author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. KENYA OMARI BROWN
    (13431)
    Dupont, C. J., and Lavery and Spear, Js.

      Argued October 25, 1995
    decision released March 5, 1996

      Robert Sullivan, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John C. Smriga, assistant state’s attorney, for the appellee (state).
   SPEAR, J.

The defendant was convicted, after a jury trial, of attempted assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a) (1). On appeal, the defendant claims that the trial court improperly (1) deprived him of his statutory and constitutional rights to a speedy trial, (2) excluded as evidence the death certificate of a critical witness, and (3) allowed inflammatory and prejudicial rebuttal testimony of an incompetent witness. We disagree with the defendant’s claims and affirm the judgment of the trial court.

The jury reasonably could have found the following relevant facts. On January 9, 1993, the victim, Vincent Broadnax, went to his second floor bedroom to gather his belongings and to move them to an apartment that he had just rented. The victim shared a kitchen, living room, and bathroom with Yolanda Zayas, her five children, and her aunt, Odella Zayas, in the two-family dwelling. When the victim discovered that his clothes were missing, he began to question Odella Zayas. The defendant was in the apartment and threatened to shoot everybody if the victim continued making noise. After the victim stated that the defendant would not shoot anyone, the defendant ran into the victim’s room and shot him with a sawed-off rifle. The bullet grazed the victim’s upper right thigh. When the victim ran out of the house, the defendant followed and fired another shot that passed completely through the victim’s thigh. Bridgeport police officer James Kirkland arrived at the scene as the victim was being transported to a hospital. Kirkland spoke to the defendant who stated that the assailant had fled down the street.

A few days after the shooting, the victim spotted the defendant in a Bridgeport courthouse. The victim telephoned the police station and then notified the state’s attorney’s office. Kirkland arrested the defendant in the courthouse shortly thereafter. Additional facts will be provided where relevant to a specific claim.

I

The defendant first claims that he was denied his statutory right to a speedy trial. We are unpersuaded.

The defendant was arrested on January 14, 1993, and the information was filed on January 15, 1993. Pursuant to General Statutes § 54-82m and Practice Book § 956B, the defendant, on September 14, 1993, moved for a speedy trial claiming that he had been incarcerated continuously for eight months since his arrest.

Section 54-82m grants a statutory right of speedy trial to defendants in criminal cases. This section authorizes the judges of the Superior Court to promulgate rules “to provide a procedure to assure a speedy trial.” In accordance with this mandate, the judges of the Superior Court promulgated Practice Book §§ 956B through 956F. Section 956B (b) (1) provides that the trial of a defendant charged with a criminal offense after July 1, 1985, “shall commence within eight months from the filing of the information or from the date of the arrest, whichever is later, if . . . the defendant has been continuously incarcerated in a correctional institution of this state pending trial for such offense . . . .”

On October 13, 1993, the trial court informed the defendant that his trial would not commence until his counsel had completed a trial that had already begun. On October 15, 1993, the defendant moved to dismiss his case pursuant to Practice Book § 956D and General Statutes § 54-82m. The trial court denied the motion because the defendant’s attorney was unavailable. Despite the passage of thirty days between the filing of the motion for speedy trial and the commencement of the trial, the court stated that it could not “read a statute in strict legal technicalities.” The court further opined that it would be “unreasonable to say that [the statutory language] is a mandatory ‘shall’ with no exceptions,” and that any attempt to commence the trial within thirty days from the filing of the motion by appointing new counsel for the defendant would “violate his right to have a fair trial and to have the effective assistance of counsel.” The trial commenced on October 25, 1993. Pursuant to § 956D, the information shall be dismissed with prejudice if the defendant is not brought to trial within eight months and a trial is not commenced within thirty days of the filing of a motion for a speedy trial, provided, however, the motion is filed “at any time after such time limit has passed . . . .” Accordingly, “[i]n order for a motion for a speedy trial to be proper, it must be filed after the running of the requisite time period for commencing a trial.” (Emphasis added.) State v. Green, 38 Conn. App. 868, 874, 663 A.2d 1085 (1995); State v. Charlton, 30 Conn. App. 359, 363, 620 A.2d 1297, cert. denied, 225 Conn. 922, 625 A.2d 824 (1993).

In the present case, because the information was filed on January 15, 1993, the eight month period expired at the end of September 14, 1993. The earliest time, therefore, that the defendant could have properly filed his motion for speedy trial was September 15, 1993. Because the defendant filed his motion on September 14,1993, his motion was premature and, thus, improper. As a matter of law, it could not be granted.

The trial court did not rule on this ground and neither party briefed or argued this issue. This, however, does not preclude us from affirming the trial court’s decision on this ground. “ ‘Where the trial court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the trial court’s action if proper grounds exist to support it.’ ” Kelley v. Bonney, 221 Conn. 549, 592, 606 A.2d 693 (1992), quoting Morris v. Costa, 174 Conn. 592, 597-98, 392 A.2d 468 (1978). Accordingly, despite the trial court’s reliance on mistaken grounds in reaching its decision to deny the motion to dismiss, we affirm the result because the motion was premature.

II

The defendant claims next that he was denied his state and federal constitutional rights to a speedy trial. We disagree.

The defendant’s sole argument in support of his claim is that he was prejudiced by the death of an allegedly critical defense witness, Yolanda Zayas. While we agree that the death of a defense witness creates prejudice to a defendant, we do not focus solely on prejudice in evaluating the defendant’s claim. Instead, we must employ the balancing test formulated by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), to determine whether the defendant has been denied his right to a speedy trial. That test balances the following factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) the prejudice to the defendant. Id., 530. These factors are not mutually exclusive but, instead, “must be considered together with such other circumstances as may be relevant.” Id., 533; see also State v. Toste, 198 Conn. 573, 590, 504 A.2d 1036 (1986). We will address each of the factors in turn.

“The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiiy into the other factors that go into the balance.” Barker v. Wingo, supra, 407 U.S. 530. Our courts have held that “[although nine months is not an overwhelming period of time [to be incarcerated before trial], it is of such length that there is a necessity for inquiry into the other factors that go into the balance.” State v. Brown, 172 Conn. 531, 536, 375 A.2d 1024, cert. denied, 434 U.S. 847, 98 S. Ct. 153, 54 L. Ed. 2d 114 (1977). Because the defendant in the present case was incarcerated for over nine months from the time of his arrest to the commencement of his trial, we must now address the remaining Barker factors.

In examining the reason for the delay, we focus on whether the state was making a “deliberate attempt to delay the trial in order to hamper the defense” or whether there existed a “valid reason . . . [that] should serve to justify appropriate delay.” Barker v. Wingo, supra, 407 U.S. 531. The trial court delayed the defendant’s trial until the defendant’s counsel completed another trial. Soon after the defendant’s counsel had completed that trial, the defendant’s trial began. We conclude that the trial court had a valid reason to delay the defendant’s trial. While the court could have appointed new counsel for the defendant and commenced the trial immediately, that option would in all likelihood have deprived the defendant of his constitutional right to effective assistance of counsel.

In addressing the third Barker factor, we note that the defendant, by motion and by oral demand to the trial court, asserted his right to a speedy trial. “The defendant’s assertion of his speedy trial right ... is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.” Id., 531-32.

We last address the prejudice to the defendant caused by the delay in commencing the trial. The defendant bases his argument on the death of one of his witnesses. He claims that Yolanda Zayas was an eyewitness to the shooting and would have testified that someone other than the defendant shot the victim. The defendant further claims that this witness would have provided relevant testimony as to why the defendant did not identify the person he claimed to be the actual shooter when questioned by the police. His claim of prejudice rests solely on his bare, unsupported assertions of what Yolanda Zayas would have said. We do not know what weight, if any, the trial court gave to the defendant’s testimony on this issue. We do know that the trial court did not consider it to be sufficient, in and of itself, to warrant a dismissal.

“If witnesses die . . . during a delay, the prejudice is obvious.” Id., 532; State v. Morrill, 197 Conn. 507, 527, 498 A.2d 76 (1985). While we agree that the death of a witness may cause some prejudice, the existence of such prejudice will not automatically entitle the defendant to a dismissal. “[This factor has] no talis-manic qualities; courts must still engage in a difficult and sensitive balancing process.” Barker v. Wingo, supra, 407 U.S. 533.

The prejudice caused by the death of Yolanda Zayas and the defendant’s assertion of his speedy trial right must be counterbalanced against the length of the defendant’s incarceration and the reason for the delay. We conclude that the defendant’s incarceration for a period of nine months is not extraordinary, and that there existed a valid reason for delaying the trial. These factors outweigh the other factors of Barker, and, therefore, the defendant was not deprived of his constitutional right to a speedy trial.

III

We next address the defendant’s claim that the trial court improperly excluded the death certificate of Yolanda Zayas. The defendant claims that the death certificate would have “corroborate [d] the death of this significant witness.” The record reveals, however, that the defendant and the victim both testified as to the death of the witness and the date of that death. The state did not refute this testimony at trial. The introduction of the death certificate would, therefore, have been cumulative. The exclusion of “[e]vidence that is merely cumulative cannot constitute reversible error.” Schnabel v. Tyler, 32 Conn. App. 704, 712, 630 A.2d 1361 (1993), aff'd, 230 Conn. 735, 646 A.2d 152 (1994).

