author: STOUGHTON, J.

text:
    STATE OF CONNECTICUT v. GILBERTO RIVERA
    (AC 16650)
    Spear, Hennessy and Stoughton, Js.

      Argued November 6, 1998
    officially released April 6, 1999

      Melvin A. Simon, special public defender, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Anne Mahoney, assistant state’s attorney, for the appellee (state).
   Opinion

STOUGHTON, J.

The defendant, Gilberto Rivera, appeals from judgments of conviction, rendered after a jury trial, on four counts of robbery in the first degree in violation of General Statutes § 53a-134 and three counts of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134. The defendant claims that the trial court (1) improperly denied his motion to suppress his confessions to the four robberies and (2) abused its discretion in consolidating the four cases for trial. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On October 21, 1995, two men robbed a Dairy Mart in Bristol, taking $600. Both men wore hooded sweatshirts and had their faces covered, and one of them had a gun. The two men ran around the side of the store and, shortly thereafter, a car was driven from behind the store. The same Dairy Mart was robbed again on November 8, 1995, and more than $350 was taken. That robbery was committed by a lone gunman whose face was covered with a white cloth.

On November 10, 1995, two hooded men robbed a liquor store in Bristol, taking $296. Each of the men had a shirt wrapped around his face. One of the men was armed. After the robbery, the two men ran out of the store and entered a waiting car driven by another person. A witness identified the car and the police determined that the defendant had borrowed the car from its owner.

On November 11, 1995, two men robbed a Cumberland Farms in Bristol. Each man was armed and had covered his face with white cloth. They took approximately $133 and fled in an automobile. After the robbery, the defendant, who had borrowed a car, returned the car to its owner and told her that he had used it in the robbery and warned her not to use it right away. The defendant was arrested on November 14,1995, and, after his arrest, confessed to each of the four robberies.

Prior to trial, the defendant moved to suppress his confessions given to the Bristol police. The trial court reserved decision on the motion until the confessions were offered at trial. The defendant’s motion was subsequently denied and the defendant was found guilty. This appeal ensued.

I

The defendant first claims that the trial court improperly denied his motion to suppress his confessions. Specifically, the defendant claims that (1) the trial court improperly deferred a hearing on the motion until trial, (2) a scrupulous examination of the record does not support a finding that his waiver of both his right to counsel and to remain silent was made knowingly, voluntarily and intelligently and (3) he was high on heroin when he was arrested and, therefore, could not validly waive his rights. We address each claim in turn.

A

The defendant claims that the trial court improperly deferred a hearing on the motion to suppress his confessions until trial. Practice Book § 41-7, formerly § 813, expressly permits the trial judge to defer ruling on a motion made before trial until during the trial of the general issue. See State v. Johnson, 22 Conn. App. 477, 481, 578 A.2d 1085, cert. denied, 216 Conn. 817, 580 A.2d 63 (1990).

The defendant cites Jackson v. Denno, 378 U.S. 368, 391, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), and State v. Oliver, 160 Conn. 85, 95, 273 A.2d 867 (1970), cert. denied, 402 U.S. 946, 91 S. Ct. 1637, 29 L. Ed. 2d 115 (1971), for the proposition that a criminal defendant is entitled, as a matter of due process, to a reliable, clear-cut determination, prior to trial, that a confession sought to be introduced by the state was voluntary. Neither Jackson nor Oliver hold that such determinations must occur prior to trial. Indeed, neither case contains the phrase “prior to trial.” The phrase “prior to trial” appears to have been taken from State v. James, 237 Conn. 390, 410, 678 A.2d 1338 (1996), which cites Jackson v. Denno, supra, 391, as authority, and was quoted in State v. Correa, 241 Conn. 322, 328, 696 A.2d 944 (1997).

The issue in both James and Correa was the voluntar-iness of a confession and not the timing of the hearing on a motion to suppress. State v. Correa, supra, 241 Conn. 327; State v. James, supra, 237 Conn. 410. Although James does state that a criminal defendant is entitled, as a matter of due process, to a reliable, clear-cut determination prior to trial that the confession sought to be introduced by the state was made voluntarily; State v. James, supra, 410; see State v. Correa, supra, 328; that language is obiter dicta because the timing of the hearing was not an issue. The defendant cites no authority, and our research has discovered none, that holds that a hearing and decision on a motion to suppress must occur prior to trial. As previously stated, hearings concerning motions to suppress have frequently been deferred until the trial. See, e.g., State v. Johnson, supra, 22 Conn. App. 481.

The defendant contends that by failing to provide its ruling prior to trial, the trial court deprived him of the opportunity to assess intelligently his options and strategies. He does not, however, suggest what any of those options and strategies might have been. The trial court noted that defense counsel cited no authority to support the proposition that a pretrial determination, concerning the confessions, was mandatory. Additionally, the defendant represented to the trial court that granting his motion would not be dispositive of the case, and that there would be few witnesses to be heard during the motion hearing and that those witnesses would also be called during the prosecution’s case-in-chief. The trial court told defense counsel that if the deferred ruling altered defense strategy in questioning witnesses presented prior to the ruling, the witnesses could be recalled. No witnesses were recalled by the defense. Moreover, the defendant has been unable to demonstrate that he was harmed by the deferral of the hearing.

Under our rules of practice, the defendant is entitled to a preliminary determination of the voluntariness of a confession by the trial judge before the confession may be offered to the jury. State v. Oliver, supra, 160 Conn. 93-95. Due process does not require that the suppression hearing be held prior to trial. The defendant’s claim is without merit.

B

The defendant next claims that a scrupulous examination of the record does not support a finding that his waiver of both his right to counsel and his right to remain silent was made knowingly, voluntarily and intelligently. We disagree.

The state must establish “by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights. . . . Although the issue is . . . ultimately factual, our usual deference to fact-finding by the trial court is qualified, on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence.” (Citations omitted; internal quotation marks omitted.) State v. Stanley, 223 Conn. 674, 686, 613 A.2d 788 (1992). After reviewing the record, we conclude that the state has met its burden of proof.

On the night of his arrest, the defendant was taken to the Bristol police station and, before being interviewed, was advised of his Miranda rights by Detective Kevin Hayes, who read them from a form in both Spanish and English, which the defendant subsequently signed. Thereafter, Hayes again advised the defendant of his Miranda rights, reading them from a police department form, and had the defendant initial a box beside each right as it was read to him. The defendant appeared to be reading the form as it was read to him because he moved his head from left to right. The following morning, Detective Ray Bredefeld reviewed the Miranda rights and the defendant’s waiver of those rights with the defendant, line by line, and obtained a signed and notarized statement from him. Immediately after obtaining the written statement, Detective Edward Spyros spoke with the defendant and obtained another signed and notarized statement from him.

The defendant asserts, as he did in the trial court, that his native language is Spanish, he was bom in Puerto Rico and he spent five years in a Spanish language school and only one and one-half years in bilingual education in New York. The defendant claims that his understanding of English is insufficient to enable him to understand his rights. The trial court observed that the defendant testified in English on direct and cross-examination. There was also evidence that he had completed a job application and a written test in English. In addition, a witness testified that the defendant read aloud, in English, a newspaper account of the robberies.

The trial court, in reaching its decision, credited the testimony of the police officers and did not credit the testimony of the defendant that he could not read or understand the Miranda warnings, which were furnished to him in English, or the written waiver, which he signed. We conclude from our review of the record that the state has met its burden of proof and established that the waiver was made knowingly, voluntarily and intelligently.

C

The defendant next claims that he was high on heroin when he was arrested and, therefore, could not validly have waived his rights. We disagree.

“ ‘To be valid, a waiver must be voluntary, knowing and intelligent. Miranda v. Arizona, 384 U.S. 436, 475, 478, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) ....”’ (Citations omitted.) State v. Stanley, supra, 223 Conn. 686. As stated in part I B, the state bears the burden of proof on this issue and we must scrupulously examine the record to ascertain whether the factual finding made by the trial court is supported by substantial evidence. State v. DaEria, 51 Conn. App. 149, 165-66, 721 A.2d 539 (1998).

