author: Foti, J.

text:
    State of Connecticut v. Steven T. Washburn
    (12297)
    Foti, Lavery and Landau, Js.

      Argued February 15
    decision released May 31, 1994

      David S. Grossman, for the appellant (defendant).

      Jacqueline J. Footman, assistant state’s attorney, with whom were Susan Marcu Naide, assistant state’s attorney, and, on the brief, Franks. Maco, state’s attorney, and James Fletcher, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, following the denial of his motion to dismiss and entry of a nolo contendere plea, of the crime of operating a motor vehicle while his operator’s license was under suspension, pursuant to General Statutes § 14-227b, in violation of General Statutes § 14-215 (c).

The defendant argues that the judgment of conviction should be reversed and the case remanded with direction to grant his motion to dismiss because (1) General Statutes § 14-215 (c), as applied, is a bill of attainder in violation of both the state and federal constitutions, (2) § 14-215 (c) violates the due process clauses of both the state and federal constitutions, (3) the enhanced penalty provisions of § 14-215 (c) violate the equal protection clauses of both the state and federal constitutions, (4) imposition of a jail term of not less than thirty days constitutes “unusual” punishment in violation of both the state and federal constitutions, and (5) the information was defective. We affirm the judgment of the trial court.

The defendant was arrested early in the morning on January 17, 1992, for operating a motor vehicle while under the influence of intoxicating liquor pursuant to General Statutes § 14-227a. In accordance with General Statutes § 14-227b (c) his driver’s license was revoked for a twenty-four hour period, and he was given a temporary license that became effective upon the expiration of the twenty-four hour suspension. He was released from custody, and, later that same day, prior to the expiration of the twenty-four hour suspension, he was stopped in his vehicle by a police officer for an unrelated offense. No ticket was issued at that time and he was allowed to continue driving. Subsequently, the New Milford police department discovered that the twenty-four hour suspension period had not expired at the time of the stop. A warrant for his arrest was issued on March 3, 1992.

By information dated and filed May 8, 1992, it was alleged that “on or about the 17th day of January 1992 . . . Steven T. Washburn at approximately 5:30 p.m. did operate a motor vehicle on a public highway to wit: Route 7, while his operator’s license or right to operate a motor vehicle in this State was suspended and revoked pursuant to General Statutes § 14-227b, all in violation of Connecticut General Statutes § 14-215 (c).” On the same day, the state’s attorney filed the “second part of information” indicating that the defendant was “subject to enhanced penalty pursuant to General Statutes § 14-215 (c).” The defendant filed a motion to dismiss the charges, along with a memorandum in support of that motion.

On appeal after a conditional plea of nolo contendere, the only issue to be considered is whether it was proper for the trial court to have denied the motion to dismiss. General Statutes § 54-94a; Practice Book § 4003. The defendant’s motion to dismiss was limited to two claims: (1) that the statute in question is a bill of attainder in violation of article one, § 10, of the United States constitution, and (2) that the provision that provides for the suspension of a driver’s license for a twenty-four hour period violates procedural due process as required by the fourteenth amendment to the United States constitution. The state’s memorandum in opposition and the trial court’s memorandum of decision denying the defendant’s motion addressed only the issues as raised by the defendant’s motion to dismiss.

I

The defendant argues that the application of General Statutes § 14-215 (c) to the twenty-four hour suspension provision of General Statutes § 14-227b constitutes a bill of attainder. He claims that when the punishment was imposed he had not been tried or convicted on the underlying charge of operating a motor vehicle while under the influence of intoxicating liquor. The defendant asserts that the class of persons affected is that clearly identifiable group of persons “stupid enough to drive within twenty-four hours following a prior arrest.”

Bills of attainder are prohibited by article one, § 9, clause 3, and § 10, of the United States constitution. A bill of attainder has been described as “ ‘a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.’ ” Selective Service Systems v. Minnesota Public Interest Research Group, 468 U.S. 841, 846-47, 104 S. Ct. 3348, 82 L. Ed. 2d 632 (1984). In order to constitute a bill of attainder, therefore, a law must do two things: (1) single out an individual or group for unfavorable treatment, and (2) impose punishment without judicial trial. United States v. Lovett, 328 U.S. 303, 315, 66 S. Ct. 1073, 90 L. Ed. 1252 (1946).

We cannot conclude that the twenty-four hour suspension following an individual’s arrest for operating while under the influence of intoxicating liquor meets the criteria set forth previously. General Statutes § 14-227b, Connecticut’s “implied consent” statute applies to all drivers who operate motor vehicles in the state, and neither identifies nor implicates, by isolation, a smaller identifiable group within the general group of licensed drivers.

Simply because a law places burdens on citizens does not make those burdens punishment. Selective Service Systems v. Minnesota Public Interest Research Group, supra, 468 U.S. 851. In deciding whether a legislative act inflicts forbidden punishment, we must first determine (1) whether the statute imposes a punishment that falls within the historical meaning of legislative punishment, (2) whether, looking at the type and severity of burdens the statute imposes, it can be said to further nonpunitive legislative purposes, and (3) whether the legislative record clearly shows an intent to punish. Id., 852. In addition, it also has been considered useful to inquire whether less burdensome alternatives exist through which the legislature’s legitimate objectives might have been achieved. Nixon v. Administrator of General Services, 433 U.S. 425, 482, 97 S. Ct. 2777, 53 L. Ed. 2d 867 (1977).

General Statutes § 14-227b does not impose a punishment in the historical sense, it can reasonably be said to further nonpunitive legislative purposes, and the legislative record does not evince an intent to punish. License revocation, pursuant to § 14-227b, is administrative rather than criminal in nature. Marshall v. DelPonte, 27 Conn. App. 346, 351, 606 A.2d 716 (1992). The postarrest suspension is not punitive in its purpose or application. The purpose of such a twenty-four hour postarrest suspension is to protect the public from those who operate motor vehicles while under the influence of drugs or alcohol. The motivation of the legislature is clearly focused on public safety.

Section 14-215 (c) specifically refers to persons who have had their licenses suspended or revoked pursuant to §§ 14-227a (a), 14-227b, 53a-56b or 53a-60d, but does not impose punishment for past conduct. The penalties under General Statutes § 14-215 (c) can be avoided by refraining from operating a motor vehicle for the required twenty-four hour period. We conclude, therefore, that the defendant is not a member of any discrete class that the legislature seeks to punish, nor has he been subjected to legislative punishment for conduct without the benefit of judicial trial. The trial court properly concluded that § 14-215 (c), applied together with § 14-227b (c), is not a bill of attainder.

II

The defendant next claims that application of the thirty day minimum mandatory jail term to the summary twenty-four hour suspension provisions of General Statutes § 14-227b (c) violates both state and federal constitutional due process rights.

While a driver’s license, as a property interest, may not be suspended or revoked without due process of law; Bell v. Burson, 402 U.S. 535, 542-43, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971); a presuspension hearing may not always be required. Dixon v. Love 431 U.S. 105, 97 S. Ct. 1723, 52 L. Ed. 2d 172 (1977). To determine the level of procedural due process necessary or whether a prior evidentiary hearing may be required we must examine three factors: (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedure used and the probable value, if any, of additional substitute procedural safeguards, and (3) the state’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).

Applying the Eldridge criteria to the present case, we conclude that the interest affected, i.e., the right to operate a motor vehicle, is not significantly infringed by a prohibition of twenty-four hours following an arrest for operating while under the influence of intoxicating liquor. It is a brief period and not an unreasonable restriction on the use and enjoyment of the driver’s license; it is a regulation that is within reasonable limits.

The risk of an erroneous deprivation is rather low considering the other safeguards that exist. Ample safeguards have been enacted to ensure that a reasonably reliable basis exists and that the police action is responsible and warranted. General Statutes § 14-227b (c) requires that the person first be arrested and submit to and fail or refuse to submit to a blood alcohol test. The statute further directs the police officer to prepare and swear to a report detailing the probable cause for arrest. While this report is not reviewable in relation to the twenty-four hour administrative suspension, there is ample chance for review prior to any further consequences to the arrested individual. At the termination of the twenty-four hour suspension period, a thirty-five day temporary license issues immediately permitting that operator to resume driving his or her vehicle. He or she must have an opportunity for a hearing prior to the termination of the temporary license and prior to any further suspension of his or her license. General Statutes § 14-227b (d).

Finally, the state’s interest in promoting public safety must, in the circumstances of this matter, outweigh the defendant’s claimed right to a hearing prior to the twenty-four hour suspension of his operator’s license. “Connecticut’s statutory scheme [reflects] an unambiguous policy aimed at ensuring that our highways are safe from the carnage associated with drunken drivers.” State v. Stevens, 224 Conn. 730, 739, 620 A.2d 789 (1993). Public policy, in addition to the legislative regulation, dictates that public safety must take priority over an individual’s right to a presuspension hearing under the circumstances.

We, therefore, conclude that General Statutes § 14-227b (c) does not violate federal due process by its application of a twenty-four hour suspension, but rather, is a valid enactment by the state in the exercise of its police power.

Ill

The defendant also claims that he was subjected to an enhanced penalty pursuant to General Statutes § 14-215 (c) in violation of the equal protection clause of the state and federal constitutions.

