the proper statutory criteria as set forth under General Statutes § 46b-81 (c). He eon-tends, however, that the court failed to weigh the criteria and that it failed to set forth its weighing process as part of its memorandum of decision.

“A judge is presumed to have performed [her] duty properly unless the contrary appears.” Brash v. Brash, 20 Conn. App. 609, 612, 569 A.2d 44 (1990). A trial court must consider a number of factors in distributing the assets of the parties, and it may exercise broad discretion in considering the statutory criteria enumerated in § 46b-81 (c). O’Neill v. O’Neill, 13 Conn. App. 300, 3.12-13, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988). The court need not recite each factor in its decision; Mihalyak v. Mihalyak, 11 Conn. App. 610, 619, 529 A.2d 213 (1987); or give equal weight to each of the criteria; DeVellis v. DeVellis, 15 Conn. App. 318, 322, 544 A.2d 639 (1988); or set forth the weighing process employed by the court when considering all relevant statutory criteria. See, e.g., Brash v. Brash, supra; Debowsky v. Debowsky, 12 Conn. App. 525, 532 A.2d 591 (1987). It is sufficient that the memorandum of decision “at least reflect a proper consideration and weighing of the factors set forth in the statute.” Koper v. Koper, 17 Conn. App. 480, 484, 553 A.2d 1162 (1989).

The memorandum of decision in this case makes it clear that, contrary to the defendant’s claim, the trial court did weigh the statutory criteria, analyze the parties’ assets and explain its reasoning. “ ‘Our case law is clear that a trial court is free to weigh the relevant statutory criteria without having to detail . . . what importance it has assigned to the various statutory factors. . . .’ ” Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1987), quoting Tutalo v. Tutalo, 187 Conn. 249, 251-52, 445 A.2d 598 (1982).

The defendant further claims that the trial court should not have awarded the plaintiff the sum of $125,000 from part of the real estate fraudulently conveyed by the defendant. The defendant concedes that the trial court had the power to set aside the fraudulent conveyance, but argues that the setting of a fixed sum is not the proper remedy. The defendant argues that he no longer has the income to pay this large a sum of money. He suggests that the proper remedy would have been for the court to set aside the conveyances of the corporate stock and the New Milford business property and then award the plaintiff one half of the defendant’s one-half interest in these items.

We note initially that the defendant cites no authority for his assertion of improper remedy. We further note that it was the defendant’s actions that left him jobless, and it was his fraudulent conveyances that forced the court to fashion relief in the manner it did. It seems incongruous that one who complains about an inequitable resolution himself has not appeared before the court with clean hands, and has caused the very type of award that he now seeks to have disturbed. We agree that the trial court could have fashioned the remedy as suggested by the defendant, but that would certainly have caused the plaintiff additional cost and litigation in an action for partition. The court was mindful that the defendant sought to defraud the plaintiff and clearly could have set aside the remaining real estate conveyance and stock transfers. In fashioning the remedy as it did, however, the court placed the burden precisely where it belonged, that is, on the defendant. If he prefers not to sell or finance the Danbury property, it is clear that the defendant’s equity in the New Milford property alone is sufficient to satisfy his obligation to the plaintiff. The court also considered the fact that the businesses were viable and certainly not valueless.

“ ‘The well settled standard of review in domestic relations cases is that the reviewing court will not disturb a trial court order unless there has been an abuse of discretion or unless the finding of the trial court has no reasonable basis in the facts.’ ” Brash v. Brash, supra. The order here was reasonably based on the facts. There was no abuse of discretion.

This judgment is affirmed.

In this opinion the other judges concurred.

       The named defendant’s brother, Robert T. Miller, was also a defendant in this action because the plaintiff alleged a fraudulent conveyance of assets by the named defendant to his brother. Robert T. Miller has not appealed. For purposes of this appeal, only John Peter Miller will be referred to as the defendant.

       A further claim on appeal that the trial court should not have granted the plaintiff an allowance to defend the appeal was withdrawn at oral argument.

       Section 46b-81 (c) provides: “In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”


author: Norcott, J.

text:
    Anna E. Chapin, Town Clerk of New Milford v. Freedom of Information Commission et al.
    (8624)
    Spallone, O’Connell and Nokcott, Js.
    Argued May 4
    decision released July 10, 1990

      Christopher G. Winans, with whom, on the brief, was Richard A. O’Connor, for the appellant (plaintiff).

      Victor R. Perpetua, commission counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellee (named defendant).
   Norcott, J.