IV

The defendant last claims that the trial court improperly permitted the rebuttal testimony of Odella Zayas. In his brief, the defendant asserts that the testimony of Odella Zayas was improper because (1) it served to inflame the jury and to prejudice the defendant, (2) it was outside the scope of proper rebuttal testimony, (3) it was improper character and bad act evidence, (4) it was inconsistent with the state’s proffer, and (5) the witness was incompetent to testify. The defendant further claims that the trial court should have granted the defendant’s motion for a mistrial based on the claimed improper testimony of Odella Zayas. Our rules of practice and well established precedent preclude us from reviewing this evidentiary claim.

“When raising evidentiary issues on appeal, all briefs should identify clearly what evidence was excluded or admitted, where the trial counsel objected and preserved his rights and why there was error. . . . The bare assertion in a brief that the evidence was improperly [admitted], coupled with transcript page references, will not suffice. . . . It is our strong policy that rulings claimed as evidentiary errors to be reviewed by this court be provided and printed in the briefs as required and outlined by the Practice Book.” (Citations omitted; internal quotation marks omitted.) State v. Russell, 29 Conn. App. 59, 62-63, 612 A.2d 809, cert. denied, 224 Conn. 908, 615 A.2d 1049 (1992).

The defendant offers no authority or legal analysis in support of his assertions. In addition, the defendant’s brief fails to pinpoint where in the transcript his counsel objected to the testimony of Odella Zayas and preserved his appellate rights. The defendant does cite to pages in the transcript, but the references were not sufficient for our meaningful review. Consistent with our rules of practice and our precedent, we therefore decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 956D provides in pertinent part: “If the defendant is not brought to trial within the applicable time limit . . . and ... a trial is not commenced within thirty days of the filing of a motion for speedy trial by the defendant at any time after such time limit has passed, the information shall be dismissed with prejudice, on motion of the defendant filed after the expiration of such thirty day period. . . .”

       In determining the expiration of the eight month period, we are guided by the statutory definition of “month” and our Supreme Court’s decision in Krajniak v. Wilson, 157 Conn. 126, 130, 249 A.2d 249 (1968). General Statutes § 1-1 (i) provides that “[t]he word ‘month’ shall mean a calendar month . . . .” “[I]f the first day of the period is other than the first day of the month, such as July 5 in the present case, the period of one month would terminate a.t the end of August 4 rather that at the end of August 5. The same rule applies where the period, as here, consists of several months.” Krajniak v. Wilson, supra, 130; see also Infante v. Porath, 29 Conn. App. 465, 468, 615 A.2d 1073 (1992).

       As the motion was improper, the trial court should have dismissed it. In the circumstances of this case, we discern no practical difference between a denial and a dismissal.

         See U.S. Const., amend. VI; Conn. Const., art. I, § 8. The defendant offers no separate analysis of his state constitutional claim, and we therefore chose not to consider it. See State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992).

       Yolanda Zayas died two weeks prior to the commencement of the defendant’s trial.

       See Barker v. Wingo, 407 U.S. 514, 532, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); State v. Morrill, 197 Conn. 507, 527, 498 A.2d 76 (1985).

       Practice Book § 4065 (d) (3) provides in pertinent part: “When error is claimed in [an evidentiary] ruling in a court or jury case, the brief or appendix shall include, where appropriate . . . the question or offer of exhibit; the objection and the ground on which it was based; (he ground on which the evidence was claimed to be admissible; the answer, if any; [and] the ruling . . . .”


source: Caselaw Access Project

author: LAVERY, J.

license: Public Domain

text:
    CONNECTICUT NATIONAL BANK v. L AND R REALTY ET AL.
    (14968)
    Dupont, C. J., and Foti, Lavery, Landau, Heiman, Schaller, Spear and Hennessy, Js.
    Argued November 29, 1995
    decision released March 5, 1996

      Ann Siczewicz, Jeffrey A. Fillman, and Robert M. Dombroff in support of the motion.

      Robert G. Skelton, in opposition to the motion.
   LAVERY, J.

The plaintiff in this foreclosure action moves to dismiss the defendants’ appeal for lack of a final judgment on the basis of the trial court’s failure to set law days. We agree with the plaintiff that the setting of law days is necessary for a final judgment to exist in a strict foreclosure action and therefore grant the motion to dismiss.

The following facts are necessary for the disposition of this motion. L & R Realty, a general partnership, executed a note and mortgage to the plaintiff. Following L & R Realty’s default on the note, the plaintiff brought this action to foreclose its mortgage. Also named as defendants were Raymond LeFoll and Gail LeFoll, who each personally guaranteed payment of the note to the plaintiff. The defendants jointly filed an answer, special defenses and counterclaims against the plaintiff. The trial court rendered judgment in favor of the plaintiff as to the defendants’ counterclaims and ordered strict foreclosure of the mortgage, determined the amount of debt and awarded attorney’s fees and an appraisal fee. This appeal followed. Thereafter, the plaintiff moved the trial court to set law days, which motion the court denied.

“Generally, foreclosure means to cut off the equity of redemption, the equitable owner’s right to redeem the property. See Barclays Bank of New York v. Ivler, 20 Conn. App. 163, 166, 565 A.2d 252, cert. denied, 213 Conn. 809, 568 A.2d 792 (1989); Black’s Law Dictionary (6th Ed. 1990); J. Durham, ‘In Defense of Strict Foreclosures :ALegalandEconomic Analysis of Mortgage Foreclosure,’ 36 S.C.L. Rev. 461, 473 and n.76 (1985). The equity of redemption can be cut off ... by strict foreclosure. Barclays Bank of New York v. Ivler, supra, 166; Black’s Law Dictionary (6th Ed. 1990); J. Durham, supra, 36 S.C.L. Rev. 473 and n.76.” Madison Hills Ltd. Partnership II v. Madison Hills, Inc., 35 Conn. App. 81, 90, 644 A.2d 363 A.2d (1994).

“Under our law, an action for strict foreclosure is brought by a mortgagee who, holding legal title, seeks ... to foreclose an equity of redemption unless the mortgagor satisfies the debt on or before his law day. Cook v. Bartholomew, 60 Conn. 24, 27, 22 A. 444 (1891).” (Emphasis added.) Barclays Bank of New York v. Ivler, supra, 20 Conn. App. 166. Without the setting of law days, the time for redemption has not been limited and the parties’ rights remain unconcluded as to that issue. As a result, a strict foreclosure judgment that is silent as to law days cannot be final for the purpose of appeal. See State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983).

“In a foreclosure action, the judgment must either find the issues for the defendant or determine the amount of the debt, direct a foreclosure and fix the law days. See Zinman v. Maislen, [89 Conn. 413, 416, 94 A. 285 (1915)].” Morici v. Jarvie, 137 Conn. 97, 103, 75 A.2d 47 (1950). A strict foreclosure judgment must also determine the issue of attorney’s fees as they are included as part of the total debt. See Federal Deposit Ins. Corp. v. Voll, 38 Conn. App. 198, 201, 660 A.2d 358, cert. denied, 235 Conn. 903, 665 A.2d 901 (1995); D. Caron, Connecticut Foreclosures (2d Ed. 1989) § 14.08, p. 225.

Because the court’s decision in this case does not include the setting of law days, it is not a final judgment for the purpose of appeal. “The lack of a final judgment is a jurisdictional defect that requires that we dismiss the appeal.” Essex Savings Bank v. Frimberger, 26 Conn. App. 80, 81, 597 A.2d 1289 (1991), citing Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 86, 495 A.2d 1063 (1985).

The plaintiffs motion to dismiss the appeal is granted.

In this opinion the other judges concurred.

       Connecticut National Bank, which operated as Shawmut Bank Connecticut, N.A., at the time of this appeal, was the original plaintiff to this action.


author: FOTI, J.

text:
    HELEN PHINNEY, ADMINISTRATRIX (ESTATE OF DONALD AGNELLI) v. GENE A. CASALE ET AL.
    (13579)
    O’Connell, Foti and Hennessy, Js.
    Argued November 28, 1995
    decision released March 5, 1996

      Kenneth J. McDonnell, with whom, on the brief, was Lorri A. Massa, for the appellant (plaintiff).

      Andrew J. O’Keefe, with whom was Maureen Sullivan Dinnan, for the appellees (defendants).
   FOTI, J.

This is an appeal from the judgment rendered after the trial court directed a verdict in favor of the defendants and denied the plaintiffs motion to set aside that directed verdict. The plaintiff alleges that the trial court improperly (1) removed the question of negligence from the jury and directed a verdict in favor of the defendants and (2) conducted a settlement conference prior to granting the defendants’ motion for a directed verdict. We agree that the trial court improperly directed a verdict in favor of the defendants and reverse the judgment of the trial court.