The defendant’s claim rests on information contained in an intake screening report that the defendant had used heroin. Yet, in that same report, the defendant denied having used drugs in the previous two week period. Furthermore, the three police officers, who interacted with the defendant during the twelve hour period following his arrest, each testified that the defendant did not appear to exhibit any signs of being intoxicated or under the influence of drugs.

The trial court found that the testimony of the police officers was credible and that the defendant was not under the influence of liquor or drugs. Rather, the trial court found the defendant to have been fully attentive, coherent, loquacious and willing and eager to speak at the time in question. The trial court also found no indication of coercion and determined that the defendant was advised of his Miranda rights, understood them and knowingly, intelligently and voluntarily waived them. We have scrupulously examined the record and we conclude that these factual findings by the trial court are supported by substantial evidence.

II

The defendant finally claims that the trial court abused its discretion in consolidating the four cases for trial because substantial injustice resulted. We disagree.

In determining whether cases should have been consolidated for trial, three factors should be considered: “(1) whether the charges involve discrete, easily distinguished factual scenarios, (2) how long and complex the trial was, and (3) whether one or more of the counts alleges brutal or shocking conduct by the accused. State v. Chance, 236 Conn. 31, 42, 671 A.2d 323 (1996) (Citations omitted.) State v. Stevenson, 43 Conn. App. 680, 686, 686 A.2d 500 (1996), cert. denied, 240 Conn. 920, 692 A.2d 817 (1997). There is a clear presumption in favor of joinder of charges in Connecticut; State v. Chance, supra, 38; and a trial court, pursuant to Practice Book § 41-19, formerly § 829, and General Statutes § 54-57, may order a joint trial for a defendant facing charges of the same character arising from separate cases. On appeal, “[i]t is the defendant’s burden to show that joinder was improper, and to do so he must show substantial prejudice. State v. Boscarino, [204 Conn. 714, 529 A.2d 1260 (1987)]; State v. Rodgers, 198 Conn. 53, 65, 502 A.2d 360 (1985); State v. Bell, [188 Conn. 406, 410, 450 A.2d 356 (1982)]; State v. Jonas, 169 Conn. 566, 570, 363 A.2d 1378 (1975), cert. denied, 424 U.S. 923, 96 S. Ct. 1132, 47 L. Ed. 2d 331 (1976).” State v. Stevenson, supra, 687. “The defendant bears a heavy burden of showing that the denial of severance resulted in substantial injustice and that any resulting prejudice was beyond the curative power of the court’s instructions.” (Internal quotation marks omitted.) Id.

In assessing prejudice, a reviewing court should consider the three factors set out previously. “ ‘[I]f any or all of these factors were present, a reviewing court would have to decide whether the trial court’s jury instructions cured any prejudice that might have occurred.’ ” State v. Home, 215 Conn. 538, 547, 577 A.2d 694 (1990). In this case, while each of the four robberies joined for trial contained many similar facts, the charges against the defendant were distinguishable and the evidence on each of the charges was presented in an orderly fashion. The jury was instructed by the trial court to treat each information separately, both during the trial and in its charge. There was no allegation of brutal and shocking conduct on the part of the defendant, nor was the trial lengthy or complex, lasting nine days, only five and one-half of which were occupied with the taking of evidence. Having considered all of the factors set forth in Stevenson, we conclude that the defendant was not prejudiced by the consolidation of the four cases for trial. We further conclude that the defendant has failed to demonstrate that consolidation resulted in substantial injustice.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in relevant 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 ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. . . .”

       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.'’

       Practice Book § 41-7 provides in relevant part: “A motion made before trial shall be determined prior to trial, unless the judicial authority orders that the ruling be deferred until during the trial of the general issue or until after the verdict. ...”

       Procedurally, the trial court denied the defendant’s pretrial motion for severance and granted the state’s oral motion for consolidation.

       Practice Book § 41-19 provides: “The judicial authority may, upon its own motion or the motion of any party, order that two or more informations, whether against the same defendant or different defendants, be tried together.”

       General Statutes § 54-57 provides: “Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.”


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    JOHN DOE v. DEPARTMENT OF PUBLIC HEALTH ET AL.
    (AC 17520)
    O’Connell, C. J., and Foti and Spear, Js.
    Argued December 2, 1998
    officially released April 6, 1999

      Louis B. Blumenfeld, with whom, on the brief, were Rodd J. Mantell and Lorinda S. Coon, for the appellant (plaintiff).

      Paul J. Lahey and Hugh Barber, assistant attorneys general, with whom, on the brief, were Richard Blumenlhal, attorney general, and Richard J. Lynch,
      assistant attorney general, for the appellees (defendants).
   Opinion

SPEAR, J.

The plaintiff appeals from the judgment of the trial court that dismissed his administrative appeal as premature. In that appeal, the plaintiff claimed that the defendant Connecticut medical examining board (board) improperly refused to dismiss a statement of charges brought against the plaintiff by the defendant department of public health (department).

The first question before us is whether this court has jurisdiction to review this appeal. If we determine that we have jurisdiction, we must then decide whether the trial court properly determined that the plaintiff did not satisfy the requirements of General Statutes § 4-183 (b), which authorizes appeals from the interlocutory rulings of administrative agencies. Section 4-183 (b) provides that “[a] person may appeal a preliminary, procedural or intermediate agency action or ruling to the Superior Court if (1) it appears likely that the person will otherwise qualify under this chapter to appeal from the final agency action or ruling and (2) postponement of the appeal would result in an inadequate remedy.” The defendants concede that subdivision (1) is satisfied here.

The plaintiff claims that the requirements for such an appeal were met here because the agency remedy is inadequate in two respects. First, the department’s failure to complete its investigation in a timely manner, as required by General Statutes § 20-13e (a), deprived the board of jurisdiction and, therefore, the proceedings before the board constitute a continuing violation of the plaintiffs constitutional right to due process. Second, the agency record will be available to the public prior to a final decision by the board, thereby depriving the plaintiff of the confidentiality that is necessary to protect his professional reputation.

The defendants assert that this court lacks jurisdiction because the trial court’s dismissal of the plaintiffs administrative appeal is not a final judgment. In the event that we disagree with their jurisdictional claim, the defendants posit two reasons why the trial court’s dismissal should be affirmed. They first assert that a claim that an agency action violates a person’s constitutional rights must await the final agency decision, unless the agency remedy is demonstrably futile. Here, the plaintiff has shown neither a colorable claim of a violation of his constitutional rights nor that the agency remedy is demonstrably futile. They further assert that the agency proceeding provides an adequate remedy to the plaintiff because any damage to the plaintiffs reputation is simply an indirect result of the proceeding itself. We first conclude that this court has jurisdiction to review this appeal. We further conclude that the plaintiff has an adequate administrative remedy and, therefore, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to the disposition of this appeal. The plaintiff is a physician licensed by the department. On or about July 16,1993, a petition was filed with the department pursuant to General Statutes § 20-13e (a), alleging certain misconduct in the plaintiffs care and treatment of a patient between September 7, 1989, and November 5, 1990. The department did not complete its investigation of the petition until April 15, 1996. On that day, the department filed charges against the plaintiff that alleged that the plaintiff had engaged in illegal, incompetent or negligent conduct in the practice of medicine in violation of General Statutes § 20-13c (4), and requested that the board take appropriate action, including the revocation of the plaintiffs medical and surgical license.