The plaintiff appeals from the trial court’s dismissal of her administrative appeal from the determination by the freedom of information commission (FOIC) that she had violated the Freedom of Information Act (FOIA) by failing to provide certain information in the format requested. We reverse the judgment of the trial court.

The facts in this case are not in dispute. The plaintiff, as part of her duties as town clerk, maintains a computer index of the town land records. This index system is licensed to the town under contract from an Ohio corporation. The town clerk enters the daily land record data onto the computer diskette which is sent to the Ohio corporation for editing, analysis and processing. The corporation then returns the diskettes to the town for reuse.

The town clerk also maintains a temporary land records index by creating a daily hard copy printout of the data contained in the diskette. The Ohio corporation prints and delivers a merged year to date hard copy index at the end of each month and an annual hard copy index at the end of each year. These indices replace the temporary index maintained by the clerk. The information contained in these daily hard copy indices is identical to that on the computer diskettes, the only difference being the format.

On June 15,1987, the complainant, George Cuartero, requested copies of the land records index on a computer diskette. At that time, he was invited to inspect and duplicate the hard copy printouts, but was denied access to the alternative format requested.

Cuartero then brought a complaint to the FOIC alleging that the town clerk had violated the FOIA. The commission rendered a decision finding that the town clerk did in fact violate the FOIA and ordering the plaintiff to provide Cuartero with a copy of the land record index on a computer diskette, for which Cuartero was to bear the actual costs.

The plaintiff appealed to the Superior Court from the FOIC’s decision. Following a trial, the court, Schaller, J., upheld the FOIC and dismissed the plaintiffs appeal. This appeal ensued.

The plaintiff does not dispute that the land records index contains public information. The plaintiff claims that the trial court should not have concluded that the FOIA requires disclosure of access to public records in the medium requested. The plaintiff argues that the clear language of the statute requires only that the agency provide the requesting party with a hard copy of the information and not that it produce the information in whatever form requested. The FOIC argues that the language of § l-19a does not limit the form of .copies to paper copies, but rather a “printout” can be in the form of a computer diskette and that it must be provided in that form. We agree with the plaintiff and reverse the judgment.

In reaching its decision, the FOIC found the plaintiff in violation of §§ 1-15 and l-19a of the FOIA. Section 1-15 provides that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.” Section l-19a of the FOIA provides: “Any public agency which maintains its records in a computer storage system shall provide a printout of any data properly identified.” (Emphasis added.)

These sections clearly mandate disclosure of the information, and the plaintiff does not contest that fact. The dispositive issue is whether that disclosure must be made in the form requested. “ ‘The intention of the legislature is found not in what it meant to say, but in the meaning of what it did say.’. . . Where the language of the statute is clear and unambiguous, the courts cannot, by construction, read into statutes provisions which are not clearly stated.” Point O’ Woods Assn., Inc. v. Zoning Board of Appeals, 178 Conn. 364, 366, 423 A.2d 90 (1979); see also Ganim v. Roberts, 204 Conn. 760, 763, 529 A.2d 194 (1987). The words of a statute are to be construed according to their commonly approved usage. Ganim v. Roberts, supra; Bristol v. Vogelsonger, 21 Conn. App. 600, 575 A.2d 252 (1990).

Section l-19a requires that, if requested, the agency must provide a “printout” of the data contained on its computer system. The term “printout” is defined as “the printed output of a computer.” American Heritage Dictionary (2d College Ed.). In its common usage, a computer printout is generally a hard copy of the information contained in a computer system. Further, § l-19a must be read in conjunction with § 1-15, which requires that, upon request, the agency provide a copy of any public record. It is clear from the statutory language that the legislative intent was to provide access to public information. Section 1-15 requires that “copies” of public records be made available and, should an agency attempt to avoid the mandate of the FOIA by housing all of its information in a computer system, § l-19a specifically states that “printouts” be made available. It is clear from this statutory scheme that “printouts” were meant to be the computer equivalent of “copies.”

The FOIA is our “right-to-know” law, providing for disclosure of public information; the act provides a right to inspect. Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 550, 436 A.2d 266 (1980); Gold v. McDermott, 32 Conn. Sup. 583, 586, 347 A.2d 643 (1975). As long as the agency makes its information available for inspection, it is not in violation of the act. Cf. Maher v. Freedom of Information Commission, 192 Conn 310, 472 A.2d 321 (1984) (holding FOIC had authority to order disclosure of information in department of income maintenance (DIM) computer system where the department sought to withhold that information completely).