This issue was not raised by the defendant’s motion to dismiss. We are not bound to consider a claim that was not distinctly raised at trial. Practice Book § 4185. “This rule applies to constitutional claims. Only under the most exceptional circumstances can and will [we] consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.” Berry v. Loiseau, 223 Conn. 786, 828, 614 A.2d 414 (1992). No exceptional circumstances have been asserted and, accordingly, we decline to review this claim.

IV

By way of a supplemental brief, the defendant raises for the first time two additional issues. He alleges that the imposition of a thirty day sentence constitutes unusual punishment in violation of the eighth amendment to the federal constitution and article first, § 8, of the state constitution, and that the information was defective in that it employed the term “privilege” rather than the proper term “right.” For the reasons discussed in part III, we decline to review these claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plea of nolo contendere was entered conditional on the right to appeal pursuant to General Statutes § 54-94a and Practice Book § 4003.

       General Statutes § 14-215 (c) provides: “Any person who operates any motor vehicle during the period his operator’s license or right to operate a motor vehicle in this state is under suspension or revocation on account of a violation of subsection (a) of section 14-227a or section 53a-56b or 53a-60d or pursuant to section 14-227b, shall be fined not less than five hundred dollars nor more than one thousand dollars and imprisoned not more than one year, thirty consecutive days of which may not be suspended or reduced in any manner.”

       The defendant received a sentence of six months, the execution of which was suspended after the mandatory minimum of thirty days was served, followed by a probationary period of two years with special conditions. In addition, a fine of $750 plus costs was imposed.

       According to the defendant, the charge of operating while under the influence of liquor or drug was eventually dismissed due to the defendant’s participation in the alcohol education program.

       We note that the motion to dismiss has not been included as part of the court file. The defendant’s memorandum in support of his motion to dismiss was filed on July 17,1992. The state filed a memorandum in opposition on August 7, 1992.

       The plea of nolo contendere, however, does not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution. General Statutes § 54-94a; Practice Book § 4003.

       After finding in its memorandum of decision that the defendant was arrested on January 17,1992, on or about 1:38 a.m. for operating a motor vehicle while under the influence of intoxicating liquor pursuant to General Statutes § 14-227a, the trial court stated the following: “Upon failing to perform a series of standardized field sobriety tests to standard, the defendant was arrested and transported to the New Milford police department, where the results of two Intoximeter tests revealed a descending blood alcohol content of 0.124 and 0.114 of a percent.”
      The defendant argues, and we agree, that this “finding” is surplusage, and neither warranted nor needed for the determination of his motion to dismiss. No motion for rectification was filed.

       General Statutes § 14-227b provides in pertinent part: “(a) Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, breath or urine ....
      “(c) If the person arrested . . . submits to such [blood alcohol] test or analysis and the results of such test or analysis indicates that at the time of the alleged offense the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight, the police officer, acting on behalf of the commissioner of motor vehicles, shall immediately revoke and take possession of the motor vehicle operator’s license . . . for a twenty-four-hour period and shall issue a temporary operator’s license ... to such person valid for the period commencing twenty-four hours after issuance and ending thirty-five days after the date such person received notice of his arrest by the police officer. The police officer shall prepare a written report of the incident and shall mail the report together with a copy of the completed temporary license form, any operator’s license taken into possession and a copy of the results of any chemical test or analysis to the department of motor vehicles .... The report shall be .. .

        sworn to under penalty of'false statement .... The report shall set forth the grounds for the officer’s belief that there was probable cause to arrest such person . . . and shall state . . . that such person submitted to such test or analysis and the results of such test or analysis indicated that at the time of the alleged offense the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight.” (Emphasis added.)

       The defendant also argues that the application of General Statutes §§ 14-215 (c) to 14-227b constitutes a bill of attainder prohibited by article first, § 13, of the Connecticut constitution. Because the defendant has not provided an independent analysis to support his state constitutional claim, nor raised the state claim before the trial court, we will not review it. See State v. Hernandez, 204 Conn. 377, 394 n.9, 528 A.2d 794 (1987); State v. Andrews, 33 Conn. App. 590, 592 n.3, 637 A.2d 787, cert. denied, 229 Conn. 908, 640 A.2d 121 (1994).

       Traditionally, a bill of attainder imposed a death penalty; penalties less than death were imposed, typically, by a “bill of pains and penalties.” The three principal incidents of attainder were forfeiture of property, corruption of blood, and civil death. 21 Am. Jur. 2d, Criminal Law § 1022 (1981).

       The trial court’s thorough analysis focused on the second criteria— whether the law imposes a punishment “traditionally judged to be prohibited.” Nixon v. Administrator of General Services, supra, 433 U.S. 475. The court also reviewed the functional test, the legislative motive and the less burdensome alternatives tests as set forth in Nixon, while recognizing that the historical test was inapplicable to the present case.

       The legislative scheme establishes two separate and distinct proceedings. The administrative suspension of an operator’s license is under the jurisdiction of the department of motor vehicles and the prosecution of the underlying offense of driving while intoxicated falls within the jurisdiction of the criminal justice system.

       The legislative history of § 14-227b reveals that when the legislature passed that section, it also amended § 14-215 to include the words “or pursuant to section 14-227b,” replacing the reference to only specific sections of § 14-227b.

       See footnote 9.

       The twenty-four hour suspension cannot be reversed even if improper. The intrusion is minor and the safeguard of a sworn statement sufficient to justify the intrusion.

       The issues at the presuspension hearing are limited to (1) whether there was probable cause for arrest, (2) whether such person was placed under arrest, (3) whether such person refused to submit to a blood alcohol test or submitted with results of ten-hundredths of one percent or more of blood alcohol by weight at the time of the alleged offense, and (4) whether such person was operating a motor vehicle. General Statutes § 14-227b (f).

       We are also unpersuaded by the defendant’s reference at oral argument to United States v. La Guardia, 902 F.2d 1010, 1013 (1st Cir. 1990).


source: Caselaw Access Project

author: Schaller, J.

license: Public Domain

text:
    John S. Baerst v. State Board of Education et al.
    (12224)
    O’Connell, La very and Schaller, Js.

      Argued January 13
    decision released May 31, 1994

      David P. Burke, for the appellant (plaintiff).

      Carroll T. Willis, Jr., assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Bernard F. McGovern, Jr., assistant attorney general, for the appellee (named defendant).

      Frank W. Murphy, with whom, on the brief, was Barbara L. Coughlan, for the appellee (defendant New Canaan board of education).
   Schaller, J.

The principal issue raised by this appeal is whether residency for purposes of entitlement to public school attendance by a child whose home sits astride a boundary line between two municipalities should be determined solely by considering the physical location of the dwelling or by taking into account the full constellation of interests related to the communities involved.

The plaintiff appeals from the judgment of the trial court, in an administrative appeal, sustaining the decision of the defendant state board of education. The board had denied the plaintiffs daughter, Virginia, the right to attend public schools in New Canaan because Virginia was not a resident of that town but was, instead, a resident of the city of Norwalk. We reverse the judgment of the trial court.

The procedural history of this case may be summarized as follows: In January, 1989, the plaintiff requested that the New Canaan school superintendent grant school accommodations for Virginia. This request was denied on the ground that a majority of the plaintiff’s property taxes were not paid in New Canaan. The plaintiff’s request for a hearing before the New Canaan board of education pursuant to General Statutes § 10-186 (b) was granted. At the hearing held in April, 1989, the board upheld the superintendent’s decision. The plaintiff further appealed the decision to the state board of education, which appointed a hearing board. In July, 1989, after the hearing board sustained New Canaan’s decision, the plaintiff brought an appeal to the Superior Court. In May, 1991, the trial court concluded that the decision had been reached on procedural error and remanded the matter for rehearing. The rehearing was held in November, 1991. The second hearing board determined that Virginia was not entitled to attend school in New Canaan. In that decision, the hearing board concluded that the dispositive factor in the determination is the location of the habitable portion of the house. The plaintiff thereafter appealed that decision of the hearing board pursuant to General Statutes §§ 10-187 and 4-183, naming the New Canaan, Norwalk, and state boards of education as defendants. The trial court upheld the hearing board’s decision, concluding that geography played the dominant role in the interpretation of title 10 statutes. This appeal has been brought under General Statutes § 51-197b.

The facts are undisputed. In 1985, the Baerst family moved from a house located wholly within New Canaan to their present home, located at 446 Brookside Drive, which is situated on a 2.32 acre parcel of land, two acres of which are in Norwalk and the remainder in New Canaan. The front door opens onto steps that are divided by the town line, and the side door is located in New Canaan. The road frontage is divided between Norwalk (179 feet) and New Canaan (220 feet). A majority of the real property taxes is paid to Norwalk for land and house, whereas only 5 percent for land only is paid to New Canaan. The family uses a New Canaan mailing address, to which the New Canaan post office delivers mail. In addition, the Baersts have used numerous New Canaan services such as emergency ambulance services, snow removal, and police services. The hearing board found the family members’ social and community activities to be “overwhelmingly focused” on New Canaan organizations. The board further found that their daily lives are focused in the New Canaan community. A New Canaan address is listed on their auto registration and driver’s licenses; also, they pay personal property taxes on automobiles to New Canaan, and are registered to vote, and have repeatedly done so, in New Canaan. They have residents’ library cards from the New Canaan Public Library and participate in library activities. The Baerst children play predominantly with New Canaan residents.