Thereafter, the plaintiff filed a motion to dismiss the charges. He alleged that in concluding its investigation thirty-three months after the petition was filed, the department failed to comply with the eighteen month time limitation of § 20-13e (a), thereby depriving the board of jurisdiction over the matter. The board denied the motion to dismiss the charges because it concluded that the eighteen month time limit set out in § 20-13 (e) was not jurisdictional in nature and that the department’s failure to comply with it did not, therefore, prevent the board from hearing the matter. The plaintiff appealed to the Superior Court, pursuant to § 4-183 (b), from the board’s denial of his motion to dismiss. The department then filed a motion to dismiss the plaintiffs administrative appeal, in which it claimed that the plaintiffs failure to exhaust all available administrative remedies deprived the Superior Court of subject matter jurisdiction. The trial court granted the motion because it determined that the plaintiff had an adequate remedy in the administrative proceeding. This appeal followed.

Because the defendants challenge the subject matter jurisdiction of this court, we must first address that claim. “Whenever a claim of lack of jurisdiction is brought to the court’s attention, it must be resolved before the court can proceed. Castro v. Viera, 207 Conn. 420, 429, 541 A.2d 1216 (1988); Vincenzo v. Warden, 26 Conn. App. 132, 135, 599 A.2d 31 (1991).” Gallant v. Cavallaro, 50 Conn. App. 132, 134, 717 A.2d 283, cert. denied, 247 Conn. 936, 722 A.2d 1216 (1998), cert. denied, 528 U.S. 1005, 120 S. Ct. 500, 145 L. Ed. 2d 386 (1999).

The plaintiffs appeal arises from a decision of an administrative agency and is governed, therefore, by the requirements of the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. Under the UAPA, “further appellate review of superior court rulings on administrative appeals is limited to cases in which the Superior Court has rendered a final judgment. General Statutes § 4-184. That statutory provision accords with the general proposition that, except in special cases, such as appeals upon reservations; State v. Sanabria, 192 Conn. 671, 681-85, 474 A.2d 760 (1984); or upon certification pursuant to General Statutes § 52-265a; Laurel Park, Inc. v. Pac, 194 Conn. 677, 678-79 n.1, 485 A.2d 1272 (1984); the jurisdiction of this court is restricted to appeals from judgments that are final.” (Internal quotation marks omitted.) Reardon v. Dept. of Public Health & Addiction Services, 37 Conn. App. 694, 696-97, 657 A.2d 702 (1995).

In Reardon, this court determined that “[a]n order of the trial court dismissing an administrative appeal for lack of subject matter jurisdiction under UAPA has been considered a final judgment for purposes of appeal; see Lewis v. Gaming Policy Board, 224 Conn. 693, 620 A.2d 780 (1993); even if the administrative proceeding itself has not yet been finally resolved. See Cannata v. Dept. of Environmental Protection, 215 Conn. 616, 577 A.2d 1017 (1990).” Reardon v. Dept. of Public Health & Addiction Services, supra, 37 Conn. App. 697. While in Reardon, this court recognized that both Lewis and Cannata involved dismissal by the trial court pursuant to § 4-183 (a) for failure to exhaust administrative remedies, the court nevertheless saw no reason why a failure to satisfy the requirements of § 4-183 (b) would require a different result. Id. The Reardon court stated: “This conclusion is consistent with the rule regarding appealable interlocutory orders articulated in State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983). Under Curdo, where an order or action so concludes the rights of the parties that further proceedings cannot affect them, the order is immediately appealable. Id., 31.” Reardon v. Dept. of Public Health & Addiction Services, supra, 697-98.

Here, as in Reardon, the trial court dismissed the plaintiffs appeal for lack of subject matter jurisdiction, thereby concluding the plaintiffs right to appeal under § 4-183 (b) . We agree with the rationale of the Reardon court that any right the plaintiff has to an interlocutory appeal will be lost if it is not now determined. We, therefore, reject the defendants’ request that we overrule Reardon and conclude that the plaintiff has properly appealed from a final judgment.

We now address whether the trial court properly dismissed the plaintiffs interlocutory appeal. We agree with the trial court that the plaintiff has an adequate remedy in his administrative hearing before the board with Superior Court review available pursuant to § 4-183 (j). Thus, an appeal pursuant to § 4-183 (b) is not warranted.

Section 4-183 (b) reflects the principle that exhaustion of administrative remedies is required except in exceptional circumstances. See, e.g., Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 558, 630 A.2d 1304 (1993); Housing Authority v. Papandrea, 222 Conn. 414, 420, 610 A.2d 637 (1992). Our Supreme Court has “recognized such exceptions only infrequently and only for narrowly defined purposes.” (Internal quotation marks omitted.) Polymer Resources, Ltd. v. Keeney, supra, 561, quoting Pet v. Dept. of Health Services, 207 Conn. 346, 353, 542 A.2d 672 (1988).

The defendants do not dispute that the plaintiff satisfies the first prong of § 4-183 (b). The plaintiff asserts that he also satisfies the second prong of § 4-183 (b) in that “postponing the present appeal provides an inadequate remedy because the agency’s decision adversely impacts upon an entrenched property right, [his] medical license, without proper statutory authority, thereby depriving [him] of due process.” We disagree.

In Johnson v. Dept. of Public Health, 48 Conn. App. 102, 113, 710 A.2d 176 (1998), a recent case decided by this court with facts similar to this case, we stated: “Two recognized exceptions to the exhaustion doctrine are in circumstances in which recourse to the administrative remedy would be inadequate or demonstrably futile. . . . Exhaustion is not required simply because the plaintiff has brought an interlocutory appeal under § 4-183 (b) challenging the jurisdiction of the department to hear and decide his licensure.” In Johnson, where a nursing home administrator brought an interlocutory appeal from an agency’s denial of his motion to dismiss the department’s administrative action that brought charges against him, we stated that the plaintiff in that case failed to satisfy the second prong of § 4-183 (b) because “nothing has happened to the plaintiffs license issued to him by the department. He is still licensed to operate a nursing home facility and is operating the facility involved. The department has decided nothing except to bring charges against him, against which he will have the right to defend fully prior to any decision by that agency on his licensure. WMle it is true that exhaustion may be excused where recourse to the administrative remedy would be futile or inadequate, the plaintiff has not demonstrated that resort to agency action will be futile. The mere allegation that it will prove so is not cognizable.” Id.

We discern no reason why the analysis in Johnson should not be applied to this case. Here, the plaintiff physician has not been denied any right to practice his profession. Because no formal hearings on the pending charges have yet been held and no determination has been made concerning his medical license, the plaintiffs claim is meritless. See id., 116.

The plaintiff specifically claims that “the defendants’ continued investigation and prosecution is causing irreparable harm to his constitutional property right in his medical license” and that “his license and professional reputation cannot be sullied by the defendants (state actors) until due process requirements have been satisfied.” The gravamen of the plaintiffs claim is that he fears that in continuing in the administrative forum, the department’s records will remain open to public inspection until all of his administrative remedies are exhausted, and he will effectively be denied a “large part of the relief sought, specifically, confidentiality,” which will damage his professional reputation.

Our Supreme Court has previously recognized, however, that damage of this type is an indirect result of an agency proceeding and is not the sort of irreparable harm that would justify immediate resort to the courts. In Pet v. Dept. of Health Services, supra, 207 Conn. 373, the court stated that the plaintiff in that case “complained] in great measure about injuries that are the indirect result of the initiation of the action itself. The reaction of former and prospective patients, insurance carriers, other physicians and the general public, although unfortunate since only charges have been made, is not of the defendants’ doing . . . .” Here, the plaintiff cannot demonstrate any damage or injury, but points to possible future injury to his professional reputation. Like the plaintiff physician in Pet, the plaintiff in this case seeks “a finding that he has committed no wrongdoing and is capable to practice medicine. This remedy is precisely what the board is empowered to provide. [The Supreme Court] has permitted interruption of administrative remedies in circumstances where the agency is incapable of providing an adequate remedy. See, e.g., Dukes v. Durante, 192 Conn. 207, 223-24, 471 A.2d 1368 (1984); Cahill v. Board of Education, 187 Conn. 94, 444 A.2d 907 (1982).” (Emphasis added.) Pet v. Dept. of Health Services, supra, 371; cf. Johnson v. Statewide Grievance Committee, 248 Conn. 87, 106-107, 726 A.2d 1154 (1999). Here, the board is capable of providing an adequate remedy because completing the administrative proceedings could provide the plaintiff with complete vindication. An immediate appeal to the court is therefore unwarranted.