The FOIC relies on Maher in support of the proposition that the FOIA mandates disclosure in the format requested, but that case is inapposite. In Maher, the court held that the FOIC had the power to order the DIM to produce a computer tape of all public information that it sought to withhold from the public. Id., 316. The DIM argued that the information that it kept was exempt from the disclosure requirement of the FOIA because it contained privileged, nonpublic information. The DIM claimed that the only way it, could disclose the public information sought would be to create a new computer program containing only the public information and that the FOIC could not order it to do so. The DIM argued that “§ 1-19 (a) of the Freedom of Information Act, which requires disclosure of ‘records maintained ... by any public agency,’ should not be interpreted to require a state agency to provide information or records which the agency itself does not have readily available or which it does not maintain in the normal course of its operations.” Id., 315. The trial court held that because the information that was subject to disclosure was being withheld, the DIM was required to make it available, even if that meant creating a new computer program.

Maher is clearly distinguishable from this case. Here, the plaintiff fulfilled her statutory obligation by making the information available to Cuartero in the manner dictated by statute. Cuartero received all of the public information to which he was entitled. Dictation of the format in which that information should be received is not contemplated by this act. To dictate the format is to go beyond the essence of the act, which is to provide for inspection of public records.

The judgment is reversed.

In this opinion the other judges concurred.

       The trial court, Fracasse, J., entered a default judgment for failure to appear against George Cuarftero, the person who filed the complaint with the FOIC.

       A hard copy is a “readable printed copy of the output of a machine, as a computer.” American Heritage Dictionary (2d College Ed.).


author: Barry, J.

text:
    State of Connecticut v. Michael Reid
    (7151)
    Borden, O’Connell and Barry, Js.

      Argued January 19
    decision released July 17, 1990

      Denise M. Bourque and Giovanna M. Tiberii, certified legal interns, with whom were Michael R. Sheldon, and, on the brief, Timothy H. Everett and ToddD. Fer-now, and John H. Welsh, Pierre M. Janvier, CarolynS. Koch, and Julie E. Williams, certified legal interns, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Robert A. Lacobelle, assistant state’s attorney, for the appellee (state).
   Barry, J.

After a trial to a jury on the charges of murder and possession of a pistol without a permit, the defendant was convicted of the lesser included charge of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1) and the original charge of carrying a pistol without a permit in violation of General Statutes §§ 29-35 (a) and 29-37 (b). The defendant claims that the trial court (1) failed to reinstruct the jury on the defendant’s claim of self-defense, and (2) improperly instructed the jury that it could infer a consciousness of guilt in the defendant from his unexplained flight and failed to instruct the jury in strict compliance with General Statutes § 54-84 (b). We affirm the trial court’s judgment.

The jury could reasonably have found the following facts. In the early morning hours of July 28, 1985, in the Father Panik Village housing project, Bridgeport, the defendant fatally shot Kyle Freeman after an argument between the two young men. After the shooting, the defendant left the scene on a bicycle. The following day he surrendered to the Bridgeport police and gave a statement in which he admitted firing the fatal shots, breaking up the handgun and throwing the pieces in a river.

At trial, the state presented two eyewitnesses. According to these witnesses, the defendant ran after Freeman, who was riding a bicycle, and stopped him in the middle of the street. Then, as Freeman held on to the handlebars, the defendant shot him three times, first in the left leg, then in the right foot, and, finally, in the chest.

I

The defendant first claims that the trial court should have reinstructed the jury, in response to an inquiry, that the state had the burden of disproving, beyond a reasonable doubt, the defendant’s claim of self-defense. The note from the jury read as follows: “Request definition of (1) murder; (2) manslaughter first degree, second degree; (3) intentional manslaughter.” The court responded to this inquiry by reinstructing the jury on the elements of the crimes of murder, manslaughter in the first degree with intent to cause serious physical injury, manslaughter in the first degree under circumstances evincing extreme indifference to human life and manslaughter in the second degree. It is not a matter of dispute that the trial court properly instructed the jury, prior to commencement of deliberations, on the law relating to self-defense and justification. Nor is it disputed that following receipt of the jury’s note of inquiry, the court properly reinstructed the jury on the elements of each of the charges mentioned in the note but did not give a reinstruction on the defense of self-defense or justification.