We note, at the outset, that the standard of review of administrative agency decisions is well established. “ ‘[JJudicial review of administrative conclusions of law is limited to a determination of whether, in light of the evidence, those conclusions are unreasonable, arbitrary, illegal or an abuse of discretion.’ ” Foti v. Richardson, 30 Conn. App. 463, 466, 620 A.2d 840 (1993), citing Fleischman v. Board of Examiners in Podiatry, 22 Conn. App. 181, 184, 576 A.2d 1302 (1990). A broader standard of review, however, is warranted where, as in the present circumstances, we are presented with an issue of first impression involving the applicability of General Statutes § 10-220 (a). In such instances, “it is the function of the courts to expound and apply governing principles of law.” Foti v. Richardson, supra, 466, citing National Labor Relations Board v. Brown, 380 U.S. 278, 291, 85 S. Ct. 980, 13 L. Ed. 2d 839 (1965). Further, “[o]ur review must comport with the well settled principles of statutory construction.” Foti v. Richardson, supra, 466. “To determine the collectively expressed legislative intent, we look first to the language of the statute itself. If that language is plain and unambiguous, we go no further. . . .” Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991).

It is well established under Connecticut law that, with several specific exceptions, residence is the critical factor determining where a child attends school. General Statutes § 10-184 mandates that a parent or other person having control of the child arrange for attendance at the “public school in the district wherein such child resides . . . .” Section 10-186 places a duty on local and regional boards of education to provide school accommodations to eligible children residing in the school district.

The critical provision of General Statutes § 10-220 (a) at issue in this case provides: “Each local . . . board of education shall . . . make such provisions as will enable each child of school age, residing in the district to attend some public day school for the period required bylaw . . . .” (Emphasis added.) Construction of this provision turns on the meaning of the term “residing,” which is not explicitly defined in title 10.

In determining that the Baerst family resided in Nor-walk, rather than in New Canaan, the hearing board conducted a de novo hearing pursuant to § 10-186. The hearing board concluded essentially that Virginia Baerst did not reside in New Canaan for purposes of school accommodation because a majority of the house in which she lives is located in a municipality other than New Canaan. Thus, the actual physical location of the property was the governing factor for the board. In support of this determination, the board cited a series of out-of-state decisions supporting the so-called “majority approach” to the subject.

Although noting the absence of any Connecticut cases resolving the issue, the board did take note of several Connecticut cases addressing residency in somewhat different contexts. The board relied principally on Don v. Don, 142 Conn. 309, 311, 114 A.2d 203 (1955), in which our Supreme Court reasoned that “[a] resident of a place is one who is an actual stated dweller in that place,” in reaching its conclusion that the plaintiff was a resident of Hartford County for the purpose of legally changing her name. The Supreme Court in Don relied on its decision in Yale v. West Middle School District, 59 Conn. 489, 491, 22 A. 295 (1890), in which the residence of a child living with her aunt, rather than her parents, for purpose of school accommodations, was at issue. Therein, the court determined that “[d]omicil ... is the actual or constructive presence of a person in a given place, coupled with the intention to remain there permanently; and as a minor cannot exercise an independent intent in this manner, a minor can have no domicil other than that of the parent or guardian. But the facts do show that she had a residence there in the ordinary and popular meaning of the word.”

The board relied further on the 1 Restatement (Second), Conflict of Laws § 18, comment (h) (1971), which notes in part that where a dwelling is cut by a boundary line, “[u]sually, the domicil will be in that political division where the major portion of the dwelling place is located, particularly if only an uninhabitable part lies in the other.” (Emphasis added.)

In upholding the hearing board’s decision, the trial court, endorsed the hearing board’s reasoning and also determined that the decision comported with the “general statutory scheme for allocating responsibility for education under Connecticut law. That scheme is based on geography, not affinities.” The court rejected the plaintiff’s claims based on intent in reliance on General Statutes § 10-253 (d), the best interest of the child, and constitutional entitlement to suitable education based on Horton v. Meskill, 172 Conn. 615, 627, 376 A.2d 359 (1977).

In support of his position, the plaintiff presses the following arguments: (1) the principal out-of-state cases support a fact based approach that takes into account the particular circumstances of each case rather than the “bright line” test adopted by the hearing board; (2) 1 Restatement (Second), supra, comment (h), specifically endorses an approach based on the “center of . . . interests and activities” in rare boundary line cases similar to the present case; (3) the Connecticut cases addressing residence in the context of school attendance strongly suggest applying the term “residence” in the “ordinary and popular meaning of the word.” See New Haven v. Torrington, 132 Conn. 194, 43 A.2d 455 (1945); Yale v. West Middle School District, supra, 59 Conn. 491. We find persuasive the plaintiff’s arguments challenging the rigidity and arbitrariness of a bright line rule based solely on the physical location of the residence.

We note that the introduction to the Restatement (Second), Conflict of Laws, indicates that the compilation is intended to “tak[e] full account of the enormous change in dominant judicial thought respecting conflicts problems that has taken place in relatively recent years. The essence of that change has been the jettisoning of a multiplicity of rigid rules in favor of standards of greater flexibility, according sensitivity in judgment to important values that were formerly ignored.” 1 Restatement (Second), supra, p. vii (1971).

We conclude that an approach based on the whole constellation of interests including both geography and the community orientation of the plaintiff and his family is congruent with the Connecticut statutory scheme pertaining to education and consistent with relevant Connecticut case law. A fact based “constellation of interests” approach, which takes into account not only the physical property, but the other factors associated with the plaintiff and his family, finds persuasive support, not only in 1 Restatement (Second), supra, comment (h), but also in many well reasoned cases. See Board of Education of Golf School District No. 67 v. Regional Board of School Trustees, 89 Ill. 2d 392, 433 N.E.2d 240 (1982); Dresner v. Regional Board of School Trustees of Kane County, 150 Ill. App. 3d 765, 501 N.E.2d 983 (1986); Granfield v. Regional Board of School Trustees of Bureau County, 108 Ill. App. 3d 703, 439 N.E.2d 497 (1982); Fowler v. Clayton School District, 528 S.W.2d 955, 958 (Mo. App. 1975).

Furthermore, common sense dictates that this approach be followed. The term “residence” is not defined by the relevant statutory scheme. When a term in a statute is undefined, “it is appropriate to consult the common understandings expressed in the law and in dictionaries.” Young v. Marx, 24 Conn. App. 81, 84, 585 A.2d 1253 (1991). Connecticut case law directs us to the ordinary meaning of this term, which has been broadly construed. “[Ljegal residence for school purposes does not necessarily mean domicil, but rather a residence in the ordinary and popular meaning of the word . . . the state is interested in having all of its children educated and has framed its school laws accordingly.” New Haven v. Torrington, supra, 132 Conn. 200; Yale v. West Middle School District, supra, 59 Conn. 491.

We note that this case arises in a singular factual context. While many of the cases cited by the board as comprising the “majority approach” determine the physical location of the house to be dispositive, we decline to give these decisions like force where the physical location of the house and lot do not accurately and fully reflect the interests and orientation of the Baerst family. The right of public education benefits people, not property. By far, the important constellation of interests of the Baerst family is with New Canaan. The state board of education has promulgated residency guidelines to determine residency for purposes of public school attendance. These guidelines support an approach that takes into account multiple factors. These factors include the various recreational “affiliations” that a student may have, such as membership in scouts, as well as the town issuance of a library card and the address listed on a motor vehicle operator’s license. See September 1988 Residency Guidelines. No statute or case mandates that the geographical factor solely be dispositive.

In determining this issue of first impression, we adopt the position that, under these specific circumstances, the child’s right to public education should be viewed in the context of the community with which the family is associated. Proper guidance may be found in a line of cases in which families have sought detachment of their property from one school district because the “natural community of interests” of their children is in the adjoining district. See Dresner v. Regional Board of School Trustees of Kane County, supra, 150 Ill. App. 3d 765. In Dresner, the court relied on the 1982 decision in Board of Education of Golf School District No. 67 v. Regional Board of School Trustees, supra, 89 Ill. 2d 392, in which the “whole child concept” was announced. “The [whole child concept] recognizes that extracurricular participation in social, religious and even commercial activities is important in a child’s development as a beneficial supplement to the child’s academic involvement. ... If a child attends school in his natural community it enhances not only his educational opportunity but encourages his participation in social and other extracurricular activities . . . .’’Id., 397-98. Later that same year, the Illinois Appellate Court granted a petition for annexation on a finding that “[t]he record clearly shows that all social, recreation, and business associations for the children and parents [lie in the district sought].” Granfield v. Regional Board of School Trustees of Bureau County, supra, 108 Ill. App. 3d 706.

In a case factually similar to this case, the Missouri Court of Appeals properly emphasized a broad range of factors in determining residence for purposes of school attendance. In that case, in which the plaintiff’s house was on the border between two Missouri counties, the court followed the instruction of 1 Restatement (Second), supra, comment (h), which determines residence to be in that district in which the “bulk of [the family’s] interests” lie. In applying that test, the Missouri Court of Appeals looked to “activity” and “interest” factors such as church attendance, banking, voting, mailing address, business and employment and “their social and recreational activities.” Fowler v. Clayton School District, supra, 528 S.W.2d 958.

The judgment is reversed and the case is remanded with direction to render judgment for the plaintiff.

In this opinion the other judges concurred.