Because the plaintiff fails to satisfy the second prong of § 4-183 (b), the trial court’s dismissal of the plaintiffs interlocutory appeal was proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court granted the plaintiffs ex parte motion to prosecute this matter under a fictitious name.

       General Statutes § 20-13e (a) provides: “The department shall investigate each petition filed pursuant to section 20-13d, in accordance with the provisions of subdivision (10) of subsection (a) of section 19a-14 to determine if probable cause exists to issue a statement of charges and to institute proceedings against the physician under subsection (e). Such investigation shall be concluded not later than eighteen months from the date the petition is filed with the department and, unless otherwise specified by this subsection, the record of such investigation shall be deemed a public record, in accordance with section 1-210, at the conclusion of such eighteen-month period. Any such investigation shall be confidential and no person shall disclose his knowledge of such investigation to a third party unless the physician requests that such investigation and disclosure be open. If the department determines that probable cause exists to issue a statement of charges, the entire record of such proceeding shall be public unless the department determines that the physician is an appropriate candidate for participation in a rehabilitation program in accordance with subsection (b) and the physician agrees to participate in such program in accordance with terms agreed upon by the department and the physician. If at any time subsequent to the filing of a petition and during the eighteen-month period, the department makes a finding of no probable cause, the petition and the entire record of such investigation shall remain confidential unless the physician requests that such petition and record be open.”

       See footnote 2.

       General Statutes § 20-13c provides in relevant part: “The board is authorized to restrict, suspend or revoke the license or limit the right to practice of a physician or take any other action in accordance with section 19a-17, for any of the following reasons ... (4) illegal, incompetent or negligent conduct in the practice of medicine . . . .”

       General Statutes § 4-183 (b) provides: “A person may appeal a preliminary, procedural or intermediate agency action or ruling to the Superior Court if (1) it appears likely that the person will otherwise qualify under this chapter to appeal form the final agency action or ruling and (2) postponement of the appeal would result in an inadequate remedy.”

       Because our determination of this appeal involves the interpretation of a statute and is, therefore, a question of law, this court must review the trial court’s ruling de novo. Murchison v. Civil Service Commission, 234 Conn. 35, 43, 660 A.2d 850(1995); Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 396, 655 A.2d 759 (1995).

       General Statutes § 4-183 (j) provides in relevant part: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. . . .”

       See footnote 5.


author: LANDAU, J.

text:
    VICKI ANN FORD v. THOMAS EDWARD FORD
    (AC 17225)
    O’Connell, C. J., and Foti and Landau, Js.
    Argued December 8, 1998
    officially released April 6, 1999

      Max F. Brunswick, for the appellant (defendant).

      Morris I. Olmer; with whom, on the brief, was Robert C. Bird, for the appellee (plaintiff).
   Opinion

LANDAU, J.

The defendant, Thomas Edward Ford, appeals from a postdissolution judgment holding him in wilful contempt and entering orders addressed to his alimony arrearage. The dispositive issue on appeal arises from the trial court’s denial of a motion for recu-sal. We must decide whether, under the circumstances of this case, the trial judge’s continuing to preside at the hearing created an appearance of impropriety, which required his recusal. We conclude that it did. Because our resolution of this issue is dispositive, it is unnecessary to consider the other issues raised on appeal.

The following facts and procedural posture are necessary for the resolution of this appeal. On September 6, 1996, at a contempt hearing, the defendant’s former counsel, Joseph Chiarelli, testified that he had an agreement with plaintiffs counsel some years prior to the contempt proceeding regarding the suspension of alimony payments, which were the subject of the contempt hearing. The hearing was continued and the trial court heard additional testimony on October 17, 1996, and again on October 21, 1996. The plaintiffs former counsel, Louis Parley, testified at the October 21, 1996 hearing that he could not recall whether he had an agreement with Chiarelli.

Following the September 6, 1996 hearing, the trial court, Skolnick, J., and Chiarelli were involved in an unrelated matter. Gordon v. Gordon, Superior Court, judicial district of New Haven, Docket No. 387386 (September 10, 1996). In Gordon, the trial court granted Chiarelli’s motion for recusal, stating, “I’m going to recuse myself from all of your matters . . . [bjecause I do not approve of the way you handle yourself.” In the present case, on October 17, 1996, the defendant filed a motion for recusal of the trial judge, arguing that on the basis of the exchange between Chiarelli and the trial judge in Gordon, the judge was biased. The trial court denied the motion on the same day.

At the conclusion of the hearing, the trial court found the defendant in contempt and found that an arrearage existed toward which the defendant should pay an additional sum each week. This appeal followed.

This action is not the first instance in which this trial judge and this attorney have been the principal players. See Consiglio v. Consiglio, 48 Conn. App. 654, 711 A.2d 765 (1998), and Gordon v. Gordon, supra, Superior Court, Docket No. 387386. In both prior instances, however, Chiarelli appeared before the trial court as an attorney; in this instance, he appeared as a witness. The defendant claims that the prior conversations between the trial judge and Chiarelli and Chiarelli’s role as the defendant’s chief witness in this action constitute a strong appearance of conflict of interest and partiality.

The plaintiff responds that the only evidence of unfairness to which the defendant can point occurred in an unrelated matter in which Chiarelli acted as an attorney and not as a witness. Furthermore, the prior recusal was based on Chiarelli’s actions as an attorney, not on his credibility. The plaintiff also asserts that even if the trial judge was biased against Chiarelli, the finding of contempt does not constitute reversible error because no legal authority exists to support a defense in a contempt proceeding that alleges that the action is excused or justified because an attorney instructed his client to violate a court order. We agree with the defendant.

“No more elementary statement concerning the judiciary can be made than that the conduct of the trial judge must be characterized by the highest degree of impartiality. If he departs from this standard, he casts serious reflection upon the system of which he is a part. A judge is not an umpire in a forensic encounter. . . . He is a minister of justice. . . . He may, of course, take all reasonable steps necessary for the orderly progress of the trial. ... In whatever he does, however, the trial judge should be cautious and circumspect in his language and conduct. A judge should be scrupulous to refrain from hearing matters which he feels he cannot approach in the utmost spirit of fairness and to avoid the appearance of prejudice as regards either the parties or the issues before him. . . . Cameron v. Cameron, 187 Conn. 163, 168-69, 444 A.2d 915 (1982). Moreover, disqualification of a trial judge is not dependent upon proof of actual bias. The appearance and the existence of impartiality are both essential elements of a fair trial. Id. Canon 3 (c) (1) of the Code of Judicial Conduct requires a judge to disqualify himself in any proceeding in which judicial impartiality might reasonably be doubted. Any conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned is a basis for the judge’s disqualification. . . . Postemski v. Landon, 9 Conn. App. 320, 322, 518 A.2d 674 (1986).

“It is [the judge’s] responsibility to have the trial conducted in a manner which approaches an atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding. State v. Echols, 170 Conn. 11, 13, 364 A.2d 225 (1975), quoting Glasser v. United States, 315 U.S. 60, 82, 62 S. Ct. 457, 86 L. Ed. 680 (1942). . . . Cameron v. Cameron, supra, 187 Conn. 169.