The plaintiff, Helen Phinney, commenced this action in her capacity as administratrix of the estate of her deceased brother, Donald Agnelli, against the defendants, Gene A. Casale and Aircraft Hardware, Inc. Among other things, the complaint alleged that the vehicle operated by Casale and owned by Aircraft Hardware, Inc., struck the plaintiffs decedent while he was riding his bicycle on Route 154, a public highway in Chester, knocking him to the ground and causing injuries, including the loss of his right arm. The complaint alleged that “[t]he plaintiffs decedent’s injuries were caused by the carelessness and negligence of the defendant Casale in one or more of the following ways: (a) In that he failed to keep a proper and reasonable lookout for pedestrians and bicyclists along or upon the highway; (b) In that he failed to apply his brakes in time or with sufficient force to avoid a collision, although by a proper and reasonable exercise of his faculties, he could and should have done so; (c) In that he failed to keep his vehicle under proper and reasonable control; (d) In that he failed to turn his motor vehicle sufficiently to the left so as to avoid a collision, although by a proper and reasonable exercise of his faculties, he could and should have done so; (e) In that he allowed four (4) persons to occupy the front seat of the pick-up truck when doing so unreasonably interfered with his ability to safely operate and stop his vehicle; (f) In that he violated [General Statutes] § 14-257 by having in such pick-up truck more than the number of persons for whom reasonable and safe seating space is provided; (g) In that he was operating his vehicle at an unreasonable rate of speed having due regard for the traffic on and near the road, the width of the road and the intersection of streets and parking areas; (h) In that he was operating his vehicle with object(s) or material placed, displayed, or affixed in such a manner as to obstruct or reduce his clear and full view of the road ahead of him in violation of [General Statutes] § 14-99 g (b).”

The jury could reasonably have found the following facts. On September 16, 1991, Agnelli, a sixty-nine year old man who was mildly retarded, was riding his bicycle in a southerly direction on the left side of Route 154 in Chester. At that time and place, Casale was operating a pickup truck in a northerly direction at a speed of approximately thirty to thirty-five miles per hour. In the cab of his vehicle was an adult female and two children, ages one and three. Some items were hanging from the rearview mirror.

As Agnelli and Casale approached one another, Casale was looking straight ahead, with clear visibility and fair weather. Casale had a clear view of the road, which was straight, from at least 500 feet prior to the point of impact. Casale saw Agnelli riding his bicycle toward his vehicle. Agnelli was wearing a light colored checkered shirt and riding a red bicycle. Casale swerved to avoid Agnelli, but the passenger side mirror of the vehicle hit and injured Agnelli’s right arm. The impact caused Agnelli to be thrown off his bicycle to the ground. Casale saw Agnelli on the side of the vehicle, heard a thud, looked in his rearview mirror and saw Agnelli lying partially on the embankment. Photographs of the scene, including one aerial photograph, a map, a diagram with measurements of distances noted, the bicycle Agnelli was riding and the shirt he was wearing were introduced into evidence.

Prior to the presentation of evidence, the trial court issued preliminary instructions to the jury regarding the elements of negligence and the plaintiffs burden of proof. At the close of the plaintiffs case, the trial court directed the jury to render a verdict for the defendants because “[t]he evidence presented in this case was insufficient to allow a jury verdict based on more than mere speculation.” When the trial court instructed the jury to elect a foreman and to sign the defendants’ verdict form, the jury inquired, “Why is it our duty to find in this manner?” The trial court redirected the jury to find for the defendants and the foreman then signed and returned the defendants’ verdict form in compliance with the trial court’s order.

The dispositive issue in this case is whether the evidence was sufficient to prove, by a fair preponderance of the evidence, the allegations of negligence alleged in the plaintiffs complaint.

“The rules controlling appellate review of a directed verdict are well settled. Directed verdicts are not generally favored. A trial court’s decision to direct a verdict can be upheld only when the jury could not reasonably and legally have reached any other conclusion. . . . We review a trial court’s decision to direct a verdict for the defendant by considering all of the evidence, including reasonable inferences, in the light most favorable to the plaintiff.” (Citations omitted; internal quotation marks omitted.) Bilodeau v. Bristol, 38 Conn. App. 447, 454, 661 A.2d 1049, cert. denied, 235 Conn. 906, 665 A.2d 899 (1995). While a verdict may be directed where the decisive question is one of law, Lombardi v. J. A. Bergren Dairy Farms, Inc., 153 Conn. 19, 23, 213 A.2d 449 (1965); here it was directed on the court’s conclusion that the proof, as presented to the jury, was insufficient as to causation.

Causation is ordinarily a question of fact, and becomes a question of law only when a fair and reasonable person could reach only one conclusion. Causation need not be proven by direct evidence, but can be inferred from circumstantial evidence. Commercial Union Ins. Co. v. Frank Perrotti & Sons, Inc., 20 Conn. App. 253, 259, 566 A.2d 431 (1989). As long as some evidence of causation is introduced, the question of its sufficiency should go to the jury. Id. Litigants have a constitutional right to have factual issues as to which reasonable people may reach different conclusions resolved by the jury. Mather v. Griffin Hospital, 207 Conn. 125, 138, 540 A.2d 666 (1988). The trial court’s role is to decide whether, viewing the evidence in the light most favorable to the plaintiff, the jury could have reasonably and legally reached only one conclusion. Berry v. Loiseau, 223 Conn. 786, 819-20, 614 A.2d 414 (1992).

The elements of a cause of action for negligence are duty, breach, causation and damages. Doe v. Manheimer, 212 Conn. 748, 755, 563 A.2d 699 (1989). The defendants argue only that the plaintiff failed to present sufficient evidence from which a jury could find that the negligence alleged was the proximate cause of Agnelli’s injuries. Proximate cause is defined as an actual cause that is a substantial factor in the resulting harm. It is a question that should be submitted to the trier of fact if there is room for reasonable disagreement. Coste v. Riverside Motors, Inc., 24 Conn. App. 109, 114, 585 A.2d 1263 (1991).

In the present case, there was evidence presented as to the speed at which Casale was driving, the amount of light, the visibility, the road condition, the straightness of the road, the seating space in the cab of the vehicle, the point of impact between the side mirror and Agnelli, and the items hanging on the rear-view mirror. The jury also had before it photographs, including an aerial shot, a map, a diagram with measurements of distances, the bicycle Agnelli was riding and the shirt he was wearing. From the evidence, and the reasonable inferences drawn from facts found from that evidence, the jury could have deduced reasonable and logical conclusions. Such conclusions may not be the result of speculation and conjecture. Boehm v. Kish, 201 Conn. 385, 389, 517 A.2d 624 (1986). In this case, however, the inference that the accident would not have occurred had Casale maintained a proper lookout and kept his vehicle under proper control would have been both reasonable and logical. The jury may have determined that Casale’s operation of his vehicle was a substantial factor in the resulting injuries to Agnelli.

We find that reasonable minds could differ on the inferences to be drawn and the conclusions to be reached from the evidence presented on the issue of causation in this case. We conclude, therefore, that the trial court improperly granted the defendants’ motion for a directed verdict. The jury could reasonably and logically have concluded from the evidence presented, if accepted as credible, that under all the circumstances it was more probable than not that Agnelli’s injuries were proximately caused by Casale’s manner of operation of his vehicle, as alleged.

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

In this opinion the other judges concurred.

       Because this disposition requires a remand for a new trial, we determine that it is unnecessary to address the plaintiffs second issue claiming that the trial court improperly conducted a settlement conference prior to granting the defendant’s motion for a directed verdict, an incident unlikely to recur on retrial.

       The complaint alleged that “[t]he defendant operator, Casale, was the agent or employee of the defendant owner, Aircraft Hardware, Inc., and was operating the vehicle in the course of his agency or employment.”

       The baby was in a car safety seat, while the three year old shared a seat belt with his mother.

       A police officer, when questioned as to the visibility of the operator being obstructed by “any of the items hanging from the rearview mirror” answered, “Not greatly, no." Casale was asked whether “[t]hey obstructed your view so you couldn’t see someone in front of you?” He answered, “No.”

       Agnelli lost his right arm as a result of the collision.

       There is no claim raised that the allegations of the plaintiffs complaint are insxifficient to state a cause of action against the defendants.


author: SCHALLER, J.

text:
    TOBY DEELYE COLE ET AL. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF CORNWALL
    (13714)
    Dupont, C. J., and Schaller and Spear, Js.

      Argued September 21, 1995
    decision released March 5, 1996

      Ian A. Cole, for the appellants (plaintiffs).

      Thomas P. Byrne, with whom, on the brief, was Steven E. Byrne, for the appellee (defendant).
   SCHALLER, J.

The plaintiffs Toby deElye Cole, Sally deElye Cole and Lois Redington appeal from the judgment of the trial court affirming the defendant Cornwall planning and zoning commission’s (commission) passage of an amendment to its zoning regulations. The plaintiffs claim that the trial court improperly (1) concluded that the commission may enact a regulation that authorizes a special use permit that expires after a two year period, (2) concluded that the commission’s amendment to its regulations does not violate a Torring-ton area health district regulation, (3) considered evidence obtained outside of public hearings, and (4) concluded that the amendment was in accord with a comprehensive plan and reasonably related to the police power purposes enumerated in General Statutes § 8-2. We affirm the judgment of the trial court.

The trial court found the following facts. On October 27,1989, Lawrence Stevens and Victoria Stevens applied to the commission for a permit to construct a storage shed on property owned by Victoria Stevens in Cornwall. The commission learned, in considering the application, that the shed w ould be used to house a sawmill, and it would replace a sawmill already being operated on the premises by Lawrence Stevens. At the time of the application, Cornwall zoning regulations permitted the operation of permanent sawmills in residential districts by special exception only if a 500 foot setback requirement could be met. Because the existing sawmill did not satisfy the 500 foot setback requirement, Lawrence Stevens had to discontinue its use.