After reinstructing the jury, the trial court indicated “if you need anything additional, just send out another note.” The court then rejected the defendant’s request that it reinstruct the jury on the state’s burden to disprove the defense of self-defense or justification. The jury rendered its verdict approximately thirty-five minutes after being instructed on the elements of the crimes listed in its first note of inquiry.

The defendant relies on State v. Fletcher, 10 Conn. App. 697, 525 A.2d 535 (1987), aff’d, 207 Conn. 191, 540 A.2d 370 (1988), which also involved reinstruction of the jury. In Fletcher, this court stated: “[W]hen the jury requests clarification or rereading of the charges and simultaneously evinces confusion as to the self-defense claim of the defendant, the trial court is obligated to reinstruct the jury on that defense.” Id., 708. In the present case, unlike Fletcher, the jury did not evince confusion as to the claim of self-defense.

The requests that went unanswered in Fletcher specifically called for farther clarification of the law on self-defense. Because the jury in the present case did not ask for a reinstruction on the elements of self-defense or otherwise evince confusion on the law relating to that defense, the trial court had no duty to reinstruct on the defense. The trial court fulfilled its duty under Practice Book § 864 to respond to the jury’s request for additional instructions.

II

The defendant’s second claim is that the court’s initial charge to the jury was defective in two respects. First, because the defendant did not take the stand in this case, he was entitled to a “no unfavorable inference” instruction and the court did not use the exact language set out in General Statutes § 54-84 in giving this instruction. Second, the court’s instruction to the jury concerning the defendant’s unexplained flight from the crime scene violated his privilege against self-incrimination. We reject these arguments.

A

The first part of the defendant’s claim addresses the court’s failure to adhere to the precise language of General Statutes § 54-84 (b). That statute provides: “Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify.” In its charge to the jury, the court stated that “You, as a jury, should draw no adverse inference against the accused merely from his failure to testify.” (Emphasis added.) The defendant claims that the substitution of “adverse” for “unfavorable” and the addition of “merely” were improper. “[A] claim of trial court noncompliance with § 54-84 (b) is reviewable on appeal even though a defendant, as in this case, did not at trial except to the charge as given.” State v. Townsend, 206 Conn. 621, 625, 539 A.2d 114 (1988).

Failure to follow the exact wording of § 54-84 (b) does not require reversal in all circumstances. State v. Boulware, 183 Conn. 444, 441 A.2d 1 (1981). “In cases where a no unfavorable inferences charge was given, but in language deviating slightly from the precise wording of the statute, we have examined the entire charge to see if the words as given were sufficient to satisfy the statute.” State v. Sinclair, 197 Conn. 574, 584 n.11, 500 A.2d 539 (1985). Thus, the trial court’s charge was not rendered defective by the substitution of the word “adverse” in lieu of “unfavorable” or by the addition of the word “merely” to the charge. In State v. Boulware, supra, 447-48, the court held that adding the word “merely” was such a minor departure from the wording of § 54-84 (b) that it did not violate that statute. In State v. Tatem, 194 Conn. 594, 483 A.2d 1087 (1984), the court held that substituting the word “unreasonable” for “unfavorable” rendered the judgment reversible because it changed the meaning of the sentence. Substituting “adverse” for “unfavorable” is not improper, however, because the terms are synonymous and such a substitution does not change the meaning of the sentence.

B

The second aspect of the defendant’s claim is that the court’s instruction to the jury concerning his unexplained flight from the crime scene put the burden of going forward with some evidence on the defendant. The defendant contends that this alleged shifting of the burden violated his privilege against self-incrimination.

The defendant’s claim lacks merit. The case he relies upon, Barnes v. United States, 412 U.S. 837, 846-47, 93 S. Ct. 2357, 37 L. Ed. 2d 380 (1973), expressly held that statutorily created presumptions of fact based on unexplained circumstances do not violate the accused’s privilege against self-incrimination. Moreover, the Barnes case is not on point because the present case does not involve a statute that creates a presumption of fact from unexplained circumstances.

The trial court properly instructed the jury that an inference of consciousness of guilt was permissible from the circumstance of the defendant’s unexplained flight. The instruction was clear, moreover, that the jurors were equally free to determine that the defendant’s flight did not warrant an inference of consciousness of guilt. Evidence of unexplained flight tends to prove consciousness of guilt, and while it does not create a presumption of guilt it may permit an inference of guilt. State v. Piskorski, 177 Conn. 677, 723, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979).