“[E]very litigant is entitled to nothing less than the cold neutrality of an impartial judge. It is the duty of [c]ourts to scrupulously guard this right and to refrain from attempting to exercise jurisdiction in any matter where his qualification to do so is seriously brought in question. The exercise of any other policy tends to discredit the judiciary and shadow the administration ofjusti.ee. It is not enough for a judge to assert that he is free from prejudice. His mien and the reflex from his court room speak louder than he can declaim on this point. If he fails through these avenues to reflect justice and square dealing, his usefulness is destroyed. The attitude of the judge and the atmosphere of the court room should indeed be such that no matter what charge is lodged against a litigant or what cause he is called on to litigate, he can approach the bar with every assurance that he is in a forum where the judicial ermine is everything that it typifies — purity and justice. The guaranty of a fair and impartial trial can mean nothing less than this. Hayslip v. Douglas, 400 So. 2d 553, 557 (Fla. App. 1981), quoting State ex rel. Davis v. Parks, 141 Fla. 516, 519-20, 194 So. 613 (1939).” (Internal quotation marks omitted.) Consiglio v. Consiglio, supra, 48 Conn. App. 659-60.

Furthermore, “an inquiry into disqualification of a judge requires a sensitive evaluation of all the facts and circumstances in order to determine whether a failure to disqualify the judge was an abuse of sound judicial discretion.” Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 823, 717 A.2d 1232 (1998). “Accordingly, our review ordinarily is limited to the question of whether a trial judge has abused his discretion.” Id., 824.

The plaintiff first asserts that the prior recusal of the trial judge involved Chiarefli’s status as an attorney and that in this action he was a witness. Under these circumstances, this is a distinction without a difference. “Once [a judge] declares that he believes a party or a witness has been deceitful ... he cannot continue to preside in his role of impartial arbiter.” Cameron v. Cameron, supra, 187 Conn. 170. While the trial judge, in prior proceedings, did not characterize Chiarelli as “deceitful,” he did state, “I do not approve of the way you handle yourself’ and recused himself from all matters involving Chiarelli.

The plaintiff also maintains that Chiarelli’s testimony was not material and that his credibility, therefore, was not really at issue. We disagree.

“In order to constitute contempt, a party’s conduct must be wilful. Connolly v. Connolly, 191 Conn. 468, 483, 464 A.2d 837 (1983). The contempt remedy is particularly harsh . . . and may be founded solely upon some clear and express direction of the court. . . . Blaydes v. Blaydes, 187 Conn. 464, 467, 446 A.2d 825 (1982). A good faith dispute or legitimate misunderstanding of the terms of an alimony or support obligation may prevent a finding that the payor’s nonpayment was wilful. This does not mean, however, that such a dispute or misunderstanding will preclude a finding of wilfulness as a predicate to a judgment of contempt. Whether it will preclude such a finding is ultimately within the trial court’s discretion. It is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court’s order. Marcil v. Marcil, 4 Conn. App. 403, 405, 494 A.2d 620 (1985).” (Internal quotation marks omitted.) Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998). The contempt remedy is particularly drastic. “In the summer of 1631 at the Salisbury assizes, a prisoner aggravated at his sentence ‘ject un Brickbat a le dit Justice que narrowly mist . . . .’ An indictment was immediately drawn and ‘son dexter manus ampute & fix al Gibbet sur que luy mesme immediatement hange in presence de Court.’ ” While a misunderstanding or good faith dispute regarding the failure to honor a court order is ultimately within the trial court’s discretion; Marcil v. Marcil, supra, 405; the exercise of the trial court’s discretion must be surrounded by a pureness and chastity untainted by the appearance of partiality.

Undertaking the necessary review, we must decide whether the circumstances in this case would have led an objective observer reasonably to question the trial judge’s impartiality. Following the September 6, 1996 hearing, the contempt proceeding was continued until October 17, 1996. Thereafter, on September 10, 1996, the trial judge in Gordon v. Gordon, supra, Superior Court, Docket No. 387386, recused himself from all of Chiarelli’s matters. Approximately one month later, the defendant in the present case filed a motion for recusal on the basis of the conversation between the trial judge and Chiarelli in Gordon. The trial court denied that motion. Those actions can hardly be said to preclude the defendant’s questioning of the trial judge’s impartiality, as he is now aware of prior instances that he believes indicate that the trial judge dislikes his chief witness, Chiarelli. Rather, actions such as these “inevitably [raise] in the minds of litigants ... a suspicion as to the fairness of the court’s administration of justice.” (Internal quotation marks omitted.) Cameron v. Cameron, supra, 187 Conn. 171.

On the basis of the record before us, we are persuaded that a reasonable person knowing all of the circumstances might be apprehensive and concerned on learning that the trial judge, who must fashion a discretionary decision, has had critical and adverse feelings concerning a significant witness and had recused himself as a result of his experience with the individual in a prior proceeding. Accordingly, we conclude that the trial judge improperly exercised his discretion when he failed to grant the motion for recusal.

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

In this opinion the other judges concurred.

       The defendant also claims on appeal that the trial court improperly (1) sustained an objection to a question posed to the defendant’s former attorney and chief defense witness, Joseph Chiarelli, regarding whether Chiarelli instructed the defendant not to comply with the alimony order, (2) found that there was sufficient evidence to support its finding of wilful contempt and (3) exercised its discretion in ordering the defendant to resume payments and to increase his alimony obligations.

       At oral argument before this court, the plaintiff asserted that she originally filed an application for a rule to show cause primarily seeking a determination as to whether in fact there was an arrearage in this case. The plaintiff also argued that the contempt issue was almost immaterial but conceded that the issue was before the trial court. The defendant filed an objection to what he described as the plaintiffs motion for contempt. The trial court, in its memorandum of decision, refers to the plaintiffs motion for contempt and rule to show cause. Because the parties treated the application as a motion for contempt, and neither party objected to the trial court’s treating it as a motion for contempt, we will do likewise. See Doe v. Marselle, 38 Conn. App. 360, 363-64, 660 A.2d 871 (1995), rev’d on other grounds, 236 Conn. 845, 675 A.2d 835 (1996), citing Crozier v. Zaboori, 14 Conn. App. 457, 463, 541 A.2d 531 (1988).

       The following colloquy occurred during the trial in Gordon v. Gordon, supra, Superior Court, Docket No. 387386:
      “[Chiarelli]: Okay, Judge, as I’m sitting here it occurs to me that I should make a motion to disqualify you in the hearing of any case that I’m involved in. You are—
      “The Court: Well, if it occurs to you, are you making that—
      “[Chiarelli]: Well, I’d like to address to you—
      “The Court: Are you making that motion?
      “[Chiarelli]: I’m making that motion now, Judge. And the reason is that we had very hard feelings against one another in my recollection while you were practicing law. And I thought that when you got on the bench that your attitude toward me changed. But, now I—
      “The Court: Mr. Chiarelli, from my own—
      “[Chiarelli]: Can I finish, Judge?
      “The Court: Yes. [For my] own curiosity, would you refer to when that was because you and I didn’t practice the same type of law and unless you were defending malpractice cases I can’t imagine ever having a case with you—

        “[Chiarelli]: No, no, no, no, that isn’t how.
      “The Court: Oh.
      “[Chiarelli]: It was our reaction to one another when we saw one another. And you were associated with Miss Daskal Rubin. Am I correct, Judge?
      “The Court: That’s correct.
      “[Chiarelli]: Yes. Okay. And I think because of the way you have been so critical of me for nothing here. This woman has come here and complained about nothing. You picked up on it right away. And you started letting me have it for what I think is no cause. So, I think that these hard feelings that you have against me for when I practiced law and when you practiced law at the same time have carried over to while you’re a judge—
      “The Court: Mr. Chiarelli—
      “[Chiarelli]: Yes, sir.
      “The Court: Did you and I ever have a matter together in all the years that I practiced?
      “[Chiarelli]: I can’t think of one off the top of my head, Judge.
      “The Court.: And the reason you can’t is I don’t think we ever did.
      “[Chiarelli]: Yes. But, you have a dislike for me and I had a dislike for you. But, I got over my dislike for you. It’s obvious to me that you didn’t get over your dislike for me, making these comments to me. Being critical of what I said to this woman on a telephone answering machine—
      “The Court: Mr.—
      “[Chiarelli]: It seems that you seize on every opportunity to insult me. And I don’t like it and I don’t want to practice law—
      “The Court: And I don’t want you raising your voice in my courtroom, Mr. Chiarelli.
      “[Chiarelli]: Oh, I’m sorry. I’m sorry if I raised my voice. I apologize to you, Judge.
      “The Court: Because in one second I’m going to tell the sheriff to escort you right through that door.
      “[Chiarelli]: Okay—
      “The Court,: Now, sit down.
      “[Chiarelli]: Sure, Judge.
      “The Court: And I will tell you that the only thing that is keeping me from doing exactly what you said was that I have some feeling for my brethren.
      “[Chiarelli]: Yes, thank you.
      “The Court: But, I’m going to grant your request.
      “[Chiarelli]: Thank you, Judge.
      “The Court: And I’m going to recuse myself from all of your matters.
      “[Chiarelli]: Okay, thank you very much, Your Honor.
      “The Court: Because I do not approve of the way you handle yourself.”