On October 11, 1990, and January 19, 1991, the commission held public hearings on proposed amendments to its regulations. On February 11,1991, the commission amended article VIII of the Cornwall zoning regulations by adding new § 8.20. Section 8.20.5 (a) reduced the setback requirement for permanent sawmills to 200 feet and classified permanent sawmills as a class C #83 (Forestry Activities) land use for the purpose of noise levels. Section 8.20.9 further provided that special permits required to operate sawmills “shall be valid for a two-year period and may be renewed for additional two-year periods.”

Toby Cole, Sally Cole, Redington, Ilyana Adams and Esther Kenny appealed to the trial court from the commission’s decision to amend the Cornwall zoning regulations. The trial court dismissed the appeal on December 30,1991, on the ground that the plaintiffs had not established aggrievement. We reversed that judgment and remanded the case for a hearing on the merits. Cole v. Planning & Zoning Commission, 30 Conn. App. 511, 620 A.2d 1314 (1993). On November 22, 1993, the trial court held a hearing on the merits of the plaintiffs’ appeal, and on April 6, 1994, the trial court rendered judgment in favor of the commission. We certified the plaintiffs’ petition for appeal to this court.

I

The plaintiffs claim that the trial court improperly concluded that the commission may enact a zoning regulation that authorizes a special use permit that expires after a two year period. The plaintiffs argue that the provision authorizing a limited special use permit is invalid because an owner of property has a vested right to put that property to a use allowed under a special exception if the regulatory requirements for issuance of the permit are satisfied. The plaintiffs further argue that because the special use permit provision is an essential part of the zoning regulation, it is not sever-able. The plaintiffs contend, therefore, that the entire regulation is invalid.

We first consider the commission’s argument that this issue is moot because the commission repealed the two year limitation provision after the trial court decision. “It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . . . Grace Community Church v. Bethel, 30 Conn. App. 765, 769, 622 A.2d 591, cert. denied, 226 Conn. 903, 625 A.2d 1375, cert. denied, 510 U.S. 944, 114 S. Ct. 383, 126 L. Ed. 2d 332 (1993). Mootness applies to situations where events have occurred during the pendency of an appeal that make an appellate court incapable of granting practical relief through a disposition on the merits. . . . Because this court has no jurisdiction to give advisory opinions, no appeal can be decided on its merits in the absence of an actual controversy for which judicial relief can be granted. . . .” (Citation omitted; internal quotation marks omitted.) Bakerville Lumber & Construction Co. v. Planning & Zoning Commission, 38 Conn. App. 212, 213, 659 A.2d 758 (1995).

Both sides noted in their briefs that, on August 8, 1994, the commission further amended its regulations and removed the provision requiring special use permits for permanent sawmills to be renewed after a two year period. The plaintiffs argue that pursuant to General Statutes § 8-2h (a), the removal of the special use permit provision from the regulation does not render this issue moot. We disagree.

Section 8-2h (a) provides in pertinent part that a zoning “application . . . which is in conformance with the applicable zoning regulations as of the time of filing shall not be required to comply with, nor shall it be disapproved for the reason that it does not comply with, any change in the zoning regulations . . . taking effect after the filing of such application.” Nothing in the record indicates to this court that an application for a special use permit under Cornwall zoning regulation § 8.20 as originally enacted has been made. The merits of a permit application with the commission are, therefore, not at issue. Instead, the plaintiffs’ challenge con-cems only the validity of the enactment of a zoning regulation by the commission. The plaintiffs’ challenge of the special use permit provision, therefore, is not controlled by § 8-2h (a), and the regulation as amended on August 9, 1994 controls. “ ‘[T]he repeal of an offending law or regulation or the cessation of a challenged activity [renders] an action to enjoin its enforcement moot ....’” St. Pierre v. Solnit, 233 Conn. 398, 401, 658 A.2d 977 (1995); see also Rosnick v. Zoning Commission, 172 Conn. 306, 309, 374 A.2d 245 (1977). We dismiss this issue as moot.

II

The plaintiffs next claim that the trial court improperly concluded that the designation of sawmills as a class C #83 (Forestry Activities) land use by the commission does not violate the health district noise control regulation. We find no merit in the plaintiffs’ claim.

A “noise zone” under the health district noise control regulation is an individual unit of land, and noise zone classifications are based on the actual use of land. The regulation provides standard noise levels that may be emitted from each type of noise zone. The regulation does not, however, determine the manner in which individual units of land may be used. It is the function of the commission, in its legislative capacity, to regulate the actual use of land. General Statutes § 8-2; Parks v. Planning & Zoning Commission, 178 Conn. 657, 660, 425 A.2d 100 (1979); Coastal Suburban Builders, Inc. v. Planning & Zoning Commission, 2 Conn. App. 489, 492, 479 A.2d 1239 (1984). By amending its regulations pursuant to its legislative capacity, the commission did not violate the health district noise control regulation.

Ill

The plaintiffs next claim that the commission denied them due process of law by considering evidence obtained outside the public hearings. The plaintiffs assert that the commission considered evidence obtained during a site inspection and evidence of technological advances that the plaintiffs did not have an opportunity to dispute or rebut. We find no merit in the plaintiffs’ claim.

The following additional facts are relevant to our disposition of this issue. At the October 11,1990 public hearing, the commission’s chairwoman, Virginia Potter, stated that she had visited the Stevens’ property to conduct readings of noise levels. Potter explained the method of taking the readings and the weather conditions at the time of the readings. Potter also referred to technological advances that had produced smaller, quieter equipment.

The plaintiffs argue that the commission failed to reveal the source of the information concerning technological advances, and did not provide the plaintiffs with an opportunity to witness the commissioner’s gathering of evidence or to dispute the evidence acquired. “Due process of law requires not only that there be due notice of the hearing but that at the hearing the parties involved have a right to produce relevant evidence, and an opportunity to know the facts on which the agency is asked to act, to cross-examine witnesses and to offer rebuttal evidence.” Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 249, 470 A.2d 1214 (1984).

Zoning boards and commissions are entitled to receive technical and professional assistance, in executive session, on matters that are beyond their expertise. Pizzalo v. Planning & Zoning Commission, 167 Conn. 202, 208, 355 A.2d 21 (1974). Zoning boards and commissions may also visit sites. Palmisano v. Conservation Commission, 27 Conn. App. 543, 548, 608 A.2d 100 (1992), citing Torsiello v. Zoning Board of Appeals, 3 Conn. App. 47, 50, 484 A.2d 483 (1984).

The disclosure of the information concerning technological advances and of the site visit at the October 11, 1990 public hearing provided the plaintiffs with a full opportunity to cross-examine Potter. They also had the opportunity to rebut Potter’s statement with their own evidence. The plaintiffs chose to forgo this opportunity at both the October 11, 1990, and the January 19, 1991 public hearings. “ ‘The principle requiring a testing of testimonial statements by cross-examination has always been understood as requiring, not necessarily an actual cross-examination, but merely an opportunity to exercise the right to cross-examine if desired.’ ” (Emphasis in original.) Welch v. Zoning Board of Appeals, 158 Conn. 208, 213, 257 A.2d 795 (1969), quoting 5 J. Wigmore, Evidence (3d Ed. 1940) § 1371; see also Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 555, 600 A.2d 757 (1991). We conclude that the commission did not deny the plaintiffs due process.

IV

The plaintiffs claim finally that the trial court improperly concluded that the commission enacted § 8.20 in accordance with a comprehensive plan and pursuant to its police powers enumerated in General Statutes § 8-2. The plaintiffs argue that the record reveals that the commission abused its discretion by amending its zoning regulations to accommodate an individual property owner. We disagree.

On February 11, 1991, Potter stated the following rationale for the amendment to the commission’s regulations. The commission “had become aware of the inadequacy of the regulation regarding permanent sawmills. There was only one requirement, the setback of 500 feet. The inadequacy was seen in two areas. One, technological advances have produced smaller, quieter milling equipment not recognized by the arbitrary setback, and, two, protection from dissimilar uses such as buffers, etc. were absent from that regulation. . . . Whereas the town plan contains recommendations to support this amendment, both to expand the opportunity for local employment by permitting small scale business activities in residential zones under standards which assure that such activities will be compatible with surrounding residential uses.”

The parties do not dispute the trial court’s finding that Potter’s statement amounted to a “formal, official, collective statement of reasons” for the commission’s actions. See Caserta v. Zoning Board of Appeals, 226 Conn. 80, 86, 626 A.2d 744 (1993). “Where azoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations. . . .The [amendment] must be sustained if even one of the stated reasons is sufficient to support it.” (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208, 658 A.2d 559 (1995).

We conclude, on the basis of our review of the record, that the commission acted in accordance with the Cornwall comprehensive plan and pursuant to its police powers enumerated in § 8-2. The plaintiffs’ claim that the commission enacted § 8.20 of the zoning regulations to accommodate an individual property owner is not supported by the record. While we recognize that the Stevens’ application for a permit to construct a storage shed on their property led the commission to learn that Lawrence Stevens was operating a sawmill that did not comply with existing regulations, the record reveals that the commission’s action in adopting the amendment fully complied with § 8-2. See Protect Hamden/ North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, supra, 220 Conn. 546-47.