       General Statutes § 10-186 (b) (1) provides in pertinent part: “Ii any board of education denies such [school] accommodations, the parent ... of any child who is denied schooling . . . may, in writing, request a hearing by the board of education. . . . The party claiming ineligibility for school accommodations shall have the burden of proving such ineligibility by a preponderance of the evidence, except in cases of denial of schooling based on residency, the party denied schooling shall have the burden of proving residency by a preponderance of the evidence.”

       General Statutes § 51-197b provides in pertinent part: “(a) Except as provided in section 31-301b, all appeals that may be taken from administrative decisions of officers, boards, commissions or agencies of the state or any political subdivision thereof shall be taken to the superior court.
      “(b) Except as provided in section 4-183, the superior court, after a hearing, may reverse or affirm, wholly or partly, or may modify or revise the decision appealed from.
      “(c) So much of any special act as is inconsistent with this section is repealed.
      “(d). . . [T]here shall be a right to further review to the appellate court under such rules as the judges of the appellate court shall adopt.
      “(e) The procedure on such appeal to the appellate court shall be in accordance with the procedure provided by rule or law for the appeal of judgments rendered by the superior court unless modified by rule of the judges of the appellate court. There shall be no right to further review except to the supreme court pursuant to the provisions of section 51-197Í.”

       See General Statutes § 10-75 et seq. (governing school accommodations for physically and mentally handicapped students); General Statutes § 10-90 et seq. (governing students attending vocational schools); General Statutes § 10-66a et seq. (governing regional schools).

       For example, the board cites the case of East Montpelier v. Barre, 79 Vt. 542, 66 A. 100 (1906), where the Vermont Supreme Court sought to determine the location of a house that was divided six-sevenths in one town and one-seventh in another. In determining the legal status of the building, the court looked to the “location of that part of the structure [that is] most closely connected to the primary purposes of the dwelling.” Id., 545. In another case, the residence for the purpose of voting privileges for temporary ranchhands on a farm located on a boundary line was determined by looking to the location of the dining room and sleeping quarters. Gray v. O’Banion, 23 Cal. App. 468, 138 P. 977 (1913). A similar approach was adopted by the Appeals Court of Massachusetts in Teel v. Hamilton-Wenham Regional School District, 13 Mass. App. 345, 433 N.E .2d 907 (1982), in which school children who resided in a house bisected by the town line were found to be residents of the town in which “substantial portions” of the dwelling were located. In reciting the “majority approach,” the hearing board also relied on Blaine v. Murphy, 265 F. 324 (D. Mass. 1920), in which domicile was determined to be located where the dwelling, including the sleeping and eating quarters, was located. In addition the board cites to Turner v. Board of Education, 231 S.W.2d 27 (Ky. App. 1950), in which the Kentucky Court of Appeals determined that children whose homes were more than one-half within the city of Mayfield were to attend that city’s schools for purpose of free school accommodations.

       General Statutes § 10-253 (d) provides in relevant part: “Children residing with relatives or nonrelatives, when it is the intention of such relatives or nonrelatives and of the children or their parents or guardians that such residence is to be permanent, provided without pay and not for the sole purpose of obtaining school accommodations . . . shall be entitled to all free school privileges accorded to resident children of the school district in which they reside.” (Emphasis added.) See also Board of Education v. Dept. of Education, Superior Court, judicial district of New Haven, Docket No. 324011 (October 14,1992), in which General Statutes §§ 10-220 (a) and 10-253 (d) are read in conjunction as not requiring exemption of non-full-time residents from school accommodations (dealing with children with arguably two “residences,” under joint physical custody arrangement between their divorced parents).

       1 Restatement (Second), supra, comment (h) provides: “A person’s domicil of choice should be in the place to which he is most closely related. In the normal situation, a person’s domicil of choice is in the political division where his dwelling place is situated. When the dwelling place is situated upon a dividing line between political divisions, it may be difficult to determine in which of these divisions this domicile is. Usually, the domicile will be in that political division where the major portion of the dwelling place is located, particularly if only an uninhabitable part lies in the other. On rare occasions, however, the preponderant portion of the person’s dwelling place may be in one political division, while the bulk of his interests and activities, and also those of his family, are in the other. One such case might be that of a farmer, all of whose tillable land, barn and out-buildings are situated in one political division but the major portion of whose dwelling place is situated in another. A second case may be that of a man who votes and holds public office, attends church, sends his children to school and follows a gainful employment in the political division which contains only a lesser part of his dwelling place. In these cases, it may well be that the person is more closely related to the political division which is the center of his interests and activities than to that which contains the major part of his dwelling place. If this is the case, his domicile of choice should be in the former division. When the boundary line cuts the dwelling place in half, or nearly so, primary weight should be given to the interests and activities of the person and his family and the domicil placed in the political division where most of these interests and activities are centered.” (Emphasis added.)


author: Dupont, C. J.

text:
    John C. Kucej v. Anna Kucej, Administratrix (Estate of John Kucej), et al.
    (12167)
    Dupont, C. J., O’Connell and Spear, Js.
    Argued February 17
    decision released May 31, 1994

      Richard L. Albrecht, with whom, on the brief, was David, A. Ball, for the appellant (plaintiff).

      Thomas J. Byrne, for the appellees (defendants).
   Dupont, C. J.

The plaintiff appeals to this court from the trial court’s dismissal of his appeal from the Probate Court’s decision to appoint the defendant Anna Kucej as administratrix of the estate of the plaintiff’s father. The trial court dismissed the appeal on the ground that the court lacked subject matter jurisdiction to hear the appeal. The plaintiff claims that the trial court improperly determined that he was not aggrieved by the Probate Court’s decision. The defendants present an alternate ground for dismissing the plaintiff’s appeal, contending that the plaintiff failed to return process properly to the trial court.

The decedent, John Kucej, died intestate on January 7, 1992, in the probate district of Trumbull. The plaintiff objected to the Probate Court’s proposed appointment of the named defendant as administratrix of the decedent’s estate. The named defendant is the decedent’s surviving spouse and the mother of the plaintiff. The plaintiff claimed that the named defendant had made threats to damage his reputation in the community, and had indicated that if she were appointed administratrix, she would bring suit against the plaintiff to recover his personal assets for incorporation into the decedent’s estate. The plaintiff objected to the appointment because the named defendant had exhibited “hostility and bias” toward the plaintiff, and claimed that the Probate Court should appoint a disinterested third party. Despite the plaintiff’.s objection, however, the Probate Court appointed the named defendant as administratrix of the estate pursuant to General Statutes § 45a-303 (c).

The plaintiff appealed to the Superior Court from the Probate Court order appointing the named defendant as administratrix. The defendants moved to dismiss the appeal, and the trial court granted the motion on the ground that the plaintiff lacked standing to appeal because the plaintiff was not aggrieved as is required by General Statutes § 45a-186. The reasons for the plaintiff’s appeal to this court from the trial court’s dismissal are basically those proffered to the Probate Court for his objection to the appointment of the named defendant as administratrix.

I

The trial court does not have subject matter jurisdiction to hear an appeal from probate unless the person seeking to be heard has standing. Appeal from Probate of Bencivenga, 30 Conn. App. 334, 337, 620 A.2d 195, cert. denied, 225 Conn. 919, 625 A.2d 821 (1993). In order for an appellant to have standing to appeal from an order or decree of the Probate Court, the appellant must be “aggrieved” by the court’s decision. General Statutes § 45a-186; Erisoty’s Appeal from Probate, 216 Conn. 514, 519, 582 A.2d 760 (1990); Appeal from Probate of Bencivenga, supra, 337. “Aggrievement as a concept of standing is a practical and functional one designed to assure that only those with a genuine and legitimate interest can appeal an order of the Probate Court.” (Internal quotation marks omitted.) Erisoty’s Appeal from Probate, supra, 519; see also Merrimac Associates, Inc. v. DiSesa, 180 Conn. 511, 516, 429 A.2d 967 (1980). “The question of [aggrievement] does not involve an inquiry into the merits of the case.” Appeal from Probate of Bencivenga, supra, 337.

Aggrievement falls within two categories, classical and statutory. Buchholz’s Appeal from Probate, 9 Conn. App. 413, 415, 519 A.2d 615 (1987). Classical aggrievement exists where “there is a possibility, as distinguished from a certainty,” that a Probate Court decision has adversely affected a legally protected interest of the appellant in the estate. Erisoty’s Appeal from Probate, supra, 216 Conn. 519; Appeal from Probate of Bencivenga, supra, 30 Conn. App. 336-37; see also Buchholz’s Appeal from Probate, supra, 416. “Statutory aggrievement exists by legislative fiat which grants an appellant standing by virtue of particular legislation, rather than by judicial analysis of the particular facts of the case.” Buchholz’s Appeal from Probate, supra, 416. It merely requires a claim of injury to an interest that is protected by statute.

In this case, we conclude that the plaintiff is statutorily aggrieved. As the decedent’s issue, the plaintiff is an heir for the purposes of intestacy. General Statutes §§ 45a-437 and 45a-438. Pursuant to § 45a-303 (c), an heir of the decedent can object to the appointment of an administrator or administratrix of the decedent’s intestate estate. Therefore, the plaintiff in this case, as an heir, has a statutory right to object to the appointment of the named defendant as administratrix. In order to protect that right, the plaintiff must have the right to appeal from the probate order appointing the defendant. “A contrary conclusion would result in the finding of virtually unfettered and unreviewable discretion of the Probate Court in the making of such decisions.” Buchholz’s Appeal from Probate, supra, 9 Conn. App. 424. Thus, because the legislature created a right to object, the plaintiff has standing to appeal.