       Canon 3 (c) (1) of the Code of Judicial Conduct provides in relevant part: “A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (A) the judge has a personal bias or prejudice concerning a party . . . .”

       The only authority on which the defendant relies in support of this argument is Perlmutter v. Johnson, 6 Conn. App. 292, 295, 505 A.2d 13, cert. denied, 200 Conn. 801, 509 A.2d 517 (1986), cert. denied, 479 U.S. 1035, 107 S. Ct. 886, 93 L. Ed. 2d 839 (1987). The defendant’s reliance on that case, however, is misplaced. In Perlmutter, the court noted that the prior appearance of a party before a trial judge does not, in itself, reflect on the judge’s impartiality in a subsequent action involving that party. The defendant in this action, however, does not claim that the fact that Chiarelli appeared before Judge Skolnick in prior cases mandates his disqualification in this case. Rather, the defendant claims that based on what transpired in the prior cases involving Chiarelli, he reasonably could believe that he was unable to receive a fair hearing before this trial judge. See, e.g., Consiglio v. Consiglio, supra, 48 Conn. App. 660-61 (on the basis of discussion regarding trial judge’s recusal on all matters involving Chiarelli, plaintiff reasonably could have believed that he would be unable to receive fair trial before trial judge).

       D. Dobbs, “Contempt of Court: A Survey,” 56 Cornell L. Rev. 183, 187 (1971), quoting Anonymous, Dyer 188b (note) (1688 reprint). “A later report carries the translation from law French as follows: ‘[The prisoner] threw a brickbat at the said Judge, which narrowly missed; and for this an indictment was immediately drawn by Noy against the prisoner, and his right hand cut off and fixed to the gibbet, upon which he was himself immediately hanged in the presence of the Court.’ ” Id., 187 n.9, quoting 73 Eng. Rep. 416 n. (1631).

       “O, it is excellent
      To have a giant’s strength; but it is tyrannous
      To use it like a giant!”
      William Shakespeare, Measure for Measure, act 2, sc. u, lines 107-109.


author: HEALEY, J.

text:
    STATE OF CONNECTICUT v. DONNIE LEWIS GILBERT
    (AC 16536)
    Landau, Spear and Healey, Js.

      Argued December 15, 1998
    officially released April 6, 1999

      Conrad Ost Seifert, with whom, on the brief, was William W. Fisher, Jr., for the appellant (defendant).

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

HEALEY, J.

The sole issue of this appeal is whether there was sufficient evidence to prove beyond a reasonable doubt that the defendant was guilty of possession of a narcotic substance, i.e., cocaine, with the intent to sell in violation of General Statutes § 2 la-278 (b). We find the evidence sufficient to support the defendant’s conviction, and we affirm the judgment.

The jury reasonably could have found the following facts. On December 6, 1995, at about 8:30 p.m., Trooper Robert Bardelli of the Connecticut state police and Officer Sean Dautrich of the New London police department were both assigned to the east office of the statewide narcotics task force. At that time, they were conducting surveillance on Summer Street, an area of high volume drug activity. Bardelli and Dautrich had received information of drug activity at a two-story house located at 33 Summer Street. The officers had set up their surveillance on December 6, 1995, for the purpose of gathering information to be used at a later date. Both officers were in plain clothes and were seated in an unmarked car across the street from 33 Summer Street approximately seventy-five to 100 feet away. Although it was night, there was sufficient lighting. There was a light on the front porch of 33 Summer Street, and the house was illuminated by streetlights, although there was no streetlight directly in front of the house. Traffic on that section of Summer Street is one-way.

During their surveillance, the two officers saw five or six males in front of 33 Summer Street. They recognized several men including the defendant, Douglas Foy and Harry McMurray. Dautrich was acquainted with the defendant because Dautrich’s beat included Summer Street. Both the defendant and Foy are black males and wore dark rain suits. The defendant is taller than Foy.

During the surveillance, the officers observed the defendant come down the front porch stairs of 33 Summer Street and meet vehicles that came down Summer Street and stopped at that address. The defendant would lean into a stopped vehicle, then stand up and that vehicle would leave the scene. At that point, the defendant would go around to the side of 33 Summer Street, out of the sight of both Bardelli and Dautrich for a short period of time, and come back and stand near the doorway as he had earlier. The officers observed the defendant repeat that process on at least three occasions. Although Bardelli said that he did not see an exchange of items between the defendant and the vehicles’ occupants, he believed on the basis of his training and experience that he was observing narcotics transactions.

Additionally, on at least two occasions, the officers saw the smaller black male in a rain suit do the same thing as the defendant. There were also people walking up to the two men in the rain suits and to Bardelli “it looked like they were making exchanges.”

Thereafter, about twenty-five minutes into their surveillance, a clearly marked New London police cruiser pulled up to 33 Summer Street. This cruiser was occupied by Officers Joohno Song and Kyle Baskett. Each officer was in uniform. Both Song and Baskett were unaware of the surveillance being conducted by Bardelli and Dautrich. As the cruiser approached 33 Summer Street, Song noticed four to five people on the porch and front steps of that building. He turned on the cruiser spotlight and Baskett turned on the left alley light to make the area more visible. Song recognized three persons, Harry McMurray, James Cook and the defendant. Baskett recognized three persons, including the defendant, who was standing in the doorway. When the alley light was put on, the defendant and the shorter male in the dark rain suit both ran inside the front door of 33 Summer Street. The defendant and the shorter male were the only ones who fled when the area was illuminated by the cruiser lights. As Song and Baskett were exiting their cruiser, they heard a message on their radio from Dautrich to stop the two men that were going inside the house. Bardelli and Dautrich then exited the unmarked car and joined the pursuit. Bardelli and one of the uniformed officers went into the house and ran upstairs. Bardelli observed the two men in the rain suits run up the stairs to the second floor. Dautrich had gone to the rear door of the building, which was shut and barred access. Later, he was joined at the rear of the building by Song.

At about 8:30 p.m. on December 6, 1995, Melissa Caisse was in the second floor apartment of 33 Summer Street. She had come there with a friend, Beatrice White, to see Joey Lewis’ daughter. Although this was Lewis’ apartment, Lewis was not there at that time. Several people other than Caisse and White were also in the apartment, including a person named Justice and one named Chicago. The defendant and Foy came into the apartment after these people had arrived. Thereafter, there was a knock on the door whereupon the defendant and Foy immediately went out the back door of the apartment. No one else left the apartment. A woman answered the door. Bardelli told her that they were police officers and that they had seen two people run up to the second floor. She said that nobody had run into the apartment. Although the officers looked around the apartment, they did not see the two persons they had pursued up the stairs.

In the meantime, Dautrich remained downstairs outside the closed rear door of the building. That door had several panes of glass covered by a curtain. Two persons were attempting to exit the back door. Suddenly, the curtain on the door moved and Dautrich saw the defendant looking out at him. Dautrich also saw another person with the defendant but did not recognize him. Both individuals inside then ran up the rear stairs.