Our Supreme Court has held that the police power of “promotfing] health and the general welfare”; General Statutes § 8-2; includes the prospect of producing economic benefits. Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, supra, 220 Conn. 550. The public hearings on October 11,1990, and January 14,1991, included discussions of the rural nature of the land in Cornwall, the benefits of making a living off the land, the validity of using land for forestry and sawmills, and the need for diversity as a key to agricultural survival in an area of small farms. From this evidence, the commission, quoting the town’s comprehensive plan, reasonably could have found that amending its regulations served “ ‘[t]o expand the opportunity for local employment by permitting small-scale . . . business activities in residential zones’ ” thereby producing economic benefits and promoting health and the general welfare.

In addition, the amendment conformed to the town’s comprehensive plan. “The requirement of a comprehensive plan is generally satisfied when the zoning authority acts with the intention of promoting the best interests of the community.” (Internal quotation marks omitted.) Id., 551. Section 8.20.1 provides: “The purpose of this amendment is to continue the policy of allowing commercial sawmills in the R-3 and R-5 Residential Zones under specific standards and requirements designed to limit the commercial use of a sawmill operation located in a residential zone and to minimize its impact on neighboring residential properties.”

The record reveals that the commission considered the noise levels of sawmills and how new technology has reduced the noise pollution and its impact on property values. The commission included within the amendment general standards for the location of a sawmill building; Cornwall Zoning Regs., § 8.20.6; outside storage areas; Cornwall Zoning Regs., § 8.20.7; and vehicular access and use. Cornwall Zoning Regs., § 8.20.8. The commission required that an individual who wants to operate a permanent sawmill apply for a special permit and that the application must include a detailed statement of use describing the operation; Cornwall Zoning Regs., § 8.20.2; in order to assist the commission in ensuring compliance with the regulation.

Under these circumstances, the record adequately supports the commission’s assertion that it was enacting “standards which assure that such activities will be compatible with surrounding residential uses” and thereby in accordance with a comprehensive plan. Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, supra, 220 Conn. 552-53.

The judgment is affirmed.

In this opinion the other judges concurred.

       Ilyana Adams and Esther Kenny were also plaintiffs in this action, but did not join the appeal. We refer herein to Toby deElye Cole, Sally deElye Cole and Lois Redington as the plaintiffs.

       General Statutes § 8-2 (a) provides in pertinent part: “[Regulations shall be made in accordance with a comprehensive plan and in adopting such regulations the commission shall consider the plan of development prepared under section 8-23. Such regulations shall be designed to lessen congestion in the streets; to secure safety from fire, panic, flood and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population and to facilitate the adequate provision for transportation, water, sewerage, schools, parks and other public requirements. . . .”

       Section 8.20 of the Cornwall zoning regulations provides in pertinent part: “Permanent Sawmill for Limited Commercial Use
      “.1 Statement of Purpose. The purpose of this amendment is to continue the policy of allowing commercial sawmills in the R-3 and R-5 Residential Zones under specific standards and requirements designed to limit the commercial use of a sawmill operation located in a residential zone and to minimize its impact on neighboring residential properties.
      “.5 Minimum Standards—Location and Operation
      “a. The sawmill facility shall be defined as the saw and related equipment (such as, but not limited to: planer, edger) or the building enclosing the operation. Sawmills shall be classified as a Class C #83 (Forestry Activities) land use and the noise levels emanating therefrom must not exceed the decibel readings for such use established by the Torrington Area Health District Noise Control Regulations.
      “b. It shall be the responsibility of the applicant to establish and maintain the sawmill facility in such a way that it will comply with the standards in the Noise Regulation. If necessary, noise reduction steps must be taken in order to comply with the standards. Prior to issuance of a Certificate of Zoning Compliance the Zoning Enforcement Officer shall request the Torrington Area Health District to certify compliance with its Noise Control Regulations. If any time the sawmill operation exceeds the maximum allowable noise level, the Zoning Enforcement Officer shall issue a cease and desist order.
      “e. The sawmill building shall be set back a minimum of 200 feet from property lines located in residential zones and 75 feet from property lines located in the General Business or Industrial Zones. Where it is demonstrated that the adjoining property is State Forest land, the Commission may approve a minimum setback of 50 feet.
      * ** *
      “.9 Permit and Enforcement
      “a. The special permit shall be valid for a two-year period and may be renewed for additional two-year periods.
      “b. The special permit may be revoked by a vote of the Commission after a Public Hearing called for due cause.”

         See footnote 3.

       See footnote 3.

       Cornwall Zoning Regs., § 8.20.9 (a)

       Section 8.20.9 of the Cornwall zoning regulations had been renumbered § 8.23.9 prior to its being removed. The commission, therefore, removed § 8.23.9 from its zoning regulations on August 8,1994. We continue to refer, however, to § 8.20.9 for purposes of this appeal.

       We note that on October 27,1989, Lawrence Stevens and Victoria Stevens applied to the commission for a special permit to construct a storage shed. Because they filed the application before § 8.20 was originally enacted, however, the application does not require us to consider the validity of the amended regulation. Pursuant to General Statutes § 8-2h (a), the application would have to be considered according to the regulations existing prior to the adoption of § 8.20 by the commission.

       Because the regulation as amended on August 9, 1994, is controlling for purposes of this appeal we need not decide whether the original § 8.20.9 of the regulation is essential to and, therefore, nonseverable from the remainder of the regulation.

       See footnote 3.

       General Statutes § 19a-241 authorizes the formation of district departments of health by towns, cities and burroughs. Cornwall and neighboring towns have united to form the Torrington area health district.


author: PER CURIAM.

text:
    FLOYD WILLIAMS v. COMMISSIONER OF CORRECTION
    (14241)
    Dupont, C. J., and O’Connell and Spear, Js.
    Argued January 17
    decision released March 5, 1996

      Leopold P. DeFusco, special public defender, for the appellant (petitioner).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gerard P. Eisenman, assistant state’s attorney, for the appellee (respondent).
   PER CURIAM.

The petitioner appeals from the habeas court’s dismissal of his petition for writ of habeas corpus and the court’s denial of his petition for certification.

After a review of the record and briefs, and after considering the oral arguments, we conclude that the petitioner has not made a substantial showing that he has been denied a state or federal right or sustained the burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. Williamson v. Commissioner of Correction, 39 Conn. App. 773, 667 A.2d 562 (1995); Davis v. Commissioner of Correction, 39 Conn. App. 735, 667 A.2d 560 (1995); Bush v. Commissioner of Correction, 37 Conn. App. 930, 657 A.2d 724 (1995).

The appeal is dismissed.


text:
    BRANHAVEN ASSOCIATES v. VITROM, INC.
    (15278)
    Dupont, C. X, and Foti, Lavery, Heiman and Spear, Js.

      Considered December 27, 1995
    decision released March 5, 1996

      Robert D. Mercer-Falkoff, in support of the motion.

      Eric R. Gaynor, in opposition to the motion.
   SPEAR, J.

The plaintiff in this summary process action moves to dismiss this appeal on the ground that the defendant did not post a bond as required by General Statutes § 47a-35a (a). The sole issue is whether this particular bond requirement applies where premises are leased for use as a restaurant rather than as a dwelling unit. We conclude that the bond provision of § 47a-35a (a) does not apply to this appeal and, therefore, deny the motion to dismiss.

After the defendant failed to pay rent pursuant to a lease agreement between the parties, the plaintiff commenced a summary process action. The trial court rendered judgment for the plaintiff and this appeal followed.

The plaintiff argues that, pursuant to § 47a-35a (a), upon filing its appeal, the defendant was required to give a bond to guarantee payment of rents that may accrue while the appeal is pending. Section 47a-35a (a) provides in relevant part: “When any appeal is taken by the defendant occupying a dwelling unit as defined in section 47a-l in an action of summary process, he shall, within the period allowed for taking such appeal, give a bond with surety to the adverse party to guarantee payment for all rents that may accrue during the pen-dency of such appeal . . . .” (Emphasis added.)

The defendant asserts that § 47a-35a (a) does not apply to this appeal because the defendant does not occupy a dwelling unit as defined in General Statutes § 47a-l. Section 47a-l (c) defines a dwelling unit as “any house or building, or portion thereof, which is occupied, is designed to be occupied, or is rented, leased or hired out to be occupied, as a home or residence of one or more persons.”

The parties’ lease agreement is entitled “shopping center lease” and provides for the use of the leased premises as a restaurant. Because the space was leased to the defendant for business purposes, the property does not satisfy the definition of a dwelling unit under § 47a-l and, therefore, § 47a-35a (a) does not apply.

The motion to dismiss is denied.

In this opinion the other judges concurred.

       The relevant portion of § 47a-35a (a) is set out in the body of this opinion.

       We note that General Statutes § 47a-35a (b) provides: “In any other appeal the court on its own motion or on motion of the parties, may fix a sufficient bond with surety to the adverse party in such amount as it may determine." If the plaintiff in this case desired an appeal bond from the defendant, the plaintiff should have moved the court to set a bond pursuant to § 47a-35a (b). See New Haven v. Konstandinidis, 29 Conn. App. 139, 612 A.2d 822, cert. denied, 224 Conn. 920, 618 A.2d 527 (1992).


author: LANDAU, J.

text:
    STATE OF CONNECTICUT v. REYNALDO CRUZ
    (13452)
    O’Connell, Landau and Heiman, Js.