II

The defendants claim that an alternate ground exists to affirm the decision of the trial court. According to the defendants, the plaintiff failed to return process properly to the trial court.

The following facts are pertinent to the resolution of this issue. After the Probate Court appointed the named defendant as administratrix, the plaintiff moved for an appeal to be held in the Superior Court on August 18, 1992. The Probate Court issued a decree allowing the appeal. The Superior Court ordered that the appeal must comply with the rules for service of process and return of process. The plaintiff then issued process to be served on the defendant, and set a return date of August 25, 1992. Process was returned to the trial court on August 13, 1992.

A probate appeal is considered a civil action for the purposes of mesne process. Bergin v. Bergin, 3 Conn. App. 566, 568, 490 A.2d 543, cert. denied, 196 Conn. 806, 494 A.2d 903 (1985). As a result, the appellant must satisfy the requirements of General Statutes § 52-46a, which states that process in civil actions returnable to the Superior Court must be returned at least six days before the return date. Bergin v. Bergin, supra, 568. In this case, process was returned to the trial court on August 13,1992, which was at least six days before the return date of August 25,1992, set by the plaintiff. Thus, the requirements of § 52-46a were met.

The defendants contend that the Probate Court set a return date of August 18, 1992, in its decree allowing the plaintiffs appeal from probate. This is not the case. The Probate Court decree set no specific date for the return of process. Instead, the order simply stated that the plaintiff must comply with the requirements of return of process. Thus, the plaintiff was free to set the return date of August 25, 1992.

The judgment of dismissal is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       General Statutes § 45a-303 (c) provides in pertinent part: “[t]he court of probate . . . shall grant administration of the intestate decedent’s estate to any one or more persons or their designees appointed in the following order, provided such person or persons are entitled to share in the estate of the decedent: (A) The surviving spouse, (B) any child of the decedent . . . (C) any grandchild of the decedent . . . (D) the decedent’s parents, (E) any brother or sister of the decedent, (F) the next of kin entitled to share in the estate, or, on their refusal, incapacity or failure to give bond or upon the objection of any heir or creditor to such appointment found reasonable by the court, to any other person whom the court deems proper.” (Emphasis added.)

       General Statutes § 45a-186 provides in pertinent part: “Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the superior court for the judicial district in which such court of probate is held. . . .”

       The principles of classical aggrievement are not interpreted “so narrowly as to limit [their] applicability solely to cases involving an adverse effect upon a direct interest in the probate estate.” (Emphasis added.) Erisoty’s Appeal from Probate, supra, 216 Conn. 521; see also Merrimac Associates, Inc. v. DiSesa, supra, 180 Conn. 517-18. An appellant’s aggrievement may consist of the possibility of an injurious effect on a legally protected interest as well as of a direct pecuniary interest. Erisoty’s Appeal from Probate, supra, 521; see Merrimac Associates, Inc. v. DiSesa, supra, 517-18. “[A] legally protected interest may derive from the administration of a probate estate.” Erisoty’s Appeal from Probate, supra, 521.

       A civil action in most cases is commenced by mesne process. Connecticut Practice — Practice Book Annotated (W. Moller & W. Horton 3d Ed. 1992) § 49, comment; see also General Statutes § 52-45a. Process consists of a writ of summons or attachment, which describes the parties, the court to which the writ is returnable, and a return date. General Statutes § 52-45a.

       General Statutes § 52-46a provides: “Process in civil actions returnable to the supreme court shall be returned to its clerk at least twenty days before the return day and, if returnable to the superior court, except process in summary process actions, to the clerk of such court at least six days before the return day.”

       In a memorandum of decision, the Probate Court stated that nowhere in its decree did it “specifically set a return date for the appeal.”


text:
    Gerardo Mastronardi et al. v. Josephine Infante et al.
    (11870)
    DupoNt, C. J., Foti and Freedman, Js.
    Argued October 29, 1993
    decision released May 31, 1994

      Daniel Shepro, for the appellants (defendants).

      R. Richard Roina, for the appellees (plaintiffs).
   Foti, J.

The defendants appeal from the judgment rendered in favor of the plaintiffs, Gerardo Mastronardi and Angela Mastronardi. Following a trial before an attorney state trial referee; see General Statutes § 52-434 (a) (4); Practice Book § 428 et seq.; the trial court accepted the referee’s reported findings determining the boundaries of a certain easement, and rendered judgment. On appeal, the defendants claim that the trial court improperly (1) sustained the referee’s findings of fact, and (2) sustained the conclusions based on those findings. We affirm the judgment of the trial court.

The evidence introduced at trial supports the following facts. The dispute centers on three separate maps: (1) a map entitled “Resubdivision of Lot 2 prepared for Pinewood-Monroe, Inc., Cutlers Farm Road, Monroe, Conn., Scale: 1" = 40' Mar. 1,1986,” recorded at the town clerk’s office in Monroe on September 19,1986, and designated map no. 1887 (map one); (2) an unnumbered and unrecorded map entitled “Resubdivision of Lot 2 prepared for Pinewood-Monroe, Inc., Cutlers Farm Road, Monroe, Conn., Scale: 1" = 40' Mar. 1, 1986 Revised July 11,1986” (map two); and (3) a map entitled “Map Showing Easement prepared for Michael Infante, Cutlers Farm Road, Monroe, Conn. Scale: 1" = 40' May 24, 1990,” recorded June 12, 1990, and designated map no. 2148 (map three).

For some time prior to September, 1986, the named defendant, Josephine Infante, owned approximately three and one-third acres of land in Monroe known as 310 Cutlers Farm Road. On September 2, 1986, she deeded approximately one acre of the parcel to Anthony Testo subject to an easement. The deed designated the parcel as “Lot A on a certain map entitled, ‘Resubdivision of Lot 2’ prepared for Pinewood-Monroe, Inc., Cutlers Farm Road, Monroe, Conn., Scale: 1" = 40' Mar. 1, 1986 Revised July 11, 1986 which map is on file in the office of the Town Clerk to which reference may be had for a more particular description of the premises.” Although this deed referred to the map as “on file” in the office of the town clerk, the defendants concede that a map with that title was never recorded.

The deed further contained language reserving a driveway easement in favor of “Parcel B,” the portion of the Cutlers Farm Road property retained by the named defendant. The deed also provided that “[t]he Grantor reserves the right to install a black top driveway upon the driveway easement and reserves the right and assumes the obligation to maintain and repair and snow plow said driveway . . . [and] the right to plant hemlocks for screening along driveway easement.”

On October 2,1986, the deed from the named defendant to Testo was recorded in the Monroe town clerk’s office. On September 19, 1986, after execution of the deed, but before the deed was recorded, map one was filed in the Monroe town clerk’s office. While not specifically labeled as an easement, an easement area is shown by broken lines on this map, crossing lot A from Cutlers Farm Road east to a shed owned by the defendants. Both parties agree that this described an existing paved driveway to the shed servicing lot B.

On October 21,1986, Testo conveyed his interest in lot A to Jefferson Scinto and David Shapiro (Testo deed). The deed was recorded October 22, 1986, and incorporated the exact legal description of the property contained in the prior deed including the words “Revised July 11, 1986,” but identifying the map on file as map no. 1887 (map one).

On May 8, 1987, Scinto and Shapiro deeded their interest in lot A to the plaintiffs, Gerardo and Angela Mastronardi (Scinto-Shapiro deed). That deed omitted the words “Revised July 11,1986” but designated the relevant map as map one. Both the Testo deed and the Scinto-Shapiro deed indicated that lot A was conveyed subject to “a driveway easement as shown on said map in favor of Parcel B; easements conditions and agreements contained in a deed from Josephine Infante to Anthony Testo dated September 2, 1986 . . . .”

Sometime after the plaintiffs obtained title to lot A, the defendants made certain improvements to lot B, building another garage to the east of their current garage. In conjunction with those improvements, the defendants paved an additional area. In 1990, the defendants planted hemlock trees along the lot A side of the driveway, extending beyond the area of the shed.

On June 12, 1990, map three was recorded in the Monroe town clerk’s office. The purported easement shown on that map is greater than the driveway easement shown on map one and extends beyond the shed.

The sole issue to be determined is whether the trial court improperly accepted the referee’s findings of fact, adopted her report and concluded that the easement at issue was as shown on map one. The defendants argue that no easement appears on map one, but even if it is assumed that one is shown, “the alleged peninsula shaped ‘easement’ in the rear serves no purpose. Certainly, it was not Mrs. Infante’s intent to create an easement which would not serve her purpose.” The defendants also argue that their right to claim the easement is not affected by the fact that the map showing the larger easement was not recorded until three and one-half years after the land had been transferred.

We agree with the defendants that a deed is not invalidated merely by the fact that it references an unofficial, unattached or unrecorded map, and that a description in a deed may not be invalidated because it refers to an unrecorded map. The issue, in this case, however, is not whether an easement existed, but the extent and location of the easement. The defendants ask us to find that the trial court’s conclusions were improper as a matter of law. They ask us to determine that an easement, specifically that shown on map three, not recorded until years after an original conveyance and two intervening conveyances, was within the chain of title and binding on the plaintiffs, even where no physical evidence of the easement existed on the property. We cannot do that.