Ill

The defendant contends that the claims discussed in part II, A and B, supra, when considered cumulatively, reveal that the overall impact of the court’s jury instruction was sufficiently prejudicial to deprive the defendant of a fair trial and to entitle him to a retrial. In State v. Holloway, 209 Conn. 636, 652, 553 A.2d 166 (1989), the court held that flight instructions similar to those given in the present case do not violate a defendant’s right not to testify under the fifth amendment to the federal constitution or under General Statutes § 54-84 (b). In light of Holloway, it is clear that the defendant’s claims as to the flight instruction and as to the no adverse inference instruction were separate and distinct claims. For this reason, the defendant’s cause does not benefit from considering the claims in conjunction.

The judgment is affirmed.

In this opinion the other judges concurred.

       Section 54-84 (b) provides in part: “Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify.”

       The jury sent out a second note which read as follows: “Question: If the jury finds the defendant guilty of a lesser charge than murder, how does the foreman deliver the verdict?” The court did not respond to the note, but did explain the procedure to the jury after it came out of deliberations.

       Practice Book § 864 provides: “If the jury, after retiring for deliberations, request additional instructions, the judicial authority, after notice to the parties, shall recall the jury to the courtroom and give additional instructions necessary to respond properly to the request or to direct the jury’s attention to a portion of the original instructions.”

         The following is the relevant portion of the jury charge: “Now, Mr. Reid did not testify in this case and an accused person is under no obligation to become a witness in Ms own behalf. In our law an accused person may testify or not as he sees fit. It is for the state to prove him guilty of the charges and no burden rests upon him in Ms [position] as the accused to prove his innocence. There may be many good and sufficient reasons why the accused has not testified, such as advice of counsel. Therefore, you, as a jury, should draw no adverse inferences against the accused merely from Ms failure to testify.”

       The portion of the charge to the jury relevant to this claim is as follows: “Now, with reference to the question of whether or not the defendant reasonably believed that his action in firing the weapon was justified because he reasonably believed that he was threatened with imminent use of deadly physical force as well as to the question of intent, the state urges that the jury consider the flight of the defendant as evidence of the consciousness of the defendant’s guilt. There is a principle of law that the unexplained flight of a person accused of a crime is a circumstance which when considered together with all of the facts of the case may justify an inference of the accused’s guilt.
      “If you find that the defendant had fled from the scene to avoid detection, you might consider this principle which applies when a defendant does an act or action which one can infer that he attempted to avoid detection or facts that would lead to his conviction as being a consciousness of guilt. Of course, you must first conclude that the defendant fled from the scene; that he undertook actions with the intention of avoiding detection.
      “No direct explanation was offered as to why the defendant left the scene so, therefore, it is your function to determine whether his leaving the scene was, in fact, to avoid detection. In this regard, you may also consider his admitted course of conduct regarding his destroying of the gun and the throwing of the pieces in the river as weighing on the question of the defendant’s consciousness of guilt.
      “Now, these are factors you must consider in determining whether or not you feel warranted in drawing an inference of consciousness of guilt on the part of the defendant since his conduct might also be considered by you as being consistent with innocence.”


text:
    State of Connecticut v. Leroy Harris
    (8101)
    Dupont, C. J., Borden and Daly, Js.
    Argued March 15
    decision released July 17, 1990

      Patricia Buck Wolf, special public defender, with whom, on the brief, was Grace A. Lwppino, certified legal intern, for the appellant (defendant).

      PaulJ. Ferencek, deputy assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, and James Clark, assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, after a jury trial, of three counts of robbery in the first degree, in violation of General Statutes §§ 53a-134 (a) and 53a-8, and sexual assault in the first degree, in violation of General Statutes § 53a-70 (a). He claims that the trial court should not have admitted into evidence a prior written inconsistent statement and an audio tape through a witness other than the non-party declarant. He also claims that he was denied due process of law and a fair trial due to the state’s failure to produce a missing, exculpatory police report. We affirm the trial court’s judgment.

The jury could have reasonably found the following facts. On May 21, 1983, at approximately 1:45 a.m., the defendant and two other persons robbed a victim (VI) in front of 138 Whalley Avenue, New Haven. The two other perpetrators were Jerome Downing and Charles Myers. During that robbery, one of the three displayed a handgun and subsequently stole car keys and $40 in cash from VI. The three then left in a 1973 Chevrolet Impala, a car that VI had borrowed from another person.