      Argued October 25, 1995
    decision released March 5, 1996

      Neal Cone, assistant public defender, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, was Patricia A. Swords, state’s attorney, for the appellee (state).
   LANDAU, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of criminal attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1), conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-59 (a) (l), reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a), carrying a pistol without a permit in violation of General Statutes § 29-35 (a), threatening in violation of General Statutes § 53a-62 (a) (1), and unlawful discharge of a firearm in violation of General Statutes § 53-203.

In a wholesale attack on the trial court’s conclusions of law and instructions to the jury, the defendant claims that the trial court (1) should have granted his motion for judgment of acquittal of conspiracy to commit assault in the first degree asserting there was insufficient evidence for conviction, (2) should have granted his motion for a new trial pursuant to Practice Book § 902 asserting that the verdicts were against the weight of the evidence, (3) should have granted his motions for a mistrial and a new trial asserting that he was deprived of a fair trial because a state’s witness had referred to him as a drug dealer, (4) inadvertently gave an improper missing witness charge, (5) should have instructed the jury, sua sponte, that it could not infer that the defendant was a criminal from evidence that the police possessed his photograph, (6) appeared partisan in its charge, and thus undermined the presumption of innocence and the state’s burden of proof, and (7) unduly emphasized the defendant’s interest in the outcome of the case when charging on the credibility of witnesses. Finally, the defendant asserts that even if no one error on its own warrants a reversal, their combined effect does.

The jury could reasonably have found the following facts. There was a feud between a group of Hispanic males and three African-Americans, one of whom was the victim, Jeffrey Wright. On April 23, 1993, while Wright was visiting his girlfriend at her Village Street home in Vernon, the defendant and Raphael Baez, known as “Sino,” and several other Hispanic men, threw stones at Wright as he attempted to exit the house. The group also shouted threats at Wright and urged him to come outside and fight. From inside the house, Wright telephoned Nathaniel Evans and informed him about the situation. In response to Wright’s phone call, Evans and Lance Davis escorted Wright from the house on Village Street to Evans’ house on Union Street.

A short time later, an individual known as “Tito” arrived at Evans’ house and stated that Sino wanted to fight with Wright. Thereafter, Evans and Davis returned to Village Street to intervene on Wright’s behalf. On Village Street, Evans observed the defendant, known to him as Ray, standing together with Sino, Tito, and a fourth Hispanic individual described only as an “older” male. Evans asked Sino whether they could resolve the problem by talking instead of fighting to which Sino replied: “There’s no more talking, there’s shooting now.” Realizing that a compromise was not possible, Evans and Davis returned to Evans’ house followed by the defendant and the others.

Evans, Davis and Wright stood on Evans’ front porch as the defendant and his group assembled in a parking lot across the street. Sino crossed the street and began shouting at Wright to come and fight. As Wright began to leave the porch to confront Sino, the older male handed something to the defendant. Seconds later, the defendant raised his arm, pointed a handgun in the direction of Evans, Davis and Wright and fired one shot. The three men crawled into the house and called the police. The defendant and his group left the area.

At the scene of the shooting, the police recovered one shell casing from an expended .25 caliber cartridge and one .25 caliber cartridge that had not been fired. In a search of Sino’s bedroom, the police recovered two additional .25 caliber cartridges with markings similar to the markings on the cartridges found at the scene. Several weeks later, the defendant met Evans on the street and apologized for the shooting incident. The defendant informed Evans that he was not angry with Evans personally, and that the attack was directed only at Wright.

It is against this factual backdrop that we measure the defendant’s claim that there was insufficient evidence on which to sustain a conviction of conspiracy to commit assault in the first degree.

I

The defendant first claims that the trial court should have granted his motion for judgment of acquittal directed to the count of conspiracy to commit assault in the first degree. He argues that even if it were found that he had fired the gun, the evidence was insufficient to show that he was acting in concert with the other members of his group. We disagree.

We employ a two part analysis when reviewing sufficiency of the evidence claims. First, we construe the evidence in a light most favorable to sustaining the verdict. Next, we determine whether, from the evidence and all the reasonable inferences which it engenders, a jury could rationally have concluded that the defendant was guilty beyond a reasonable doubt. State v. Laws, 37 Conn. App. 276, 281, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995). In this process of review, the probative force of the evidence is not diminished by the fact that the evidence may be circumstantial rather than direct. Id. To uphold the conviction, there can be no reasonable doubt as to any essential element of the offense charged. State v. Smith, 138 Conn. 196, 201, 82 A.2d 816 (1951).

“To establish the crime of conspiracy under § 53a-48 . . . the state must show that there was an agreement between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. . . . The existence of a formal agreement between the parties need not be proved; it is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act. . . . Because of the secret nature of conspiracies, a conviction is usually based on circumstantial evidence. . . . Moreover, it is well settled that conspiracy is a specific intent crime, with the intent divided into two parts: (1) the intent to agree to conspire; and (2) the intent to commit the offense that is the object of the conspiracy. ... To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also they intended to commit the elements of the offense.” (Citations omitted; internal quotation marks omitted.) State v. Estrada, 28 Conn. App. 416, 420-21, 612 A.2d 110, cert. denied, 223 Conn. 925, 614 A.2d 828 (1992).

At trial, the state relied on certain evidence to establish the defendant’s role in the conspiracy. The underpinning of this evidentiary framework was the fact that the defendant was a member of a group of individuals acting in concert in the events that preceded the shooting. The evidence established that the defendant participated in the stone throwing incident, and that he was present when Sino told Evans there would be shooting rather than talking, and when Sino and the others followed Evans and Davis back to Evans’ house. The evidence further established that both Sino and the defendant were angry at Wright, that the cartridges the defendant fired matched those found in Sino’s bedroom, and that the defendant received something from the older male immediately prior to the shooting. From this evidence, the jury could reasonably have inferred that the object given to the defendant was the gun used in the shooting and that it was mutually possessed by the defendant and Sino. Finally, the evidence showed that the defendant aimed the gun directly at the three men when he fired.

Further, the jury could have reasonably found from the evidence that the defendant and the others intentionally agreed to carry out Sino’s threat to escalate the existing level of conflict to shooting, and that they intended to cause serious physical injury to Wright in so doing. The shooting itself provides proof of an overt act in furtherance of the agreement. See State v. Pinnock, 220 Conn. 765, 772, 601 A.2d 521 (1992). We conclude that when viewed in a light most favorable to upholding the verdict, the evidence was sufficient to allow the jury to find that the state proved the defendant guilty of conspiracy to commit assault in the first degree beyond a reasonable doubt.

II

The defendant next claims that the trial court should have granted his motion for a new trial pursuant to Practice Book § 902 because the verdicts were against the weight of the evidence. The crux of his argument is that the state’s three principle witnesses all had prior criminal records, while the defendant and his witnesses did not. For that reason, he asserts, no reasonable jury could have believed the state’s witnesses or disbelieved his. Although the defendant failed to make this claim when he moved for a new trial, he now seeks review under the plain error doctrine pursuant to Practice Book § 4185. We decline to grant review.

“Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . State v. Webb, 37 Conn. App. 722, 730-31, 657 A.2d 711 (1988).” State v. Krzywicki, 39 Conn. App. 832, 837, 668 A.2d 387 (1995). Here, the defendant’s claim does not involve plain error because he does not raise doubt as to the fairness and integrity of the trial. The only real issue raised by this claim is the credibility of the witnesses. As we have stated many times, “[w]e do not sit as a thirteenth juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. . . . Rather, we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. White, 229 Conn. 125, 142-43, 640 A.2d 572 (1994).

HI

The defendant next claims that the trial court should have granted his motions for a mistrial and for a new trial after a state’s witness testified that the defendant was a drug dealer. The defendant argues that the comment was so prejudicial to him that he was deprived of his state and federal due process rights to a fair trial.

The record reveals that after the challenged comment was made, the jury was excused and the defendant moved for a mistrial. Outside the presence of the jury, the state maintained that it had not anticipated the response concerning drugs and that it would not object to having the comment stricken. The trial court warned the witness not to mention drugs again and informed counsel that it would order the remark stricken and “caution the jury.” The court denied the motion for a mistrial and the jury was allowed to return.

During the discussion, the defendant did not respond to the court’s denial of his motion for a mistrial, nor did he object to the court’s ruling that it would strike the challenged testimony and caution the jury. Moreover, the defendant did not make any requests relative to the court’s curative instruction. Upon the jury’s return, the trial court gave a curative instruction. In its final charge, the court reminded the jury that any evidence that had been stricken was not evidence for their consideration.

“Due process requires that a criminal defendant be given a fair trial before an impartial jury. U.S. Const., amend XIV; Conn. Const., art. I, § 8; State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982). A new trial, however, is not required every time a juror has been placed in a potentially compromising situation . . . [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. . . .