The description of the easement in the deed is not ambiguous on its face. It makes clear reference to a map entitled, “Mar. 1, 1986 Revised July 11, 1986 which map is on file in the office of the Town Clerk.” Ambiguity arises, however, because the only map on file at the time the deed was recorded bears the date “Mar. 1, 1986,” (map one) instead of “Mar. 1, 1986 Revised July 11,1986” (map two). See, e.g., F. & AK, Inc. v. Sleeper, 161 Conn. 505, 510-11, 289 A.2d 905 (1971) (finding deeds contained latent ambiguity where, although certain on face, they were rendered uncertain when compared to land that they purported to describe). In this case, as the deed gives only a general description of the easement, a map is controlling as to the location and boundaries of the easement. The question is which, map is to be used for the purpose of making that determination.

If the description in a deed is clear and unambiguous, it must be given effect. Id., 510. “Where there is an ambiguity in the description of a boundary line in a deed, the question of what the parties intended that line to be is one of fact for the trial court. ... In construing a deed, a court must consider the language and terms of the instrument as a whole . . . the words are to be given their ordinary popular meaning, unless their context, or the circumstances, show that a special meaning was intended. . . .” (Citations omitted.) Lake Garda Improvement Assn. v. Battistoni, 160 Conn. 503, 511-12, 280 A.2d 877 (1971).

Our standard of review on a challenge to the trial court’s factual findings requires the defendants to establish that the factual findings were clearly erroneous. Practice Book § 4061; Cashman v. Calvo, 196 Conn. 509, 516, 493 A.2d 891 (1985). A finding is “clearly erroneous,” when, even though the finding is supported by some evidence, the reviewing court, on the basis of all the evidence, is left with the definite and firm conviction that a mistake has been committed by the fact finder. Beizer v. Goepfert, 28 Conn. App. 693, 704, 613 A.2d 1336, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992), cert. denied, U.S. , 113 S. Ct. 1416, 122 L. Ed. 2d 786 (1993). We cannot disturb the trial court’s finding if it is legally supported by evidence of the surrounding circumstances and the situation of the property. Young Men’s Christian Assn. v. Zemel Bros., Inc., 171 Conn. 310, 312, 370 A.2d 937 (1976); Christen v. Ruppe, 131 Conn. 149, 152, 38 A.2d 439 (1944).

In the present case, the attorney state trial referee heard testimony of numerous witnesses including Gerardo Mastronardi, Michael Infante and Paul Restuccia, a title searcher, among others. The referee correctly sought to discover the intent of the parties to the initial conveyance by considering evidence of the situation of the properties and the circumstances surrounding the transaction and then looking at the terms of the original deed in light of those surrounding circumstances. F. & AK, Inc. v. Sleeper, supra, 161 Conn. 511.

The language of the deed in question describes an easement reserved for driveway purposes. Map one was the only map on record from September 19,1986, prior to the recording of the original deed, until June 12, 1990, when the defendants filed map three, well after the transfer of the property to the plaintiffs. Map one contained markings that would lead a reasonable person to conclude that the markings designated the easement area. The fact finder found that map one showed the easement that was intended to be reserved by the grantor. The fact finder’s conclusions are based on sufficient evidence and are not clearly erroneous.

One who has actual notice of the equitable rights of another, even if those rights are not recorded, is bound to recognize those rights. Lazoff v. Padgett, 2 Conn. App. 246, 249, 477 A.2d 155, cert. denied, 194 Conn. 806, 482 A.2d 711 (1984), citing Home Owners’ Loan Corp. v. Sears, Roebuck & Co., 123 Conn. 232, 240, 193 A. 769 (1937). In law, full and adequate means of knowledge ordinarily are equivalent to knowledge. Attardo v. Ambriscoe, 147 Conn. 708, 711, 166 A.2d 458 (1960); Myers v. Burke, 120 Conn. 69, 75, 179 A. 88 (1935).

The plaintiffs had neither actual notice of the extent of the claimed easement, nor “full and adequate means of knowledge” of the size and scope of that easement as claimed to be shown by map three. The plaintiffs had actual notice of an easement only up to the shed and covering the paved driveway area as shown on map one. A reasonably prudent person who diligently searched the land records would have every right to rely on the map that was recorded. The words “as Revised July 11,1986,” in the original deed may have reasonably been overlooked as a mere clerical error. This leads logically to the conclusion that the recorded map, map one, and not the unrecorded map two, was the one incorporated by reference into the deed.

We cannot agree with the defendants that discrepancies in the chain of deeds “are insufficient as a matter of law to undercut the defendants’ claim of an easement.” The defendants rely on American Trading Real Estate Properties, Inc. v. Trumbull, 215 Conn. 68, 76, 574 A.2d 796 (1990). Our Supreme Court stated there that, “[bjecause the older deeds and maps that make up our land records are often imprecise, we have held that such discrepancies [between deed and map] will not defeat a claim when other credible evidence supports it.” (Emphasis added.) Id. The defendants implicitly argue that map two and map three were such credible evidence and that it was clearly erroneous not to conclude that they showed the intended easement. For the reasons previously discussed, we conclude that the trial referee’s findings were not clearly erroneous.

The defendants also claim that the court improperly found that trees could not be planted anywhere in the easement, and that the easement was not an exclusive one. Because these issues turn primarily on issues of fact, and the defendants have not carried their burden of showing the trial court’s findings to be clearly erroneous, these challenges must likewise fail. See Oak Leaf Marina, Inc. v. Ertel, 23 Conn. App. 91, 97, 579 A.2d 568, cert. denied, 216 Conn. 827, 582 A.2d 206 (1990).

The judgment is affirmed.

In this opinion the other judges concurred.

(See Appendix B on following page.)

Appendix B

       Michael Infante, the named defendant’s husband, is also a defendant, alleged to have “owned, possessed and/or controlled” land “directly across from and southwest of the plaintiffs’ property.”

       Appendix A.

       Appendix B. Map three is identical to map two, except for the different date and title.

       The referee’s report notes that the “referenced map was not filed until some time in 1990,” apparently referring to map three, recorded June 12, 1990. As previously stated, map three is identical in appearance to the earlier map two.

       All of the maps depict a shed located on lot A with the description “Existing shed (to be removed).” The shed was removed by the plaintiffs sometime in the fall of 1990.

       In accepting the attorney state trial referee’s report, the trial court accepted the following conclusions:
      “1. Infante reserved rights including a driveway easement, a right to plant hemlocks along the driveway easement, and other rights in her deed to Testo.
      “2. The deed and reserved easement rights are valid property interests running with the land.
      “3. The easement area as agreed by plaintiff at trial, extends to the ‘shed’ as described in the broken line area from Cutlers Farm Road to shed as seen on Map 1887. Said easement area ends where shed on said map begins.
      “4. Mr. Mastronardi had actual notice of easement area up to shed as he inspected Lot A before purchase and saw the paved area.
      “5. The Mastronardis purchased Lot A subject to the easement set forth in paragraphs numbered 4, 5, and 6 on deed from Infante to Testo with the map designating the driveway easement area being the map entitled ‘Resubdivision of Lot’ prepared for Pinewood-Monroe, Inc., Cutlers Farm Road, Monroe, Conn., Scale: 1" = 40'; March 1, 1986, being the relevant map that was recorded prior to deed from Infante to Testo being recorded.
      “6. Said map was subsequently designated as Map 1887.
      “7. The language of the deed does not designate that said driveway easement is for the exclusive use of Infante.
      “8. Infante cannot use said driveway easement in a manner that interferes with plaintiffs’ use of easement area.
      “9. The placement of hemlocks along the Lot A side of the driveway easement area up to the shed interferes with the use of the easement area by plaintiff.
      “10. The placement of hemlocks beyond the area where the shed starts is on the plaintiffs’ property and beyond the easement area.
      “11. The Infantes and their agents, servants and employees should desist and refrain from using, possessing, controlling, maintaining any portion of the easement area designated on Map 1887 in such a manner that it interferes with the use by Mastronardi of said easement area. Use by Infante for ingress and egress are deemed acceptable use that does not interfere with use of easement area by Mastronardi. Parking in area by Infantes or guests or tenants is deemed to interfere with use by Mastronardi.
      “12. The Mastronardis and their agents, servants and employees should desist and refrain from using, possessing, controlling and maintaining any portion of the easement area designated on Map 1887 in such a manner that it interferes with Infante’s use said easement area for ingress and egress.
      “13. To the extent that either party has materials or objects on easement area designated on Map 1887, other than paving material to cover driveway area and/or hemlocks along ‘Lot B’: side of easement area, same should be removed within a reasonable time from the date of this report.
      “14. To the extent that Infante has applied any paving material on Lot A beyond easement area designated on Map 1887, same should be removed and property restored to condition as reasonably close to that prior to application of paving material as practicable within a reasonable time from the date of this report.”

       The plaintiffs agreed at trial that a valid driveway easement exists up to the shed as designated on map one.


text:
    State of Connecticut v. Scott Elijah
    (12340)
    Dupont, C. J., Landau and Schaller, Js.
    Argued February 14
    decision released June 7, 1994

      Norman A. Pattis, with whom, on the brief, was John R. Williams, for the appellant (defendant).

      Nancy L. Gillespie, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James Dinnan, assistant state’s attorney, for the appellee (state).
   Schaller, J.

The dispositive issue on appeal is whether the trial court, in canvassing the defendant before accepting an Alford plea, denied the defendant his due process rights by not properly advising him of the essential elements of the crimes to which he was pleading guilty.