Bardelli heard somebody shout that the two men were trying to get around to the back of the house. Bardelli and the police officer with him went through the back door of the second floor apartment that led to a foyer, which accessed the rear part of the house. In the foyer, they found piles of trash bags and the defendant and Foy in rain suits hiding among the garbage bags. The officers pulled both from among the garbage bags and brought them back into the Lewis apartment. They checked each of them for weapons and nar cotics, but found nothing.

Bardelli then told some of the officers to look around the side of the building where they had observed the defendant during their surveillance and to check the area for narcotics. Dautrich, Song and Baskett took part in this search. Baskett discovered a paper bag under a set of stairs to a side door. Inside the paper-bag was a plastic bag in which were thirteen smaller bags containing a white rock-like substance. The paper-bag, however, was discarded by the police as they already had the plastic bag containing thirteen individual bags. Those bags were turned over to Bardelli. Field testing performed by Bardelli and Dautrich was positive for the presumptive presence of cocaine. Tests later performed by the state toxicology laboratory found that the substance contained crack cocaine.

After the crack cocaine was found, Bardelli arrested the defendant and seized $479 and a beeper from him. The defendant was unable to tell Bardelli how much money he had on his person and refused to tell him where he had obtained the money. At the time of his arrest, the defendant was not employed but did odd jobs for which he did not receive pay stubs.

The state’s expert testified that in December, 1995, the price of a single rock of cocaine in New London was approximately $20, sometimes, two for $35. According to expert testimony at the trial, when a person is in possession of thirteen bags of crack cocaine, such possession is more consistent with possession with intent to sell than with possession for personal use. Often street level dealers, fearful of apprehension or theft, do not keep the drugs they offer for sale on their own person. There was expert testimony that drugs are kept close to the scene of the sale in an area that is accessible to dealers and that “gives them a certain control over the amount of drugs in the stash.”

The standard of review for a sufficiency of the evidence claim is well settled. “Our Supreme Court has stated: ‘In reviewing [a] sufficiency [of evidence] claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.’ . . . State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994), quoting State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993); State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991); State v. Weinberg, 215 Conn. 231, 253, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990).” State v. Ingram, 43 Conn. App. 801, 809, 687 A.2d 1279 (1996), cert. denied, 240 Conn. 908, 689 A.2d 472 (1997); see also State v. Torres, 47 Conn. App. 205, 219, 703 A.2d 1164 (1997).

In Ingram, this court said: “ ‘We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. State v. Robinson, 213 Conn. 243, 254, 567 A.2d 1173 (1989).’ State v. Lago, 28 Conn. App. 9, 30, 611 A.2d 866, cert. denied, 223 Conn. 919, 614 A.2d 828 (1992). It has been ‘repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. State v. Haddad, 189 Conn. 383, 390, 456 A.2d 316 (1983); State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981). It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. State v. Perez, supra, 227 .... State v. Braxton, [196 Conn. 685, 691, 495 A.2d 273 (1985)].’ . . . State v. King, 216 Conn. 585, 602, 583 A.2d 896 (1990); State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984). ‘[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ . . . State v. Boykin, 27 Conn. App. 558, 563-64, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992).” (Emphasis in original.) State v. Ingram, supra, 43 Conn. App. 810.

It bears repeating that “ ‘[i]n evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence.’ State v. DeJesus, 236 Conn. 189, 195, 672 A.2d 488 (1996). ‘As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt; State v. Ford, 230 Conn. 686, 693, 646 A.2d 147 (1994); State v. Patterson, [229 Conn. 328, 332, 641 A.2d 123 (1994)]; State v. Little, 194 Conn. 665, 671-72, 485 A.2d 913 (1984); nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.’ . . . State v. DeJesus, supra, 196; see also State v. Sivri, [supra, 231 Conn. 134].” State v. Torres, 242 Conn. 485, 490, 698 A.2d 898 (1997).

Furthermore, we are aware that “[w]e do not sit as the ‘seventh juror’ when we review the sufficiency of the evidence; State v. King, [supra, 216 Conn. 602]; rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury’s verdict of guilt beyond a reasonable doubt. Moreover, ‘[i]n reviewing the jury verdict, it is well to remember that [j]urors are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.’ . . . State v. Little, supra, 194 Conn. 674.” State v. Ford, supra, 230 Conn. 693.

“In order to prove possession of a narcotic substance, the state must establish beyond a reasonable doubt that the accused knew of the character of the drug and its presence and exercised dominion and control over it. . . . Where, as in the present case, the contraband is not found on the defendant’s person, the state must proceed on the alternate theory of constructive possession, that is, possession without direct physical contact. . . . Where the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference. . . . State v. Frazier, 39 Conn. App. 369, 378-79, 665 A.2d 142 (1995).” (Internal quotation marks omitted.) State v. Thompson, 46 Conn. App. 791, 797-98, 700 A.2d 1198 (1997); see also State v. Brunori, 22 Conn. App. 431, 435-36, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990).

In our analysis, we recognize that “it is well settled that if the contraband is found in a place where the defendant does not have exclusive possession, the presence of the defendant near the contraband without more is insufficient to support an inference of possession. See State v. Alfonso, [195 Conn. 624, 634—35, 490 A.2d 75 (1985)] . . . (Emphasis added.) State v. Bru-nori, supra, 22 Conn. App. 436. The evidence before the jury permitted it to draw properly the inference of constructive possession. Summer Street was particularly well known for its high level of narcotic transactions. During their surveillance of 33 Summer Street on December 6, 1995, the police observed the defendant on at least three occasions come down from the front porch as a motor vehicle stopped at that address, lean into the car and then stand up. The police believed that they were observing narcotic transactions on those occasions. The vehicle would leave the scene, and the defendant would go around the side of the house out of sight of the police for a short period of time and then return to the front porch. On the basis of his training and experience, Bardelli believed that the defendant was hiding his narcotics on the side of the building.

In addition, Bardelli assumed, on the basis of his experience, that when the defendant went around the side of the building, he was replenishing his supply of narcotics. James Morin, an expert witness who had made approximately 400 drug related arrests, testified that street level drug dealers, cautious of apprehension or theft and often feeling that “possession is nine tenths of the law,” tend to take precautions and do not keep drugs on their person. Rather, they choose to keep the drugs in a stash location, accessible and close to their operations, where they can maintain control over the narcotics.

Moreover, when the police presence became evident, only two of the individuals outside 33 Summer Street fled, the defendant and Foy. They fled upstairs into Lewis’ apartment. When the police knocked on the door of that apartment, the defendant and Foy were the only ones who left by the back door. Such conduct, when unexplained, as in the present case, tends to prove a consciousness of guilt. State v. Ferrara, 176 Conn. 508, 516, 408 A.2d 265 (1979); State v. Reddick, 36 Conn. App. 774, 787, 654 A.2d 761, cert. denied, 232 Conn. 922, 656 A.2d 671 (1995). Furthermore, the efforts of the defendant to conceal himself from the police among the trash bags in the back foyer of the second floor could be found to be evasive action, which would support an inference of consciousness of guilt. See State v. Williams, 27 Conn. App. 654, 663, 610 A.2d 672 (1992), cert. denied, 223 Conn. 914, 614 A.2d 829 (1992). “When considered together with all the facts of the case, flight may justify an inference of the accused’s guilt. State v. Rosa, 170 Conn. 417, 433, 365 A.2d 1135, cert. denied, 429 U.S. 845, 97 S. Ct. 126, 50 L. Ed. 2d 116 (1976).” State v. Reddick, supra, 787. “Suspicious action on the paid of a defendant can also bolster a constructive possession theory.” McNulty v. State, 655 A.2d 1214, 1218 (Del. 1995).