Shortly thereafter, two females made a wrong turn onto Hamilton Street, a dead end street in New Haven. As the driver attempted to turn the car around, the vehicle was blocked by a Chevrolet Impala. Downing, armed with a handgun, went to the driver’s side of the vehicle, while the defendant and Myers went to the other side of the car. Downing pointed a gun at the victim on the driver’s side (V2) and ordered that the doors be unlocked. The doors were unlocked and Downing then grabbed jewelry from V2 while the defendant and Myers grabbed jewelry from the female on the passenger’s side (V3). A pocketbook was also stolen. Downing then ordered V2 into the back seat of the vehicle whereupon he sexually assaulted her. Meanwhile, the defendant sexually assaulted V3 in the front seat of the car and Myers waited outside the Impala. Myers, who did not engage in the sexual assaults, then called for his two cohorts. The defendant left the victim’s car and he and Myers left the scene in the Chevrolet Impala. Downing remained in the victims’ car, jumped to the front seat and drove the car to the “Hill” section of New Haven, where he again sexually assaulted V2. Downing then left the car and took off on foot. Following this incident, V2 and V3 returned to Hamilton Street to retrieve lost items. The police had already been notified and were present when the victims arrived. Y2 and V3 were taken to Yale-New Haven Hospital for treatment. Following treatment, they went to the New Haven police department and gave statements. On August 27, 1985, Downing, while under arrest, gave a statement to the police that was tape-recorded and transcribed to writing. In that statement, Downing claimed that the defendant was involved in this incident. The police obtained an arrest warrant and subsequently arrested the defendant.

During the trial, VI identified the defendant as one of the three perpetrators of the robbery against him. Both V2 and V3 also identified the defendant as the person who went to the driver’s side of the car containing the victims and robbed and sexually assaulted V3. The remaining facts pertaining to the trial will be discussed with the respective issues. The jury convicted the defendant and this appeal followed.

I

In his first claim, the defendant contends that the trial court should not have admitted into evidence the audio tape and written statement that was a transcription of the audio tape, because these prior inconsistent statements did not meet the criteria set forth in State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

The following facts are relevant to this issue. During the trial, Downing was called to testify as a state’s witness. He testified that he and two other males participated in the robbery of VI and the robbery and sexual assault of V2 and V3. He named Myers as a second participant on direct examination but testified that he did not know the third male involved, nor did he see him in the courtroom. The state then began its offer of proof on admitting the audio tape and the written transcript into evidence. Downing testified, however, that, even though it may have been his signature on the statement, he had never read the statement and had given it in- order to obtain a better disposition of the outstanding charges against him. He further testified that the police had suggested to him that Harris was involved in the crimes and that he agreed in order to “beat the system.” Neither the written statement nor the audio tape was admitted into evidence through Downing. Instead, the state called Detective John Datillo, a New Haven police officer. Datillo first testified that Downing was not coerced into making the statement. Datillo also testified that he was present when Downing gave his statement through Datillo. The court, over the defendant’s objection, admitted this evidence through Datillo.

The defendant makes a two-part claim that the admission of this evidence violated the rule in State v. Whelan, supra. First, he claims that the written statement and audio tape could not be admitted as substantive evidence because Whelan imposes a duty on the state to conduct extensive cross-examination of the declarant. Second, he claims that Whelan requires that in order for a prior written inconsistent statement to be admitted substantively, it must be admitted through the declarant. We do not agree.

In State v. Whelan, supra, our Supreme Court abandoned the traditional rule on the use of prior written inconsistent statements. Previously, all prior inconsistent statements were admitted into evidence only for impeachment purposes. The Supreme Court modified that rule and permitted the substantive use of prior written inconsistent statements as long as they are written or tape recorded; see footnote 1, supra; signed by the declarant and made with personal knowledge of the facts stated, provided that the declarant testifies at trial and is subject to cross-examination. State v. Whelan, supra, 753; see also State v. Almeda, 211 Conn. 441, 452, 560 A.2d 389 (1989); State v. Wilson, 17 Conn. App. 97, 99, 550 A.2d 21 (1988).

The defendant first argues that the requirement that the declarant be subject to cross-examination imposes a duty on the state to conduct extensive cross-examination of the declarant. This claim has no merit.