The defendant pleaded guilty to the crimes of possession of narcotics with the intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-277 and conspiracy to sell narcotics in violation of General Statutes § 53a-48 (a). Subsequent to the trial court’s acceptance of the plea, the defendant attempted to withdraw the plea pursuant to Practice Book § 719 et seq. A plea can be withdrawn on any of the grounds enumerated in Practice Book § 721. The defendant presents the following issues on appeal: whether the trial court improperly (1) accepted his plea of guilty without apprising him of the nature of the charges against him pursuant to Practice Book § 711, and (2) refused to allow him to withdraw his plea under § 721 (5), which provides that a defendant may withdraw a plea after acceptance if “[tjhere was no factual basis for the plea.” Because we reverse the trial court’s judgment on the ground that the trial court did not properly inform the defendant of the nature of the charges against him, we do not reach the issue of whether there was an adequate factual basis for the plea.

Our Supreme Court has stated that “unless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable. ... In choosing to plead guilty, the defendant is waiving several constitutional rights, including his privilege against self-incrimination, his right to trial by jury, and his right to confront his accusers. . . . We therefore require the record affirmatively to disclose that the defendant’s choice was made intelligently and voluntarily. . . .” (Citations omitted.) State v. Childree, 189 Conn. 114, 119-20, 454 A.2d 1274 (1983). These principles are in accordance with Practice Book § 711 (1) et seq. “Practice Book § 711 (1) requires that the trial court determine that the defendant ‘fully understands . . . [t]he nature of the charge to which the plea is offered . . . .’Only recently [our Supreme Court has] stated, ‘[t]he provisions of Practice Book § 711 are mandatory. ... It is the duty of the trial judge to comply strictly with its terms.’ ” (Citations omitted; emphasis added.) State v. Evans, 5 Conn. App. 113, 116, 497 A.2d 73 (1985).

There are two caveats with respect to this duty. First, although the trial court need not state all the elements of the crime charged, it must recite the critical elements. State v. Childree, supra, 189 Conn. 123; State v. Evans, supra, 5 Conn. App. 117. In the present case, because the trial court did not state any of the elements, this distinction is irrelevant. Second, our Supreme Court has also stated that the recitation of the elements by the trial court is necessary only when “it is not appropriate to presume that defense counsel has explained the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.” State v. Childree, supra, 123.

Our appellate courts have concluded in several cases that the trial court could properly determine, upon inquiry, that defense counsel has explained sufficiently the elements of the offense to the defendant. We do not believe, however, that the present case falls into this category. In Oppel v. Lopes, 200 Conn. 553, 557 n.3, 512 A.2d 888 (1986), the trial court asked the defendant if his attorney had advised him of the “essential elements” of the crime, to which the defendant responded, “Yes.” Our Supreme Court determined that this response provided a sufficient showing that the defendant was aware of the elements. Id., 557. Likewise, in State v. Brown, 19 Conn. App. 640, 645 n.2, 563 A.2d 1379, cert. denied, 212 Conn. 821, 565 A.2d 540 (1989), we determined that the presumption was warranted when the trial court asked the defendant if his attorney had explained ‘ ‘all of the elements which go to make up the crimes to which [he had] just pleaded.”

In Bowers v. Warden, 19 Conn. App. 440, 442, 562 A.2d 888, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989), an appeal from the habeas court, this court found that a similar inquiry gave rise to the presumption that the petitioner was advised of the elements by defense counsel. In that case, the trial court asked the petitioner if he understood the crime with which he had been charged, murder, and “what is involved in the charge itself,” to which the petitioner responded affirmatively. Id. In determining that the petitioner had been sufficiently apprised of the elements of the crime, the habeas court did not rely solely on the inquiry of the trial court. The habeas court turned to other factors in conjunction with the representation in finding that the petitioner was aware of the elements of the crimes with which he was charged. For example, two attorneys who had represented the petitioner at the plea hearing testified before the habeas court that they had each informed the petitioner of the elements of the offense prior to his plea. Id., 442-43.

The present case, while similar, is not of the same nature. Here, the trial court asked the defendant, “[Did your attorney] explain those charges to you so you understand, generally, what the state would have to prove to convict you of the charge?” The defendant responded, “Yes.” This question alone is insufficient to support the presumption that counsel explained the elements of the charged offenses to the defendant. The facts of the inquiry in this case distinguish it from Oppel and Brown, where the defendant was asked if his attorney had explained the elements of the charge. It is also distinguishable from Bowers where the trial court’s inquiry to the petitioner was supplemented by other evidence before the habeas court which gave rise to the presumption that counsel had explained the elements.

We reaffirm the principle that “[i]t is the duty of the trial judge” to comply with § 711. State v. Evans, supra, 5 Conn. App. 116. The presumption that defense counsel has explained the elements of the offense to the defendant arises only in limited circumstances where the record clearly supports that presumption. The inquiry in the present case, standing alone, is insufficient.

The judgment is reversed and the case is remanded with direction to allow the defendant to withdraw his guilty plea and for further proceedings in accordance with law.

In this opinion the other judges concurred.

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). An Alford plea is one in which the defendant pleads guilty but does not admit that the allegations against him are true; rather, he admits that the prosecution would be able to prove that the allegations are true.

       Practice Book § 721 provides in pertinent part: “The grounds for allowing the defendant to withdraw his plea of guilty after acceptance are as follows: (1) The plea was accepted without substantial compliance with Sec. 711; (2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed ... (5) There was no factual basis for the plea


text:
    State of Connecticut v. Kevin Lee Jackson
    (11674)
    Lavery, Landau and Schaller, Js.

      Argued January 6
    decision released June 7, 1994

      Suzanne Zitser, assistant public defender, for the appellant (defendant).

      Jack W. Fisher, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Robert Katz, senior assistant state’s attorney, for the appellee (state).
   Schaller, J.

The defendant, Kevin Lee Jackson, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the second degree in violation of General Statutes § 53a-102 and larceny in the first degree in violation of General Statutes § 53a-122. The defendant claims that the trial court improperly (1) failed to provide a limiting instruction on the use of the defendant’s prior felony convictions, (2) failed to instruct the jury on the element of intent to commit a crime as to the burglary count, and (3) instructed the jury on reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At about 8 p.m. on April 10, 1991, Ernest and Zulma Heidelberg, along with their daughter Denise, left their home in Westport to go out for dinner. When they returned at approximately 9:30 p.m., they immediately observed that doors that had been shut when they left were open, and lights that they had turned off were on. Ernest Heidelberg entered the house and found that several items, including jewelry, had been removed and other items, such as clothing, were out of place. He also discovered a pile of appliances, including a television, a stereo and a microwave oven, on the lawn outside of their house.

The Westport police arrived and conducted a search of the house and premises. At that time, the police did not locate any suspects within the house, on the premises or in the vicinity. Although the police attempted to lift fingerprints, the results were inconclusive due to smudges and overlaps.

The following day, April 11, 1991, in preparing an inventory of missing items, Ernest discovered a wallet and black cap on the lawn beneath a dining room window. This window had been closed when the Heidelbergs left for dinner the previous evening, but was open when they returned. He also found a glove in the woodpile in the backyard. None of the items belonged to the family.

Detective Michael Barrett took the items into custody. In the wallet, Barrett found six appointment cards from a probation officer who testified at trial that the cards referred to scheduled meetings with the defendant. Barrett also discovered several tickets from a Bridgeport pawn shop in the wallet. Barrett went to the pawn shop that had issued the tickets, took photographs of the items that had been pawned, informed the store owner to put a hold on the items, and instructed the owner to tell any person who came to claim the items to contact the Westport police department. Barrett later determined that the pawned items had not been taken from the Heidelberg residence. The owner of the pawn shop subsequently contacted Barrett and informed him that the defendant had attempted to redeem the items, but that he instructed the defendant to contact the Westport police.

On April 12,1991, the defendant called Barrett and told him that he wanted to report the theft of his wallet in Bridgeport a few days earlier, that he had already reported the theft to the Bridgeport police, and that he understood that the wallet had been discovered at the site of a burglary in Westport. The defendant agreed to go to the Westport police station later that day to give a sworn statement, but failed to meet with Barrett. The defendant was arrested subsequently and charged with the crimes of burglary and larceny.

At trial, the defendant presented an alibi defense. Testimony and evidence presented by the defendant indicated that in the late afternoon on April 10,1991, he went out to dinner with a girlfriend. After dinner, at approximately 5 p.m., he and his girlfriend drove directly to his sister’s home in Bridgeport, where they spent the night. The defendant and his girlfriend left his sister’s home briefly, at about 7:30 p.m., to buy some liquor at a nearby store.

I

We first address the defendant’s claim that the court improperly failed to provide a limiting instruction regarding the use of the defendant’s felony convictions. Further facts are necessary to address the issue. After the trial, counsel for the defense and for the state entered into a stipulation of facts stating in part that defense counsel submitted to the trial judge in chambers written requests to charge, which included a request concerning the limitations on the use of the defendant’s prior felony convictions. Defense counsel, however, failed to file a copy of that request with the court clerk, and failed to take exception to the charge as given.

The threshold question that we must address is whether the claim is reviewable. Practice Book § 852 requires that a party either file a written request to charge or take an exception to the charge as given in order to preserve the issue for appeal. The defendant first contends that the act of submitting a written request to charge to the trial judge is the functional equivalent oí filing the request to charge with the court clerk, and therefore, satisfies the provisions of § 852.