It is true, however, that there is no evidence that the police actually saw the defendant under the stairs on the side of 33 Summer Street where Officers Baskett and Song found the thirteen bags of crack cocaine. The jury had, together with all the other evidence, a photograph of the stairs under which the cocaine was found. That could assist the jury in understanding that the defendant’s trips to the side of the building provided ready access to his supply of drugs. Moreover, unlike State v. Brunori, supra, 22 Conn. App. 431, a case stressed by the defendant, these narcotics were not found in a public area. In Brunori, the narcotics were found in a public area within a public housing project in Bridgeport where the defendant allegedly had gone to purchase drugs. We conclude that the jury could have reasonably found that the location of the cocaine under the stairs along the side of the building was not a public place as was the location in Brunori. Black’s Law Dictionary (6th Ed. 1990) defines public place as “[a] place to which the general public has a right to resort; not necessarily a place devoted solely to the uses of the public, but a place which in point of fact is public rather than private . . . .” The trier of fact could have, under all of the circumstances, reasonably found that the cocaine was concealed, not in a publicly accessible area as were the drugs in State v. Thompson, 20 Conn. App. 290, 293, 567 A.2d 837 (1989), but in an area privately accessible to the defendant, secreted there in furtherance of his dominion and control.

Additionally, evidence found on the defendant’s person at the time of his arrest further supports the trier’s inference of constructive possession. At that time, the police found $479 in his possession. The defendant, when asked, could not say how much money he had. Moreover, he was unemployed at that time. As to the beeper taken from the defendant, Bardelli testified that, on the basis of his training and experience, “many individuals who sell narcotics use beepers to have people contact them in order to obtain the narcotic.”

There is also expert testimony that possession of the amount of cocaine seized here was more consistent with an intent to sell than possession for personal use. “Possession of narcotics in quantities ordinarily not associated with personal use is a factor on which a jury reasonably may rely to infer intent to sell. State v. DeWitt, 28 Conn. App. 638, 640-42, 611 A.2d 926, cert. denied, 224 Conn. 903, 615 A.2d 1045 (1992); State v. Napoleon, 12 Conn. App. 274, 283-85, 530 A.2d 634, cert. denied, 205 Conn. 809, 532 A.2d 78 (1987).” State v. Conley, 31 Conn. App. 548, 560, 627 A.2d 436, cert. denied, 227 Conn. 907, 632 A.2d 696 (1993), see also State v. Smith, 46 Conn. App. 321, 326, 699 A.2d 262 (1997). The jury could have accepted the expert opinion on the quantity of cocaine as evidence of intent to sell. Even if it did not, the jury still could have reasonably inferred the necessary intent to sell, given all of the circumstances disclosed by the evidence.

The evidence was sufficient to infer the defendant’s constructive possession of the cocaine and the jury reasonably could have concluded on the facts established and the reasonable inferences drawn therefrom that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the defendant raised and briefed two other issues, he expressly withdrew those issues during oral argument before this court. The two issues expressly abandoned were (1) whether, when the police threw away a paper bag that contained a plastic bag with thirteen plastic packets of crack cocaine, the defendant’s right to due process under the fourteenth amendment to the United States constitution was violated and (2) whether the trial judge improperly refused to admit certain hearsay testimony, which was an admission against interest, and, accordingly, admissible under that exception to the hearsay rule.

       The trial court denied the defendant’s motion for a judgment of acquittal made at the completion of the state’s case. The defendant went on to present his evidence but did not make a motion for judgment of acquittal at the end of all of the evidence. The state argues, invoking the waiver rule, that the defendant has waived his right to appellate review as to his sufficiency claim because, although he made a motion for judgment of acquittal at the end of the state’s case, he did not make such a motion at the end of all of the evidence. The state cites State v. Glenn, 30 Conn. App. 783, 790, 622 A.2d 1024 (1993), for this proposition. We do not agree with the state’s claim.
      The waiver rule, set out in State v. Rutan, 194 Conn. 438, 440-45, 479 A.2d 1209 (1984), has often been criticized by our Supreme Court. See, e.g., State v. Simino, 200 Conn. 113, 118 n.5, 509 A.2d 1039 (1986); State v. Lizzi, 199 Conn. 462, 464-65, 508 A.2d 16 (1986); State v. Duhan, 194 Conn. 347, 352, 481 A.2d 48 (1984). State v. Roy, 233 Conn. 211, 212-13, 658 A.2d 566 (1995), requires that we review the evidence in toto when there is a claim that the evidence is insufficient to sustain the conviction; we are not limited to the evidence in the state’s case-in-chief. See also State v. Garrett, 42 Conn. App. 507, 514 n.6, 681 A.2d 362, cert. denied, 239 Conn. 928, 929, 683 A.2d 398 (1996). In Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), the United States Supreme Court held that it is a violation of the fourteenth amendment to the United States constitution for any person to suffer a criminal conviction except on sufficient proof of every element of the crime charged beyond a reasonable doubt. That is the circumstance involved in this case. We believe, therefore, that the defendant’s sufficiency claims should be reviewed on all of the evidence adduced at his trial.

       General Statutes § 2 la-278 (b) provides in relevant part: “Any person who . . . possesses with the intent to sell or dispense ... to another person any narcotic substance . . . except as authorized in this chapter, and who is not at the time of such action a drug-dependent person . . . shall be imprisoned ....

       Bardelli had been a state trooper for twelve and one-half years, and Dautrich had been a municipal police officer for about four years.

       There were two residential apartments in this building. The first floor apartment was 35 Summer Street and the second floor apartment was 33 Summer Street. There was only one front entrance to both apartments from Summer Street. For purposes of convenience, we shall refer to this building as 33 Summer Street.

       Officers Song and Baskett were assigned to the safe neighborhood patrol in New London, which specifically targeted areas that had a higher crime rate than the rest of the city, and focused on areas of drug activity and violence. Summer Street was one of the targeted areas.

       Alley lights are located on each side of the light bar, which is affixed to the top of a police cruiser.

       McMurray and Cook were drinking at that time and held open containers of alcohol. Song knew both of these men as drug users and not as drug sellers.

       Annie Branch, who lived in the first floor apartment, testified that on the night of December 6, 1995, police knocked on her door and asked if “anybody [had] come to [her] house” and she said that no one had. She said she knew that the police went upstairs because she heard their footsteps. Joey Lewis was the tenant of the second floor apartment.

       Song had been in front where he had detained McMurray and Cook, patted them down for weapons and narcotics, took their information, checked them for warrants and, upon clearing them, released both men. Later, Song heard someone say on the radio that “they were trying to get out the back.” Thereupon, Song ran around to the side of the building and covered a side door.

       Upon questioning people in the apartment, the police learned that Lewis was at Foxwoods Casino. The police asked the Foxwoods state police unit 1o locate Lewis and to have her contact them. Lewis did contact the police, who told her there was an emergency and asked her to come to 33 Summer Street. She did so, arriving between 9:30 and 9:45 p.m. The police asked for her permission to search the entire apartment and she consented. On searching the apartment, the police found a large amount of money, cell phones, beepers and bullets.

       Several other New London police officers had arrived to assist the police officers already on the scene.

       The presumptive presence of cocaine is why the police send contraband to the state toxicology laboratory for further testing.

       Foy was not arrested by Bardelli because he was not sure that he was the second individual selling narcotics. According to Bardelli, the defendant “was the only one that I could actually say I identified him, what he looked like, his facial features.”

       There were also other photographs of 33 Summer Street in evidence.

       The denominations constituting the $479 taken from the defendant by the police were: eighteen $20 bills, eight $10 bills, seven $5 bills and four $1 bills. In view of the expert testimony of the street price of rock cocaine in New London of $20 and $35, the denominations making up the $479 seized from the defendant could reasonably be considered by the jury.
      In a possession with intent to sell cocaine case, it was noted that “[v]ery indicative is the large miscellany of money carried in specie by the defendant, who was otherwise confessedly without any resources and unemployed to boot.” Commonwealth v. Sendele, 18 Mass. App. 755, 758-59, 470 N.E.2d 811 (1984).