“The general rule in Connecticut is that a mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has been denied the opportunity for a fair trial. . . . The trial court enjoys wide discretion in deciding whether a mistrial is warranted . . . and its evaluation as to events occurring before the jury is to be accorded the highest deference. . . . Every reasonable presumption will be given in favor of the trial court’s ruling . . . because the trial court, which has a firsthand impression of the jury, is in the best position to evaluate the critical question of whether the juror’s or jurors’ exposure has prejudiced a defendant. . . . It is only when an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court’s exercise of discretion.” (Citations omitted; internal quotation marks omitted.) State v. Salerno, 36 Conn. App. 161, 169-70, 649 A.2d 801 (1994), appeal dismissed, 235 Conn. 405, 666 A.2d 821 (1995) (certification improvidently granted).

The trial court’s remedy was appropriate; its denial of the motion for mistrial was proper. The single comment by Wright was immediately stricken and the jury was instructed to disregard it and not to consider it as evidence. Moreover, the trial court made it clear that the remark did not impact on the charges against the defendant. We conclude that no injustice occurred nor was there a manifest abuse of discretion exercised by the trial court.

IV

The defendant’s remaining five claims of impropriety on the part of the trial court are unpreserved and without merit. The defendant took no relevant exceptions to the court’s charge, nor, as far as can be determined from the record, did he file any requests to charge. Further, his claims have, for the most part, been ruled on by this court and our Supreme Court.

“Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one [issue] .... [Multiplying assignments of error will dilute and weaken a good case and will not save a bad one. . . . Most cases present only one, two, or three significant questions. . . . Usually ... if you cannot win on a few major points, the others are not likely to help. . . . The effect of adding weak arguments will be to dilute the force of the stronger ones.” (Citations omitted; internal quotation marks omitted.) State v. Pelletier, 209 Conn. 564, 567, 552 A.2d 805 (1989).

The judgment is affirmed.

In this opinion the other judges concurred.

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

       General Statutes § 53a-59 provides in pertinent part: “(a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       Practice Book § 902 provides in pertinent part: “Upon motion of the defendant, the judicial authority may grant him a new trial if it is required in the interest of justice. . . .”

       Practice Book § 4185 provides in pertinent part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at trial or arose subsequent to the trial. The court may. in the interests of justice notice plain error not brought to the attention of the trial court. . . .”

       When asked whether he knew the defendant prior to the shooting, Wright testified as follows:
      “Q. Okay. Prior to April 23, prior to the shooting incident, did you know who Ray was?
      “A. Yeah, I ad.
      “Q. And how was it that you came to know him?
      “A. Well, he showed up, you know, not long after—There weren’t that many Spanish people living on the street before Ray came. They started adding up, you know, slowly but surely. He was one of the last ones to show up around there, you know, and he was about one of the only ones that had an automobile and, you know, he sold drugs.”

       The trial court gave the following curative instruction: “Alright. Right before we excused the jury for a moment, Mr. Wright’s answer actually went beyond the question that was asked as to where he knew the defendant from and he gave an answer that was not part of this case, it’s not evidence in this case, it has nothing to do with this case, it has not been charged, and it is not proper. It’s not something for consideration. It’s always difficult when a little water falls out of the cup to try to get it all back in and mop it up, but things like this do occasionally happen. As I’ve told you time and time again, the defendant is innocent until proven guilty. This statement has nothing to do with this case, so it’s not something to even be considered in the question of innocence or guilt of this case or any allegations similar to what Mr. Wright referred to. Mr. Wright didn’t understand that he couldn’t say something like that, but he now understands and we will proceed, and I just again urge the jury to wipe it out of your mind, it has nothing to do with this case, and we’ll try to keep it on track with relevant evidence only.”

       As to the defendant’s unpreserved missing witness claim, see State v. Jones, 205 Conn. 723, 735, 535 A.2d 808 (1988); as to his unpreserved evidentiary claim involving photographs from a police file, see State v. Peary, 176 Conn. 170, 175-76, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979); as to his unpreserved claim that the trial court’s instructions undermined the presumption of innocence and the state’s burden of proof, some of the language he now complains of on appeal he requested at trial. Further, the instructions in their entirety are similar to those approved previously by this court and the Supreme Court. See State v. Ellis, 232 Conn. 691, 657 A.2d 1099 (1995); State v. Francis, 228 Conn. 118, 635 A.2d 762 (1993); State v. Walton, 227 Conn. 32, 630 A.2d 990 (1993) ; State v. Tucker, 226 Conn. 618, 629 A.2d 1067 (1993); State v. Stanley, 223 Conn. 674, 613 A.2d 788 (1992); State v. Dyson, 217 Conn. 498, 586 A.2d 610 (1991); State v. Johnson, 214 Conn. 161, 571 A.2d 79 (1990); State v. Thomas, 214 Conn. 118, 570 A.2d 1123 (1990); State v. Smith, 35 Conn. App. 51, 644 A.2d 923 (1994); State v. Crosby, 34 Conn. App. 261, 641 A.2d 406, cert. denied, 230 Conn. 903, 644 A.2d 916 (1994); State v. Bush, 33 Conn. App. 253, 635 A.2d 820 (1993), cert. denied, 228 Conn. 923, 638 A.2d 37 (1994) ; State v. Leonard, 31 Conn. App. 178, 623 A.2d 1052 (1993). As to the defendant’s claim that the trial court emphasized the defendant’s interest in the outcome of the case when charging on the credibility of witnesses, see State v. Williams, 220 Conn. 385, 599 A.2d 1053 (1991). As to the defendant's final claim that the trial court’s action although singly may not be improper but becomes so when cumulated, “[assignments of error that are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court." Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 250 n.3, 524 A.2d 610 (1987). We, therefore, decline to review it.


text:
    STATE OF CONNECTICUT v. TERRY RICHARDSON
    (13045)
    Heiman, Spear and Hennessy, Js.
    Argued December 4, 1995
    decision released March 5, 1996

      Ellen A. Jawitz, with whom, on the brief, was Alexander H. Schwartz, for the appellant (defendant).

      Robert J. Scheinblum, deputy assistant state’s attorney, with whom, on the brief, was James E. Thomas, state’s attorney, for the appellee (state).
   SPEAR, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (2) and 53a-8, and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (2). He claims that the trial court violated his constitutional due process rights by denying his request to instruct the jury on the defense of renunciation pursuant to General Statutes § 53a-10. We affirm the conviction on the charge of conspiracy to commit robbery but reverse the conviction on the charge of robbery and remand the case to the trial court for a new trial on that charge.

The jury could reasonably have found the following facts. On May 18,1992, the defendant met with Charles Devorce and Thomas Johnson to plan the robbery of the Grocki Insurance Agency in New Britain. Shortly after planning the robbery, Johnson drove all three men to New Britain to carry out their plan. The three men agreed that Devorce and Johnson, both armed, would enter the insurance agency and execute the robbery while the defendant would be responsible for driving the getaway car after the commission of the crime.

Johnson stopped the car on Oak Street in New Britain about one block from the insurance agency. He instructed the defendant to park the car in front of a greenhouse on Oak Street and to wait there for Devorce and Johnson. Devorce and Johnson then loaded their guns as the defendant moved into the driver’s seat. Devorce and Johnson entered the insurance agency and stole, at gunpoint, money from the agency’s money bag and took money from Leo Grocki, his brother, his niece and Janet Lynch. When Devorce and Johnson realized that Grocki’s brother had escaped from the building, they fled out the back door. Grocki chased after the two men on foot. Devorce and Johnson ran past the place where the defendant was parked, but did not enter the getaway car because Grocki was too close behind them. The defendant was parked about forty to fifty yards away from where the three men had agreed the defendant would be waiting.

Grocki stopped his pursuit for a moment to tell James White, a postman, that he had just been robbed by the two men whom he was chasing. White followed Grocki down Oak Street in his postal truck. As White chased the two men, he saw Grocki’s brother who motioned to him that the two men had turned onto LaSalle Street. Devorce and Johnson then turned onto Wilcox Street. Devorce began running through bushes while Johnson continued running down the middle of the street. After White yelled at Johnson to “give it up,” Johnson turned and fired a shot. The bullet shattered the window of the postal truck and struck White’s arm. The defendant heard White yell at Johnson and saw Johnson fire his weapon at White. The defendant then abandoned his confederates and fled the scene in the getaway car.

The defendant claims that the trial court improperly denied his request to instruct the jury on the defense of renunciation to both the charge of robbery and conspiracy to commit robbery. He further claims that the court’s refusal to instruct violated his constitutional due process rights.

Due process affords criminal defendants the fundamental right to establish a defense. State v. Belle, 215 Conn. 257, 273, 576 A.2d 139 (1990). “If the defendant asserts a recognized legal defense and the evidence indicates the availability of that defense, such a charge is obligatory and the defendant is entitled, as a matter of law, to a theory of defense instruction.” (Internal quotation marks omitted.) State v. Carter, 232 Conn. 537, 545, 656 A.2d 657 (1995). It is well established, however, that this right to a jury instruction is limited to only those theories of defense “for which there is any foundation in the evidence, even if weak or incredible.” State v. Adams, 225 Conn. 270, 283, 623 A.2d 42 (1993); State v. Havican, 213 Conn. 593, 597, 569 A.2d 1089 (1990); State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986). In determining whether any such foundation exists, “[w]e must consider the evidence presented at trial in the light most favorable to supporting the defendant’s request to charge.” State v. Adams, supra, 283; State v. Fuller, supra, 279. The trial court, however, should not submit to the jury a defense where the facts in evidence do not support such a defense. See State v. Adams, supra, 283; State v. Rodgers, 198 Conn. 53, 56, 502 A.2d 360 (1985).