In State v. Deptula, 31 Conn. App. 140, 623 A.2d 525 (1993) , appeal dismissed, 228 Conn. 852, 635 A.2d 812 (1994) , we discussed the requirements set forth in § 852 in the context of a claim that the defendant’s written request to charge and exception to the charge as given were inadequate. There we stated that “[wjhile we would prefer it if the defendant’s counsel had drafted a more thorough request to charge, or if he had made a more specific exception, we will review this claim because the defendant substantially complied with the requirements of Practice Book § 852 and the court understood the grounds for the objection. There is no need to hold the defendant to the strict requirement where, as here, the purpose of the rule has been satisfied.” (Emphasis added.) Id., 147.

We now examine the circumstances presented in this case to determine whether the defendant has substantially complied with § 852. Section 852 contains no provision stating that a claim of error in the jury instructions is preserved by a written request to charge submitted directly to the trial court judge rather than filed with the court clerk. Further, the failure to file a copy of the request to charge with the clerk leaves the trial court file void of any official reference to the request to charge. Without such official reference in the trial court file, the documents presented to the judge in chambers were not final requests to charge, but rather, were proposed documents subject to change by the defendant when he filed requests to charge with the trial court clerk. We conclude that the process of providing the trial court judge, in chambers, with proposed requests to charge does not rise to the level of substantial compliance with § 852.

We conclude that the failure of the defendant either to file the written request to charge or to take an exception to the charge as given renders the issue unpreserved for appeal.

II

The defendant next contends that the trial court’s instruction on the essential element of intent for the crime of burglary was constitutionally inadequate. The defendant failed to take an exception to this charge at trial, and seeks review of this unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or pursuant to the plain error doctrine as set forth in Practice Book § 4185. In State v. Golding, supra, 239-40, our Supreme Court held “that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.”

We conclude that the record is adequate for review of the alleged claim of error. In addition, because the failure to instruct the jury adequately with regard to an essential element of the crime may result in a due process violation implicating the fairness of the trial; State v. Hinton, 227 Conn. 301, 313-14, 630 A.2d 593 (1993); State v. Allen, 216 Conn. 367, 383, 579 A.2d 1066 (1990); State v. Taft, 25 Conn. App. 149, 153, 593 A.2d 973, cert. denied, 220 Conn. 918, 597 A.2d 343 (1991) ; we conclude that the issue is one of constitutional magnitude implicating a fundamental right.

We now examine whether the alleged violation clearly exists and clearly deprived the defendant of a fair trial. At the outset, we note that, under the third prong of Golding, “a defendant may prevail on an unpreserved constitutional claim of instructional error only if, considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled. . . . State v. McMurray, 217 Conn. 243, 253, 585 A.2d 677 (1991).” (Internal quotation marks omitted.) State v. Walton, 227 Conn. 32, 65, 630 A.2d 990 (1993). Our Supreme Court has further held that “[a] jury instruction is constitutionally adequate if it provides the jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present. . . . State v. Usry, 205 Conn. 298, 316, 533 A.2d 212 (1987); State v. Sinclair, 197 Conn. 574, 581, 500 A.2d 539 (1985); see State v. Wood, 208 Conn. 125, 132, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988).” (Internal quotation marks omitted.) State v. Avila, 223 Conn. 595, 602-603, 613 A.2d 731 (1992) .

The specific portion of the trial court’s charge at issue is as follows: “Now as to burglary in the second degree as defined in Section 53a-102 of the Connecticut General Statutes which reads as follows, ‘A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.’ The State must prove beyond a reasonable doubt, one, that the defendant knowingly entered or remained unlawfully in the premises, two, that said premises constituted a dwelling, three, that the unlawful entry or remaining was effected or occurred with the defendant’s intent to commit a crime in the night, and four, that this was effected or occurred with the defendant’s intent to commit a crime in the night, and four, that this was effected or occurred at night.” The court clearly explained that each element of the crime, including the intent to commit a crime within the dwelling, had to be proven beyond a reasonable doubt. Although the court later discussed the element of intent with regard to the crime of larceny, the court did not elaborate further on the element of intent for the crime of burglary.

In State v. Sinclair, supra, 197 Conn. 580-81, our Supreme Court rejected the claim that the trial court’s failure to provide the statutory definition of intent during its instructions on the crime of burglary in the second degree amounted to a constitutional violation. In that case, the court noted that the trial court had explained that the jury had to be convinced beyond a reasonable doubt that the defendant intended to commit a crime within the dwelling. The court stated that “the trial court’s failure specifically to define intent, at least in the absence of a request or exception by the defendant, was not reversible error because it is not reasonably possible that the jury was misled as to its meaning. The word intent was used in its ordinary sense, in a manner which clearly conveyed what had to be proven by the state to justify a conviction. ‘[Wjhen a word contained in an essential element carries its ordinary meaning, failure to give the statutory definition will not constitute error.’ State v. Kurvin, [186 Conn. 555, 562, 442 A.2d 1327 (1982)].” Id., 581; see State v. Howard, 204 Conn. 1, 3-4, 526 A.2d 526 (1987) (citing Sinclair as governing court’s conclusion that failure to provide statutory definition of intent did not render jury instructions inadequate).

In this case, the trial court clearly explained that the state had to prove that the defendant intended to commit a crime within the building. The court later reiterated that the state had to prove, beyond a reasonable doubt, that “the unlawful entry or remaining was effected or occurred with the defendant’s intent to commit a crime in the night . . . .” The court thus linked the element of intent with a criminal purpose. Upon review of the trial court’s instructions, we conclude that, although the court could have provided more thorough instructions through the use of the statutory definition of intent or through further explanation of the role of intent in this crime, it is not reasonably possible that the jury was misled. As a result, the defendant’s claim fails under the third prong of State v. Golding, supra, 213 Conn. 239-40.

In addition, “[i]t is . . . well established that 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. Wright, 207 Conn. 276, 288-89, 542 A.2d 299 (1988); State v. Miller, 202 Conn. 463, 469, 522 A.2d 249 (1987).” (Internal quotation marks omitted.) State v. Boles, 223 Conn. 535, 551, 613 A.2d 770 (1992); State v. Sawyer, 32 Conn. App. 854, 856-57, 632 A.2d 372, cert. denied, 228 Conn. 911, 635 A.2d 1230 (1993). We conclude that the defendant’s claim does not rise to a level warranting plain error review.

III

Finally, the defendant contends that trial court improperly instructed the jury regarding reasonable doubt when it explained that “[a] reasonable doubt is a doubt . . . for which a valid reason can be assigned . . . .” This issue was not preserved at the trial court, and the defendant now seeks review of this unpreserved claim under either State v. Golding, supra, 213 Conn. 239-40, or the plain error doctrine.

Similar claims have been raised in several other cases, and have been rejected consistently. See, e.g., State v. Campbell, 225 Conn. 650, 626 A.2d 287 (1993); State v. Thomas, 214 Conn. 118, 570 A.2d 1123 (1990); State v. Crosby, 34 Conn. App. 261, 641 A.2d 406 (1994); State v. Jackson, 29 Conn. App. 584, 617 A.2d 174 (1992) , appeal dismissed, 228 Conn. 59, 634 A.2d 293 (1993) . We conclude that the instructions regarding reasonable doubt, as a whole, adequately informed the jury that the state had the burden of proving the defendant guilty beyond a reasonable doubt. See State v. Campbell, supra, 662; State v. Crosby, supra, 276. As a result, we also conclude that no constitutional violation exists that clearly deprived the defendant of a fair trial. We decline, therefore, to grant review of this claim pursuant to State v. Golding, supra, 233, and conclude, as well, that plain error review is unwarranted.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-102 provides in pertinent part: “(a) A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.”

       General Statutes § 53a-122 provides in pertinent part: “(a) A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and ... (2) the value of the property or service exceeds ten thousand dollars . . . .”
      General Statutes § 53a-119 provides in pertinent part: “larceny defined. A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”

       The stipulation of facts, dated March 5, 1993, stated as follows:
      “STIPULATION OF FACTS
      “The respective attorneys involved in the trial of the above captioned case stipulate to the following facts:
      “1. Prior to the court’s instructions to the jury on January 27, 1992, an in-chambers conference was held concerning the court’s proposed jury charge. The conference was attended by Attorney Robert Katz on behalf of the state of Connecticut, Attorney Mark Warren on behalf of the defendant, and Judge Hickey.
      “2. Both Attorneys’ Katz and Warren had prepared and planned to file their respective requests to charge, copies of which are attached to this stipulation.
      “3. The attorneys submitted the requests to charge to Judge Hickey, who reviewed them. Attorney Warren recalls that Judge Hickey informed counsel that his prepared instructions included the substance of said requests. Attorney Katz has no recollection either that this statement was or was not made by Judge Hickey.
      “4. Judge Hickey has no recollection of what occurred in his chambers regarding this charging conference.

        “Isl Judge William F. Hickey, Jr.

        “Isl Robert Katz Assistant State’s Attorney

        “Isl Attorney Mark Warren Defendant’s Trial Counsel”

       Practice Book § 852 provides: “The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.”

       During the trial court’s charge on larceny, the court provided a general definition of intent and explained further the element of intent in relation to larceny. Upon review of the entire jury instructions, it is clear that this instruction on intent pertained solely to the crime of larceny.