The requirement that the declarant be “subject to” cross-examination is not synonymous with imposing a duty on the party presenting the witness to subject the declarant to cross-examination while on the stand. See footnote 2, supra. Although the state in Whelan declared its witness a hostile witness, and proceeded to cross-examine him as such, we read no such requirement from the language in Whelan. In State v. Green, 16 Conn. App. 390, 397, 547 A.2d 916, cert. denied, 210 Conn. 802, 553 A.2d 616 (1988), this court determined that the declarant’s prior written inconsistent statement was admissible as substantive evidence where the declarant, the state’s witness, testified at trial and was subject to cross-examination by the defendant about the contents of the statement.

On the basis of the holding in Green, we conclude that the Whelan requirement that the declarant be subject to cross-examination only requires that the opposing party, not the offering party, have the opportunity to cross-examine the witness. In the present case, once the statements were admitted into evidence, the defendant had the opportunity to recall Downing and to conduct cross-examination. The state was not required to cross-examine its witness.

The defendant also claims that the court should not have admitted this evidence through a witness who was not the declarant. We disagree. Downing testified that he was coerced into making the statement implicating the defendant and that he never read the transcript. Datillo, the state’s witness, was appropriately called to testify that the police did not coerce Downing into making that statement. More importantly, this same witness, through whom the evidence was admitted, testified that Downing made the statement in his presence. We hold that Whelan does not mandate that the declarant be the party through whom the evidence is admitted. The declarant was available to testify and could have been cross-examined following the admission of this evidence. The jury was able to observe and examine the declarant’s demeanor. See State v. Whelan, supra, 755. Further, the evidence was admitted through a witness who had personal knowledge that the declarant made the statement.

II

The defendant next claims that he was denied due process and a fair trial due to the state’s failure to produce a missing, exculpatory police report.

During the trial, Robert Thompson testified that he was the record owner of the Chevrolet Impala that was stolen from VI. He testified that, following the incidents, he searched throughout New Haven for his car and eventually discovered it in the “Hill” section of New Haven. He then testified that he called the police and that they impounded the vehicle overnight and he picked it up the next day. The state called Datillo, and on cross-examination Datillo testified that if the police had recovered a green Impala, then they would have generated a police report. He also testified about police procedure for recovery of stolen cars and cars that have been involved in the commission of a crime. He testified that, although he was not involved in the particular recovery of the Impala, it would have been part of the normal procedure to inspect the vehicle and take fingerprint lifts, if the police were aware that the vehicle has been used in the commission of a crime. He testified that if a vehicle is dusted for fingerprints, a report would be generated.

At the beginning of the next day in court, the defendant moved to dismiss the charges against him, pursuant to Practice Book § 747. He claimed that there were police reports that he should have received that he did not receive, and that the state’s attorney should have known that these reports existed on the bases of information in the affidavit to the defendant’s arrest warrant and the testimony of the state’s witness. The defendant’s initial claim was that statements in a police report that he did not receive, but that were referred to by Datillo in his testimony, were used in preparing the affidavit. In the course of his argument, he raised two subjects for which there could have been missing police reports. One concerned possible inconsistent statements that VI had made to the police as opposed to his testimony. The other was a vague reference to testimony from Thompson that he contacted the police when he discovered his Chevrolet Impala in the Hill section of New Haven following the incidents.

The court denied the defendant’s motion, but permitted him to subpoena the records of the New Haven police for an in camera inspection and granted him a continuance for that purpose.

At the next court date, the state explained that the subpoenaed documents were delivered and inspected by both parties. These documents collectively were called “Court’s Exhibit 2.” The state’s attorney indicated that the state and the defendant stipulated that he would read out loud two sentences from a newly discovered police report in which VI gave an initial description of three robbers that was inconsistent with his testimony.

The state’s attorney then stated, without objection by the defense counsel, that “I think that ends the issue of the motion yesterday concerning discovery.”

On appeal, the defendant claims that despite his request and subpoena for a missing police report concerning the recovery of the Impala, no report was given. He argues that the failure to disclose this report violated his constitutional rights as set forth in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and in violation of General Statutes § 54-86c.

Contrary to the defendant’s claim that he received no police report, the state, on appeal, has shown that a police report made by Officer Kevin Boucher, a New Haven police officer, concerning the recovery of the Impala was included in Court’s Exhibit 2.

In that report there is an indication that the car was “towed for processing.” There is no indication in that report, or in this record, that fingerprints were lifted from the vehicle at issue. Further the defendant presented no testimony that at the time the car was recovered, the police were aware that it was used in the commission of a crime. The defendant, therefore, has not established that there was another police report or missing parts of Boucher’s report concerning the recovery of this vehicle that should have been disclosed. The defendant’s only claim is that he never received a police report concerning the recovery of the Impala. The record shows that he did.

The judgment is affirmed.

In this opinion the other judges concurred.

       In State v. Whelan, 200 Conn. 743, 754 n.9, 513 A.2d 86 (1986), the court also said that its rule would apply to tape recorded statements, such as the audio tape in this case, because they possess the same indicia of reliability.

       In his brief, the defendant mischaracterizes this requirement by asserting that Whelan requires that the declarant be subjected to cross-examination, rather than subject to cross-examination. For the reasons set forth in the opinion, this is a complete mischaracterization.

       “This statute ‘reflects] the constitutional obligation of a prosecutor to disclose all material evidence favorable to an accused in his possession, an obligation that exists without statutory . . . mandates.’ State v. Packard, 184 Conn. 258, 277, 439 A.2d 983 (1981). Therefore, if the state’s constitutional duty to disclose exculpatory evidence pursuant to Brady has not been violated, then neither has § 54-86c been violated.” State v. Shannon, 212 Conn. 387, 396 n.6, 563 A.2d 646 (1989).


author: Cretella, J.

text:
    Winifred E. Stephens v. Rollie D. Stephens
    (8272)
    Foti, Cretella and Landau, Js.
    Argued May 9
    decision released July 17, 1990

      Gary B. Traystman, for the appellant (defendant).

      Linda L. Mariani, with whom, on the brief, were Carolyn O. Brotherton and Brian LeClair, for the appellee (plaintiff).
   Cretella, J.

In this appeal from the judgment dissolving the marriage of the parties, the defendant asserts an abuse of judicial discretion by the trial court relative to its awards of alimony, property and attorney’s fees.

The plaintiff filed this action on September 20,1988, seeking dissolution of the parties’ thirty year marriage on the ground of irretrievable breakdown. On October 4,1988, a full hearing on the merits was held before Hon. Eli L. Cramer, state trial referee, sitting as the trial court. By memorandum of decision filed July 18, 1989, the court concluded that the marriage of the parties had broken down irretrievably and entered the following orders, among others: (1) the defendant was awarded $35,000 without interest from the marital residence, $12,000 to be paid within three years of the dissolution and the remainder to be paid on the plaintiff’s death, remarriage or sale of the residence; (2) the defendant was held responsible to pay debts incurred after the dissolution papers were served; (3) the defendant was to maintain medical insurance for the plaintiff for three years; (4) the plaintiff was to receive 40 percent of the defendant’s military pension as a property settlement; (5) the plaintiff was to receive annual alimony payments of $1; and (6) the defendant was to pay the plaintiff’s attorney’s fees.

At trial, both the plaintiff and the defendant testified concerning the causes of the marital breakdown, their occupations and incomes, and their respective contributions to the acquisition and preservation of the marital residence. Additionally, each party filed detailed financial affidavits, which the court considered.

The plaintiffs contribution to the household consisted mainly of her work in caring for the home and the five children born of the marriage, but, in the four years immediately prior to the dissolution, she earned $75 per week as a housecleaner. The defendant earned approximately $546 per week as a United States postal employee. He also received roughly $1212.89 per month through his army pension. The plaintiff and her son offered testimony that the primary cause of the breakdown consisted of the defendant’s physical and emotional abuse of his wife and children. In a motion for articulation, the defendant asked whether the breakdown of the marriage resulted from the fault of either party and the court responded that fault existed on the part of the defendant.

The evidence before the trial court addressed all areas of consideration required under General Statutes §§ 46b-81 and 46b-82. The gravamen of the defendant’s claim concerning the orders rendered as part of the dissolution judgment is that the trial court abused its discretion by failing to consider all of the statutory criteria. We disagree. In its memorandum of decision the court stated that “[i]n making these awards, the court has taken into consideration the appropriate provisions of §§ 46b-40 through 46b-87 of the General Statutes.” “The court was not obligated to make express findings on each of the statutory considerations.” Dubicki v. Dubicki, 186 Conn. 709, 716, 443 A.2d 1268 (1982).

The defendant claims that each of the six orders of the trial court mentioned above constitutes an abuse of judicial discretion. He is clearly dissatisfied with the distribution of assets and seeks to have this court retry the case and substitute its judgment for that of the trial court. Our review reveals that the trial court’s orders are not the result of incorrect applications of the law and that they are supported by the evidence. See Weiman v. Weiman, 188 Conn. 232, 235, 449 A.2d 151 (1982). We find no abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.