The issue on appeal is whether, in viewing the evidence most favorable to the defense theory, there existed any foundation in the evidence that supports the theory of renunciation. After a careful review of the record, we conclude that there was sufficient evidence to support an instruction on renunciation as to the robbery charge, but insufficient evidence to support an instruction as to the conspiracy charge.

The defendant’s criminal liability as to the robbery charge is based solely on his role as an accomplice pursuant to § 53a-8. Our legislature has recognized renunciation as an available defense to accomplice liability. Section 53a-10 (a) provides in pertinent part that “it shall be a defense that the defendant terminated his complicity prior to the commission of the offense under circumstances: (1) Wholly depriving it of effectiveness in the commission of the offense, and (2) manifesting a complete and voluntary renunciation of his criminal purpose.”

“Renunciation generally requires not only desistance, but more active rejection, and usually contains specific subjective requirements, such as a complete and voluntary renunciation. . . . Connecticut has patterned its criminal code after the Model Penal Code, which permits the defense only if the defendant terminates his complicity by, inter alia, wholly depriving his complicity of its effectiveness in the commission of the offense. ... A mere change of heart or flight from the crime scene does not establish the defense of renunciation. Rather, it is necessary that the defendant accomplice both repudiate his prior aid and deprive that aid of effectiveness. . . . Under Connecticut law, for a charge on the defense of renunciation to be warranted, there must be evidence not only that the defendant completely and voluntarily renounced his participation in the crime, but also that he did so in such a way as wholly to deprive or neutralize his participation of its effectiveness.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Adams, supra, 225 Conn. 284-85.

We conclude that there exists a foundation in the evidence that the defendant took the requisite steps prior to the commission of the robbery to deprive his complicity of its effectiveness. The defendant testified at trial that “as soon as [Devorce and Johnson] got out of sight, I jumped in the front seat and took off” because “I didn’t want any part of it.” He further testified that he went to a bar after leaving the area. Furthermore, Devorce and Johnson both testified that they did not see the defendant on the day of the robbery after they exited the car and entered the insurance agency. We do not evaluate the credibility of these witnesses, but instead examine whether there was any evidence to support an instruction on the defense of renunciation. We leave the function of gauging credibility and weighing evidence to the jury. See, e.g., State v. Figue roa, 235 Conn. 145, 179, 665 A.2d 63 (1995). Whether the evidence introduced was, in fact, sufficient to find that the defendant renunciated his participation is a question for the jury, not the trial court, to decide. See State v. Deptula, 31 Conn. App. 140, 148, 623 A.2d 525 (1993) , appeal dismissed, 228 Conn. 852, 635 A.2d 812 (1994) . We conclude, therefore, that there existed a foundation in the evidence that required the trial court to instruct the jury on the defense of renunciation as to the robbery charge. The trial court’s failure to instruct on the defense constitutes a cause for reversal.

Pursuant to General Statutes § 53a-48 (b), renunciation is also an available defense to a charge of conspiracy. Section 53a-48 (b) provides that “[i]t shall be a defense to a charge of conspiracy that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.” The defendant claims in his brief that he thwarted the success of the conspiracy by “driving away” and thereby “depriv[ing] Devorce and [Johnson] of the quick getaway that might have made the robbery a success.” We disagree.

“The means required to thwart the success of a conspiracy will of course vary in particular cases, and it would be impractical to endeavor to formulate a more specific rule. As a general matter, timely notification to law enforcement authorities will suffice . . . .” I A.L.I., Model Penal Code and Commentaries (1985) § 5.03 (6), p. 458. In the present case, the evidence demonstrates that the defendant took no steps to thwart the success of the conspiracy. He did not notify the police, nor did he, in any way, urge Devorce and Johnson to desist from their criminal purpose. His alleged act of driving away, though relevant to the issue of whether he had terminated his complicity, is irrelevant to the issue of whether he thwarted the success of the conspiracy because his flight from the scene in no way served to prevent the actual commission of the robbery. Because there exists no evidence that the defendant thwarted the success of the conspiracy, the trial court acted properly in not instructing the jury on the defense of renunciation as to the conspiracy charge.

The judgment is reversed in part and the case is remanded for a new trial on the charge of robbery in the first degree.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in pertinent part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

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

         General Statutes § 53a-10 provides: "(a) In any prosecution in which the criminal liability is based upon the conduct of another person under section 53a-8, it shall be a defense that the defendant terminated his complicity prior to the commission of the offense under circumstances: (1) Wholly depriving it of effectiveness in the commission of the offense, and (2) manifesting a complete and voluntary renunciation of his criminal purpose.
      “(b) For purposes of this section, renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor’s course of conduct, which increase the probability of detection or apprehension or which make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim.”

       See footnote 2.

         Pursuant to General Statutes § 53a-48 (a), the crime of conspiracy is complete upon an agreement between two or more persons and the commission of an overt act by one of the conspirators in furtherance of that agreement. Because there was no evidence that the defendant thwarted the success of the conspiracy, he cannot avail himself of the benefit of § 53a-48 (b). We, therefore, need not address the issue of whether § 53a-48 (b) affords defendants the defense of renunciation when the crime of conspiracy has been completed.


author: O’CONNELL, J.

text:
    MARIO ROSATO v. BEATRICE ROSATO
    (14678)
    O’Connell, Foti and Landau, Js.
    Submitted on briefs December 14, 1995
    decision released March 5, 1996

      James P. Caulfield filed a brief for the appellant (plaintiff).

      David A. Reifand Elizabeth L. McMahon filed a brief for the appellee (defendant).
   O’CONNELL, J.

This is a marriage dissolution action in which the plaintiff appeals from a postjudgment order requiring him to pay 55 percent of his pension benefits to the defendant. That order was rendered in response to the defendant’s motion for clarification. The plaintiff contends that the “clarification” is an untimely property assignment. We agree and reverse the judgment of the trial court.

The record discloses the following facts. The parties’ marriage was dissolved on July 11, 1988. The relevant portion of the judgment provided that “the wife is to retain any benefits in the husband’s pension plan which [she] currently has, as his spouse.” When the dissolution judgment was rendered, the plaintiff was employed by the United States Postal Service. On December 21,1994, the defendant filed a motion for clarification of judgment asking the court to “set forth the exact percentage interest of the plaintiffs pension which is due to the defendant.” Following a hearing on March 29,1995, the trial court granted the motion, stating that “the court’s intention was to award the defendant 55 percent of the plaintiffs pension benefits.”

The original order gave the defendant a survivorship interest in the plaintiffs pension, thereby not entitling her to receive any payments during the plaintiffs lifetime. The effect of the court’s clarification was to award the defendant a 55 percent interest in the pension benefits that the plaintiff is currently receiving. The plaintiff argues that this substantial increase in the defendant’s benefits is not a clarification of a prior order but rather constitutes an untimely assignment of a property interest in his pension.

The Superior Court is vested with jurisdiction to assign property at the time it enters a decree dissolving a marriage. General Statutes § dfíb-Sl. Unlike periodic alimony and child support, the court’s jurisdiction to assign property is not continuing. “By its terms, [§ 46b-81 (a)] deprives the Superior Court of continuing jurisdiction over that portion of a dissolution judgment providing for the assignment of property of one party to the other party under General Statutes § 46b-81.” Bunche v. Bunche, 180 Conn. 285, 289, 429 A.2d 874 (1980).

The language of the 1988judgment is clear and unambiguous. The judgment did not assign a percentage, a fixed amount, or a fraction of the plaintiff s pension to the defendant. It simply allowed the defendant to retain the survivorship benefits in the plaintiffs pension that she acquired as a spouse. By changing the award from a survivorship interest to a fixed percentage of the plaintiffs current pension, the trial court assigned property from one party to another. Such an assignment may be done only at the time the dissolution degree is rendered. Croke v. Croke, 4 Conn. App. 663, 664-65, 496 A.2d 235 (1985).

The trial court indicated that because it had intended to render a fixed percentage in 1988, the new order was a clarification, and not a modification, of its original order. A modification is “ ‘[a] change; an alteration or amendment which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject-matter intact.’ ” Jaser v. Jaser, 37 Conn. App. 194, 202, 655 A.2d 790 (1995), quoting Black’s Law Dictionary (6th Ed. 1990). When determining whether the new order was a modification or a clarification, we examine the practical effect of the ruling on the original order. Jaser v. Jaser, supra, 202. The practical effect of the new order in this case was to alter the original property assignment from a survivorship interest to a present interest of 55 percent in the plaintiffs pension.

Despite the trial court’s intention to enter a fixed percentage at the time of the original order, that intention does not now give it jurisdiction to render a new order more than six years after the original order. We agree with the plaintiff that this was not a clarification, but an assignment of property interest at a time when the court had no jurisdiction to do so.

The order issued on the defendant’s motion for clarification is reversed.

In this opinion the other judges concurred.

       General Statutes § 46b-81 (a) provides: “At the rime of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the superior court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect."