author: LAVERY, C. J.

text:
    STATE OF CONNECTICUT v. MICHAEL A. GRIFFIN
    (AC 22369)
    Lavery, C. J., and West and DiPentima, Js.

      Argued May 28
    officially released August 12, 2003

      Richard R. Brown, with whom, on the brief, was Robert T. Rimmer, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary Elizabeth Baran, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Michael A. Griffin, appeals from the judgment of conviction, rendered after a trial to the court, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), and attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (2). On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction and (2) the court improperly credited the state’s expert witnesses over his expert witnesses. We affirm the judgment of the trial court.

The court found the following relevant facts. On January 14, 1996, the defendant, with no specific victim in mind, planned and prepared to assault a person with an axe. He prepared for his intended assault by sawing off the bottom part of an axe handle to conceal the axe head in his backpack. The defendant drove to a shopping center on Route 80 in North Madison and parked his car. Taking the backpack containing the concealed axe, he began to walk along Route 80 in search of a house where he would execute his attack. At around 7:05 p.m., a Madison police officer briefly observed the defendant walking away from the shopping center. The defendant walked for at least one-half hour until he reached the residence of the victim, James Disston, where the defendant’s “gut feeling” told him to carry out his attack.

The defendant removed the axe from his backpack and deposited the backpack on the driveway next door to the victim’s residence. Sometime between 8 p.m. and 8:15 p.m., the defendant approached the victim’s front door and rang the doorbell. Seeking to gain entry, the defendant, speaking through the victim’s closed front door, related a false stoiy that his car had broken down and that its heater was not working. As the victim “turned the front door dead bolt, the defendant slammed the door back and burst inside.” The defendant immediately attacked the victim with the axe, concentrating blows on the victim’s torso and head. The victim’s wife called the police during the attack. After struggling with the defendant for a while, the victim successfully ejected him from the house. The defendant slipped, fell, and then got up and fled from the victim’s premises.

The police apprehended the defendant the following day, January 15, 1996, and he was admitted to the psychiatric ward at the Hospital of Saint Raphael in New Haven. The state charged the defendant with one count of burglary in the first degree and one count of attempt to commit assault in the first degree. The defendant was convicted of both counts and this appeal followed. Additional facts will be provided as necessary.

I

The defendant claims that the evidence adduced at trial was insufficient to support his conviction of (1) burglary in the first degree and (2) attempt to commit assault in the first degree. We disagree.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the [finding of guilt]. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Ward, 76 Conn. App. 779, 796, 821 A.2d 822, cert. denied, 264 Conn. 918, 826 A.2d 1160 (2003). “In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Webb, 75 Conn. App. 447, 451, 817 A.2d 122, cert. denied, 263 Conn. 919, 822 A.2d 244 (2003).

A

The defendant first claims that the evidence adduced at trial was insufficient to support his conviction of burglary in the first degree. Specifically, the defendant argues that the testimony of the victim and his wife conflicted over whether the defendant had entered the victim’s residence and, as a consequence, there was insufficient evidence for the court to conclude beyond a reasonable doubt that the defendant had entered the residence.

Section 53a-101 (a) provides in relevant part: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument . . . .” This court has held that an entry occurs with “[a]ny penetration, however slight, of the space within the . . . [building] by the defendant, or by any part of his body .... Accordingly, it is a sufficient entry when the defendant reaches his finger, hand, or arm inside the . . . [building].” (Internal quotation marks omitted.) State v. Smith, 156 Conn. 378, 382, 242 A.2d 763 (1968), quoting 2 Wharton, Criminal Law and Procedure (1957) § 421, p. 43. Likewise, this court has recognized that an entry occurs once a defendant breaches the plane of an entryway into a subject building. State v. Liebowitz, 65 Conn. App. 788, 799, 783 A.2d 1108, cert. denied, 259 Conn. 901, 789 A.2d 992 (2001). Direct evidence of an entry is not required when the evidence is such that the trier of fact reasonably could infer that something the defendant did inside the building could not have been done without first entering the building. State v. Little, 194 Conn. 665, 674 n.11, 485 A.2d 913 (1984).

Although the defendant claims that there was insufficient evidence to support the court’s conclusion, in point of fact, the defendant wants us to revisit the testimony presented at trial and to weigh it differently. That we simply cannot do. “If there is conflicting evidence . . . the fact finder is free to determine which version of the event in question it finds most credible.” (Internal quotation marks omitted.) Fink v. Golenbock, 238 Conn. 183, 210, 680 A.2d 1243 (1996). “The determination of a witness’ credibility is the special function of the trial court. This court cannot sift and weigh evidence. . . . Otherwise, [t]his court would then, by way of fact-finding, be required to adjudicate the validity and the reliability of that evidence. At this stage of the proceedings, we are incapable of making those necessary determinations. . . . Thus . . . the testimony was for the trial court to assess and we have no appropriate role at this level in determining which of the various witnesses to credit.” (Citations omitted; internal quotation marks omitted.) State v. Nowell, 262 Conn. 686, 695-96, 817 A.2d 1176 (2003).

The evidence adduced at trial was sufficient to establish that the defendant had entered the victim’s residence. The victim testified that when he “went to open up the door, [the defendant] busted into the house, pushed the door . . . and came after me” and that the defendant “was now in my house.” (Emphasis added.) The court was well within its discretion to credit the victim’s version of events over any other version presented at trial.

Furthermore, there was substantial circumstantial evidence presented from which the court reasonably could conclude that the defendant had entered the victim’s residence. See State v. Webb, supra, 75 Conn. App. 451 (“ ‘[i]t is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence’ ”). The victim testified that the defendant had “busted” the door open into the house, leaving a mark on the inside of the victim’s wall. The victim testified further that the defendant came after him, swinging an axe, attacked him with the axe and struggled with him. The defendant inflicted wounds on the victim’s head, neck, back and torso.

The victim’s wife also testified that she saw her husband fighting a man in the front doorway and that she saw someone else’s arms, other than her husband’s, “coming in and reaching and moving all about.” (Emphasis added.) From that evidence, it is reasonable to infer that some part of the defendant’s body had crossed the entryway of the victim’s residence. See State v. Smith, supra, 156 Conn. 381 (trier of fact entitled to infer entry from facts that door opened inward, lock had been broken off, plate on inside of door that was part of locking device tom loose, wires of burglar alarm on inside of door, door frame, broken or disconnected, door open); State v. Adorno, 45 Conn. App. 187, 195, 695 A.2d 6 (“[c]ommon sense dictates that it would be reasonable to conclude that, in using the force necessary to kick open a locked door, the momentum would carry the defendant . . . into the victim’s apartment”), cert. denied, 242 Conn. 904, 697 A.2d 688 (1997).

The testimony of the victim and his wife, along with circumstantial evidence, was sufficient for the court reasonably to conclude that the defendant had entered the victim’s residence in satisfaction of the entry element of burglary in the first degree. Moreover, the court was well within its discretion in crediting the evidence as it did. On the basis of our review of the evidence presented at trial, construed in the light most favorable to sustaining the finding of guilt, we conclude that the court reasonably could have concluded that the cumulative force of the evidence, direct and circumstantial, was sufficient to establish that the defendant had entered the victim’s residence pursuant to § 53a-101 (a).

B

The defendant next claims that the evidence adduced at trial was insufficient to support his conviction of attempt to commit assault in the first degree. Specifically, the defendant claims that there was insufficient evidence to prove beyond a reasonable doubt that he intended to disfigure the victim seriously and permanently. We are not persuaded.

To be guilty of the crime of attempt to commit assault in the first degree, the defendant must have had the specific intent to commit the crime. General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (2). Thus, the defendant must be shown to have had the mental state required to commit assault in the first degree. “To be guilty of assault in the first degree . . . the defendant must intend to disfigure another person seriously and permanently. ... To act intentionally, the defendant must have had the conscious objective to harm the victim.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Anderson, 74 Conn. App. 633, 638, 813 A.2d 1039, cert. denied, 263 Conn. 901, 819 A.2d 837 (2003).

“Intent is a question of fact, the determination of which should stand unless the conclusion drawn by the trier is an unreasonable one.” (Internal quotation marks omitted.) State v. DeJesus, 236 Conn. 189, 197, 672 A.2d 488 (1996). “Intent may be, and usually is, inferred from the defendant’s verbal or physical conduct. . . . Intent may also be inferred from the surrounding circumstances. . . . The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available. . . . Intent may be gleaned from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading up to and immediately following the incident. . . . Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct.” (Internal quotation marks omitted.) State v. Porter, 76 Conn. App. 477, 487-88, 819 A.2d 909, cert. denied, 264 Conn. 910, 826 A.2d 181 (2003).

The defendant argues that the evidence presented shows that the victim was unarmed, that the defendant inflicted multiple blows with an axe, and that if he actually had the intent to do serious and permanent bodily harm to the victim, the attack would have resulted in considerably more harm to the victim than “minor injuries.” Although it is true that intent may be gleaned from circumstantial evidence, including the type of wound inflicted, that is not the only basis from which the trier of fact may infer intent.

Here, there was sufficient evidence presented concerning the defendant’s conduct from which the court reasonably could infer his intent to harm the victim seriously. The evidence presented indicated that the defendant had “busted into [the victim’s] house,” swinging what the victim took to be a “wooden ice scraper,” which in fact was an axe, and that the defendant hit the victim with it. The victim further testified that he was hit on the back of his head and on his arms and torso, including a slash on his stomach that left a permanent scar. The weight of the evidence of the defendant’s conduct in the perception of the court reasonably could have eclipsed other possible inferences that might be drawn from the relatively minor injuries suffered by the victim.

Moreover, an “attempt is complete and punishable, when an act is done with intent to commit the crime . . . whether the purpose fails by reason of interruption ... or for other extrinsic cause.” (Internal quotation marks omitted.) State v. Torres, 47 Conn. App. 205, 220, 703 A.2d 1164 (1997). Thus, the fact that the wounds actually inflicted by the defendant were relatively minor does not mean that there was insufficient evidence to find that he intended to inflict serious injury. There are numerous reasons why a defendant’s intended result may have been frustrated. The evidence indicated that the defendant’s attack on the victim was interrupted because the victim was able to repel the defendant and to expel him from the house. Hence, the court reasonably could have inferred the victim’s resistance, and not any lack of intent on the part of the defendant, to be the reason the defendant was prevented from inflicting further harm on the victim.

On the basis of our review of the evidence presented at trial, construed in the light most favorable to sustaining the finding of guilt, we conclude that the court reasonably could have concluded that the cumulative force of the evidence established that the defendant had the conscious objective to cause the victim serious and permanent disfigurement. We therefore conclude that the evidence was sufficient to support the defendant’s conviction of attempt to commit assault in the first degree pursuant to §§ 53a-49 (a) (2) and 53a-59 (a) (2).

II

Finally, the defendant claims that the court improperly credited the state’s expert witnesses, Eugene Shapiro, a pediatrician, and Joseph V. Penn, a child psychiatrist, over those of the defendant on the issue of insanity. Specifically, the defendant argues that his experts were more credible because Shapiro never met with the defendant, and Penn’s opinion really was that of his supervisor and not his own. We are not persuaded.

“It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. . . . The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony [it] reasonably believes to be credible. ... On appeal, we do not retry the facts or pass on the credibility of witnesses.” (Internal quotation marks omitted.) United Technologies Corp. v. East Windsor, 262 Conn. 11, 26, 807 A.2d 955 (2002). “[I]n its consideration of the testimony of an expert witness, the [trier of fact] might weigh, as it sees fit, the expert’s expertise, his opportunity to observe the defendant and to form an opinion, and his thoroughness. It might consider also the reasonableness of his judgments about the underlying facts and of the conclusions which he drew from them. . . . [T]he [trier of fact] can disbelieve any or all of the evidence on insanity and can construe that evidence in a manner different from the parties’ assertions. ... It is the trier of fact’s function to consider, sift and weigh all the evidence including a determination as to whether any opinions given concerning the defendant’s sanity were undercut or attenuated under all the circumstances.” (Citations omitted; internal quotation marks omitted.) State v. Quinet, 253 Conn. 392, 407-408, 752 A.2d 490 (2000).

The defendant first argues that Shapiro, who is board certified in pediatric infectious diseases with expertise in Lyme disease, was incapable of rendering a more credible and persuasive medical opinion than the defendant’s expert physicians because he never had treated or even personally examined the defendant. Our Supreme Court has stated: “A doctor may give an opinion on a medical issue without having examined or treated the patient. ” (Internal quotation marks omitted.) Shelnitz v. Greenberg, 200 Conn. 58, 67, 509 A.2d 1023 (1986). Here, Shapiro rendered his opinion, on the basis of his experience and education, concerning the presence or absence of symptoms consistent with Lyme disease in the defendant’s medical records. The court was well within its discretion as the trier of fact in finding Shapiro more credible and persuasive than the defendant’s witnesses.

The defendant next argues that the court improperly credited the opinion testimony of Penn, who is boar d certified in child and adolescent psychiatry, over the testimony of the defendant’s expert witnesses because Penn’s opinion was not his own, but rather that of his supervisor at the Yale fellowship program, Howard Zonana, a psychiatrist. The defendant argues that this unduly deprived him of the opportunity to confront and to cross-examine the witness testifying against him.

Penn’s testimony indicated that he merely had consulted with his supervisor to help him state his opinion in a “more succinct manner” and that everything in his report was his opinion. The transcript shows that the defendant extensively cross-examined Penn and that a significant portion of that cross-examination challenged whether Penn’s medical opinion was his own or that of someone else. The court had the opportunity to hear and to evaluate the defendant’s arguments concerning the basis of Penn’s medical opinion. Clearly, the court was not persuaded by the defendant’s challenge to Penn’s testimony and acted properly within its province as trier of fact in crediting Penn over the defendant’s expert witnesses.

We also note that in its memorandum of decision, the court specifically discusses certain “critical factors” that it found to be addressed credibly and persuasively in the expert testimony of Penn and Shapiro. Most importantly, the court found the testimony of Shapiro and Penn “had a more comprehensive foundation in both fact and preparation, was more objective and less speculative, had a stronger clinical and empirical basis, was better reasoned and therefore more persuasive in the perception of the court as finder of fact.”

We conclude that the court acted properly in its function as trier of fact in determining that the expert testimony of Shapiro and Penn was more credible than that of the defendant’s experts.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the defendant contends that there is a conflict in the testimony of the victim and the victim’s wife as to whether the defendant had entered the victim’s residence, in our view, her testimonial evidence further supports the court’s finding that the defendant had entered the residence.

       “There are two essential elements of an attempt under [General Statutes § 53a-49 (a) (2)]. They are, first, that the defendant had a specific intent to commit the crime as charged, and, second, that he did some overt act adapted and intended to effectuate that intent.” (Internal quotation marks omitted.) State v. Torres, 47 Conn. App. 205, 220, 703 A.2d 1164 (1997). In the present case, the defendant challenges only the intent element.

       A permanent scar constitutes serious and permanent disfigurement. See State v. Anderson, supra, 74 Conn. App. 643-44.

       Those factors include “[tjhe defendant’s premeditated and purposeful conduct in preparing for his attack, carrying it out and in his efforts to avoid detection or apprehension once it was concluded,” “[t]he defendant’s ability to organize his thinking and function normally before and after the attack,” “ [t]he absence of any evidence that the defendant had any break with reality,” “[t]he defendant’s selective amnesia in interaction with his experts in contradiction to the recall he showed in his statements to the police and at the Hospital of Saint Raphael. ” Additionally, the court thought that the testimony of the defendant’s expert witnesses was undercut by their reliance, at least in part, on the self-serving statements of the defendant or his family.


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MICHAEL JEFFREYS
    (AC 21542)
    Dranginis, Flynn and West, Js.

      Argued March 25
    officially released August 12, 2003

      Kent Drager, senior assistant public defender, with whom were Jessica Grossarth and Elisa Heffeman, certified legal interns, for the appellant (defendant).

      Judith Rossi, executive assistant state’s attorney, with whom, on the brief, was Jonathan C. Benedict, state’s attorney, and Joseph J. Harry, senior assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Michael Jeffreys, appeals from the judgment of conviction, rendered following a jury trial, of possession of narcotics in violation of General Statutes § 21a-279 (a), possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a) and possession of narcotics with intent to sell within 1500 feet of a public housing project in violation of General Statutes § 21a-278a (b). The defendant claims that (1) the trial court improperly denied his motion to suppress evidence, (2) the court improperly denied his motion for a speedy trial and his motion to dismiss on speedy trial grounds, (3) there was insufficient evidence that he possessed narcotics with the intent to sell, (4) there was insufficient evidence that he was within 1500 feet of a public housing project, and (5) his rights against double jeopardy were violated when he was convicted and sentenced separately for possession of narcotics and possession of narcotics with intent to sell. We reverse in part and affirm in part the judgment of the trial court.

The jury could have found the following facts. On the morning of August 19,1999, a tactical narcotics team of the Bridgeport police department was conducting a drug surveillance operation in the vicinity of Trumbull Gardens, a public housing project. Two members of that tactical team, Officers Gregory Iamartino and Luis Batista, were conducting surveillance from the upper floor of a building in the area. The officers were equipped with binoculars and police radios, and they maintained radio contact with other officers constituting arrest teams. Those arrest teams were positioned outside the housing project and were poised to move into the project to effectuate the arrest of suspected drug dealers at the direction of the surveillance team.

Iamartino observed the defendant loitering within the apartment complex, near what appeared to be an abandoned building, and counting money. While the defendant was so engaged, a car entered the lot next to building, and the defendant approached the car and talked briefly with the driver. The defendant and the driver then walked to a relatively secluded area between two buildings where the driver handed the defendant some money. In exchange, the defendant gave the driver some small items that he retrieved from his pocket. The driver then returned to her car and departed while the defendant resumed his previous station and returned to counting his money.

A short while later, a second female approached the defendant and pointed out the presence of two nearby police cars. At the sight of an officer, the defendant began to leave the scene. At that point, Iamartino radioed his arrest team, which moved in and arrested the defendant. The arrest team searched the defendant’s person and discovered $55 in cash and two small plastic bags containing a white powder that subsequently tested positive for cocaine.

I

We first consider the defendant’s claim that the court improperly failed to suppress evidence. The defendant argues that the evidence seized from him at the time of his arrest should have been suppressed because that arrest was made without probable cause. “Whether the trial court properly found that the facts submitted were enough to support a finding of probable cause is a question of law. . . . The trial court’s determination on the issue, therefore, is subject to plenary review on appeal.” (Citation omitted.) State v. Clark, 255 Conn. 268, 279, 764 A.2d 1251 (2001).

“We note at the outset that a search conducted without a warrant issued upon probable cause is per se unreasonable, subject only to a few specifically established and well delineated exceptions. ... It is the state’s burden at trial to establish the exception. . . . If evidence obtained without a warrant was obtained as a result of a valid search and seizure incident to a lawful arrest, such evidence was not illegally obtained and is admissible.” (Citations omitted.) State v. Lizotte, 11 Conn. App. 11, 17, 525 A.2d 971, cert. denied, 204 Conn. 806, 528 A.2d 1154 (1987). The issue before us, then, is whether the search of the defendant was incident to a lawful, warrantless arrest.

A police officer is authorized to arrest, without a warrant, “any person who the officer has reasonable grounds to believe has committed or is committing a felony.” General Statutes § 54-lf (b); State v. Dennis, 189 Conn. 429, 431, 456 A.2d 333 (1983). The term “reasonable grounds” as used in the statute is synonymous with probable cause. State v. Dennis, supra, 431.

“[T]o establish probable cause, it is not necessary to produce a quantum of evidence necessary to convict. . . . Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony has been committed.” (Citations omitted.) State v. Cobuzzi, 161 Conn. 371, 376, 288 A.2d 439 (1971), cert. denied, 404 U.S. 1017, 92 S. Ct. 677, 30 L. Ed. 2d 664 (1972). “In dealing with probable cause ... as the very name implies, we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949). “Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false. Texas v. Brown, 460 U.S. 730, [742] 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983).” Three S. Development Co. v. Santore, 193 Conn. 174, 175, 474 A.2d 795 (1984).

In reviewing whether the court properly concluded that the search and seizure was valid under the exception to the warrant requirement for a search incident to a lawful arrest, it is first necessary to evaluate the validity of the arrest. General Statutes § 54-lf (b) authorizes a police officer to make a warrantless arrest based on probable cause. ****8 Under the federal and Connecticut constitutions, the court uses a totality of the circumstances test in determining whether probable cause existed. See Illinois v. Gates, 462 U.S. 213, 231-32, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); State v. Velasco, 248 Conn. 183, 191-92, 728 A.2d 493 (1999).

“In reviewing a trial court’s determination that probable cause to arrest existed, we consider whether [it is] legally and logically correct and whether [it] find[s] support in the facts set out in the memorandum of decision .... Because a trial court’s determination of the existence of probable cause implicates a constitutional claim, we must review the record carefully to ensure that its determination [is] supported by substantial evidence.” (Citation omitted; internal quotation marks omitted.) State v. Clark, supra, 255 Conn. 293-94. “In evaluating probable cause for a warrantless search, the court may consider all of the legally obtained facts available to a police officer, and all of the reasonable inferences that might be drawn therefrom in light of the officer’s training and experience.” (Emphasis in original; internal quotation marks omitted.) State v. Austin, 74 Conn. App. 802, 807-808, 813 A.2d 1060, cert. denied, 263 Conn. 910, 821 A.2d 766 (2003).

At the probable cause hearing, Iamartino testified that on the morning of August 19,1999, he was working as a surveillance officer assigned to Trumbull Gardens. Iamartino testified that once an area has been targeted for narcotics surveillance, the surveillance officer’s job is to find a location where he can view individuals involved in illegal activities, identify them and call in the identification to the arrest team, which would then apprehend the suspect. Iamartino further testified that while conducting surveillance at the housing complex, he observed the defendant counting cash while standing in front of an abandoned building. While the defendant was counting the money, a Mazda automobile entered die parking lot of the building and parked. The defendant ran to the car and spoke to the driver. The driver exited the vehicle, and the two individuals walked to an area between two buildings where the driver handed the defendant some cash. The defendant then removed some small items from his pocket and handed them to the female driver. Iamartino was unable to make out the color or any distinguishing characteristics of those items, other than that they were small. On the basis of his past experience as a narcotics officer and having been involved in previous surveillances, however, Iamartino believed that the small items that the defendant handed to the female were narcotics.

Once the female began to return to her car, Iamartino radioed the arrest team and provided a description of the female, her car and the direction in which she was traveling. Thereafter, the defendant resumed his position in front of the abandoned building and returned to counting his cash. Shortly after the defendant returned to his station in front of the building, an unidentified female approached him, spoke with him briefly and pointed to where a marked Bridgeport police cruiser and an unmarked police vehicle were parked on the street. Neither of those vehicles was part of Iamartino’s surveillance operation.

When he saw the police vehicles, the defendant began to walk away from the scene. At that point, Iamartino radioed the arrest team and gave instructions to apprehend the defendant. Iamartino made that call on the basis of his belief that the presence of the police vehicles would discourage the defendant from engaging in any further drug transactions.

Following, Iamartino’s testimony, defense counsel argued that Iamartino could not have been located in such an area as to have witnessed everything that he testified about. Because the exact location of Iamartino’s concealed surveillance was not disclosed for purposes of police safety, defense counsel argued in the alternative about what could have been observable to Iamartino. Specifically, counsel argued that the officer could have observed either the action on Reservoir Avenue or what took place in the area between the buildings, but not both from a single vantage point.

In its oral decision, the court flatly rejected the defendant’s argument, finding that the officer was capable of observing the salient action leading to the defendant’s arrest. The court concluded that “taking what I have to take in order to find probable cause for the arrest, I have no reason to disbelieve that the officer saw a white female pull her car into the parking lot ... . The defendant approached her. They walked off together. He clearly stated he saw the transaction, based on his experience, that he knew to be a drug transaction. ... I think that this suspicion was confirmed upon the arrest, which was well founded, based on his experience. ... I believe that there was probable cause for it, and that has been demonstrated by the police officer’s testimony, which I find to be credible, if a little sketchy.”

We note that the defendant’s argument on appeal is different from that raised during the suppression hearing. Rather than arguing that the officer could not have observed all that he claimed to have observed, the defendant now appears to concede that the officer could have observed what he claimed to have seen, but argues that the sum of those observations do not provide a sufficient basis to establish probable cause. Specifically, the defendant argues that probable cause was lacking because the officer could not identify sufficiently the items given by the defendant to establish that they were in fact narcotics. Although the present argument was not raised at the suppression hearing, review is warranted under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), as refined by State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), because the claim is of constitutional magnitude in that it alleges a violation of a fundamental right.

A survey of our case law in the area of probable cause for arrest arising in the context of narcotics surveillance supports the court’s conclusion that in the present case, there was probable cause to arrest the defendant. For instance, in State v. Austin, supra, 74 Conn. App. 802, we concluded that probable cause to arrest the defendant existed when the arresting officers, during a surveillance of a known high crime area, observed the defendant waiting on the street, an unknown individual approached him, they engaged in a brief conversation, and the individual gave the defendant some money in return for which he received from the defendant some small bags containing a white substance. Id., 808-809.

In the present case, the officer saw the defendant loitering and counting cash near an apparently abandoned building in a neighborhood targeted for drug surveillance. He saw a car approach, after which the driver and the defendant walked to a secluded area in an apparent effort to cloak the subsequent transaction, and saw the driver hand the defendant some money and the defendant hand her several small items. The driver then departed, and the defendant returned to his station near the abandoned building and resumed counting his money. When the defendant was alerted to the nearby presence of police, he began to depart. On the basis of the foregoing facts, we conclude that the facts and circumstances within the knowledge of the observing officer were sufficient in themselves to warrant a person of reasonable caution to believe a felony had been committed.

n

The defendant also claims that he was denied his constitutional right to a speedy trial, and that the court improperly denied his motion for a speedy trial and his motion to dismiss on speedy trial grounds. We disagree.

“General Statutes § 54-82m codifies a defendant’s constitutional right to a speedy trial and confers on the judges of the Superior Court the authority to make such rules as they deem necessary to establish a procedure for implementing that right. Pursuant to that authority, the judges adopted Practice Book §§ 43-39 through 43-41.” State v. Hampton, 66 Conn. App. 357, 366-67, 784 A.2d 444, cert. denied, 259 Conn. 901, 789 A.2d 992 (2001).

“The determination of whether a defendant has been denied his right to a speedy trial is a finding of fact, which will be reversed on appeal only if it is clearly erroneous. . . . The trial corut’s conclusions must stand unless they are legally and logically inconsistent with the facts. . . . Although the right to a speedy trial is fundamental, it is necessarily relative, since a requirement of unreasonable speed would have an adverse impact both on the accused and on society.” (Internal quotation marks omitted.) State v. Nicholson, 71 Conn. App. 585, 597, 803 A.2d 391, cert. denied, 261 Conn. 941, 808 A.2d 1134 (2002), quoting State v. Lacks, 58 Conn. App. 412, 417, 755 A.2d 254, cert. denied, 254 Conn. 919, 759 A.2d 1026 (2000).

The following additional facts are necessary for our resolution of the defendant’s claim. The defendant was arrested on August 19,1999, and was incarcerated pending trial on the basis of his inability to post a surety bond. On May 1, 2000, the incarcerated defendant filed a motion for a speedy trial. The court denied that motion on May 2, 2000.

In response to the defendant’s subsequent motion to dismiss on speedy trial grounds, the court prepared a chart outlining the pertinent dates on which action was taken with regard to the defendant’s case. The chart also indicated the excludable time periods relative to calculating the time within which the defendant’s trial was to commence for the propose of complying with the speedy trial rules. In that chart, the court noted the following. On August 20, 1999, the public defender representing the defendant requested a continuance of fourteen days. On September 3 and 24, 1999, the public defender requested further continuances of twenty-one and fourteen days, respectively. On October 22, 1999, following an offer from the state to resolve the case, the public defender requested a continuance of seventeen days to discuss that offer with the defendant. The defendant rejected that offer on November 8, 1999, and the case was assigned to the jury list. On December 17, 1999, the public defender requested a continuance of eighteen days to enable the defendant to discuss with his family another offer from the state. On January 4, 2000, the public defender requested a further continuance of seven days to speak with the prosecutor. Thereafter, the case proceeded to trial on June 27, 2000, without any further excludable time periods intervening. Thus, by the court’s reckoning, continuances requested by the defendant resulted in a total delay of ninety-one days, which period should not be included in the calculation for determining compliance with the speedy trial rules.

Practice Book § 43-40 (7) expressly provides for the exclusion of time resulting from a continuance granted by the judicial authority at the personal request of the defendant. The applicable language provides: “The following periods of time shall be excluded in computing the time within which the trial of a defendant charged by information with a criminal offense must commence pursuant to Section 43-39 ... (7) The period of delay resulting from a continuance granted by the judicial authority at the personal request of the defendant.” Practice Book § 43-40. The defendant argues that Practice Book § 43-40 (7) should be construed strictly so as to require that for any continuance to be excluded from the speedy trial calculation, the request for such continuance must be made by the defendant, himself, rather than by a representative of the defendant. We disagree that the language of the rule dictates such a narrow reading.

We note at the outset that Practice Book § 1-8 specifically dictates that the rules of practice are to be interpreted liberally to achieve their intended effect of facilitating the business of the courts and advancing justice. Although in the present case, the requests for continuances were made by defense counsel rather than by the defendant, himself, we find that distinction to be inconsequential. “Absent some indication to the contrary, a court is entitled to rely on counsel’s representations on behalf of his or her client.” State v. Stewart, 64 Conn. App. 340, 349-50, 780 A.2d 209, cert. denied, 258 Conn. 909, 782 A.2d 1250 (2001). The analysis in Stewart is particularly illuminating with respect to the distinction that the defendant currently advances on appeal. In Stewart, we recognized a distinction between matters of trial strategy, for which counsel has ultimate responsibility, and decisions concerning “ ‘inherently personal rights of fundamental importance to the defendant ....’” Id., 353. “It is . . . recognized that the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal .... However, [o]nce counsel is appointed, the day-to-day conduct of the defense rests with the attorney. He, not the client, has the immediate — and ultimate — responsibility of deciding if and when to object, which witnesses, if any to call, and what defenses to develop. Not only do these decisions rest with the attorney, but such decisions must, as a practical matter, be made without consulting the client.” (Citations omitted; internal quotation marks omitted.) Id., 352. We recognized, nevertheless, that even after a defendant has retained counsel, the defendant, rather than counsel, retains the ultimate responsibility and power to exercise certain inherently personal rights. We do not interpret that dichotomy to mean, however, that defense counsel can take no action with respect to those inherently personal rights; only that the ultimate authority for such action rests with the defendant and the defendant can, accordingly, override contrary wishes of his counsel. As with any right, however, the defendant is free to waive his right to a speedy trial if he so chooses.

Prior to the adoption of the specific rule of practice at issue in the present case, our Supreme Court recognized that the question of “[w]hether an accused has been denied his constitutional right to a speedy trial depends upon the facts in a particular case. The right may be waived when a defendant consents to delay .... Waiver may be implied where the defendant, in court, interposes no objections to a continuance.” (Emphasis added; internal quotation marks omitted.) State v. Hodge, 153 Conn. 564, 569-70, 219 A.2d 367 (1966). “No general principle can be stated in an effort to prescribe an exact period of time to satisfy the constitutional right to a speedy trial. Under the facts of this case, for instance, there were delays occasioned by the defendant and his counsel throughout the proceedings before the trial took place. The constitutional provision does not rule out accidental, necessary or reasonable delays but only those which are vexatious, capricious, arbitrary or oppressive.” Id., 570, citing Pollard v. United States, 352 U.S. 354, 361, 77 S. Ct. 481, 1 L. Ed. 2d 393 (1957).

Here, the delays were occasioned by the defendant’s counsel for the defendant’s advantage. The defendant took advantage of the numerous continuances requested on his behalf by counsel. The defendant cannot stand by mute while his counsel continues the proceedings on his behalf and then, when the speedy trial clock runs out, claim that counsel did not have the authority to request those continuances. Although mere silence is not enough from which to infer a waiver of a constitutional right, such a waiver may be found in the defendant’s course of conduct. See State v. Hodge, supra, 153 Conn. 569-70.

Absent any intervening, excludable delays, the defendant’s trial should have begun on April 20, 2000, eight months from the filing of the information. Taking into consideration the ninety-one days of delay occasioned by the defendant, however, the defendant’s trial need not have commenced until July 19, 2000. The defendant’s trial actually began on June 27,2000. Accordingly, we conclude that the defendant was not deprived of his right to a speedy trial.

Ill

The defendant also claims that there was insufficient evidence that he possessed narcotics with the intent to sell. Specifically, the defendant claims that the evidence was insufficient to establish that he possessed the drugs with the intent to sell, rather than merely for personal consumption. We disagree.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Green, 261 Conn. 653, 667, 804 A.2d 810 (2002).

We also note that “[w]here there is sufficient evidence to support a reasonable inference that the defendant intended to commit the crime charged, whether such an inference should be drawn is properly a question for the jury to decide.” State v. Morrill, 193 Conn. 602, 609, 478 A.2d 994 (1984).

“It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. . . . We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. ... It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ... In doing so, we keep in mind that [w]e have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” (Emphasis in original; internal quotation marks omitted.) State v. Barber, 64 Conn. App. 659, 664-65, 781 A.2d 464, cert. denied, 258 Conn. 925, 783 A.2d 1030 (2001).

“Proof of intent is usually established through circumstantial evidence, from which the jury may draw reasonable and logical inferences. . . . The quantity of narcotics found in the defendant’s possession [is] probative of whether the defendant intended to sell the drugs. . . . Also indicative of the defendant’s intent to sell narcotics is the manner in which the narcotics are packaged. . . . Evidence demonstrating that the defendant was present in a known drug trafficking area further suggests an intent to sell. ... In addition, the absence of drug paraphernalia indicates that the substance is not intended for personal use, but rather for sale to others.” (Citations omitted; internal quotation marks omitted.) Id., 667.

A brief recap of the facts in the record is sufficient to establish that there was sufficient evidence to support a finding that the defendant had the intent to sell the drugs found in his possession. At the outset, we note that the defendant does not dispute that he was in possession of illegal drugs. As far as the intent to sell those drugs is concerned, the following facts are relevant to our determination. First, the defendant was observed loitering in an area known for commercial drug activity. The defendant also was observed engaging in what an experienced narcotics officer believed to be a drug transaction. The defendant, rather than offering a nonincriminating explanation for his transaction with the driver of the Mazda, denied the very presence of the car and driver the officers observed in connection with the alleged drug sale. Finally, the drugs were packaged in separate, small plastic bags, and the defendant did not have any drug paraphernalia on his person.

We recognize that any one of those facts, standing alone, might not be sufficient to establish an intent to sell beyond a reasonable doubt. For instance, in those cases in which an intent to sell has been founded on the quantity of drugs found in the defendant’s possession, that quantity has generally been much greater than in the present case. See State v. Jefferson, 67 Conn. App. 249, 259-60, 786 A.2d 1189 (2001) (defendant constructively possessed seventy-eight glassine folds of cocaine and sixty-six glassine folds of heroin), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002); State v. Lee, 53 Conn. App. 690, 695-96, 734 A.2d 136 (1999) (defendant constructively possessed 172 bags of narcotics). The quantity of drugs is not, however, the sole dispositive factor. Rather, intent is determined from the cumulative weight of the circumstantial evidence, and the reasonable and logical inferences derived therefrom. See State v. Jefferson, supra, 258-59. Thus, we have held that there was sufficient, evidence to support a finding of intent to sell narcotics where the defendant was apprehended with a mere 2.2 grams of powder cocaine and $71 in cash. State v. Abreu, 34 Conn. App. 629, 631, 643 A.2d 871, cert. denied, 230 Conn. 915, 645 A.2d 1019 (1994).

We conclude that in the present case, the evidence was sufficient to permit the fact finder reasonably to find that the defendant possessed the intent to sell the drugs found in his possession.

IV

The defendant also claims that the evidence was insufficient to prove beyond a reasonable doubt that he was within 1500 feet of a housing project, as defined in § 21a-278a (b). We also disagree with that claim.

Although we find that his claim was unpreserved at trial, the defendant seeks review pursuant to State v. Golding, supra, 213 Conn. 239-40. “[A]ny defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding. Accordingly, we conclude that no practical reason exists to engage in a Golding analysis of a sufficiency of the evidence claim and, thus, review the challenge as we do any other properly preserved claim.” (Internal quotation marks omitted.) State v. Pranckus, 75 Conn. App. 80, 85, 815 A.2d 678, cert. denied, 263 Conn. 905, 819 A.2d 840 (2003).

In reviewing the defendant’s sufficiency of the evidence claim, we again apply our two part test. First, we construe the evidence in the light most favorable to sustaining the verdict, and then we determine whether, on all of the facts presented and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the evidence established guilt beyond a reasonable doubt. State v. Ward, 76 Conn. App. 779, 796, 821 A.2d 822, cert. denied, 264 Conn. 918, 826 A.2d 1160 (2003).

The sole evidence regarding whether the apartment complex was a “public housing project” pursuant to § 21a-278a (b) was the testimony of Officer Kenneth Rotunno. On direct examination, the prosecutor asked Rotunno whether Trumbull Gardens was a public housing project. Rotunno responded that it was. The defense did not make any objection, nor did it request an offer of proof as to Rotunno’s qualifications to testify that the subject apartment complex was a public housing project. The defense also did not cross-examine Rotunno as to his statement that the apartment complex was a public housing project.

After the state rested its case, the defendant requested a judgment of acquittal with regard to all three of the counts pending against him. The sole basis offered in support of that motion concerned the state’s alleged failure to establish any activity of a sale. The defendant argued in relevant part that “given the fact that [Iamartino] could not establish a sale, I do not think there is any indication in any evidence produced by either officer that would allow the jury to infer the intent to sell element necessary for both the [charge of] possession of narcotics with intent to sell as well as the [charge of] possession of narcotics with intent to sell within 1500 feet of a [public housing project].” The court denied the motion for a judgment of acquittal, stating that “the jury heard evidence from Officer Iamartino that, based on his experience, what he viewed was a narcotics transaction. He described a transaction and relied on his own experience, and I believe that the jury certainly has the right to infer, based on all of the surrounding circumstances plus his own experience, that a narcotics transaction did in fact take place. They have evidence before them that it took place at a housing project and that, further, that the narcotics were found on the defendant’s person.”

At the close of evidence, the court properly instructed the jury, inter alia, on the elements that the state was required to prove to support a conviction on the charge of possession of narcotics with intent to sell within 1500 feet of a public housing project. The court instructed the jury: “You must find that the defendant possessed the cocaine with the intent to sell it to another person, and that he did so within 1500 feet of the real property of a public housing project. A public housing project means dwelling accommodations operated as a state or a federally subsidized multifamily housing project by a housing authority, nonprofit corporation or municipal developer. If you find that the state has proven beyond a reasonable doubt the elements of this count, you will find the defendant guilty of this count, and I hope I have made it clear here. If you find the defendant guilty of the first count, possession of cocaine with the intent to sell and you go on to consider the second count, in order for you to find the defendant guilty of the second count, you must find that he not only possessed the cocaine and possessed it with the intent to sell, as alleged in the first count, but that he did so within 1500 feet of a public housing project as I have defined that to you.”

Following the court’s instruction to the jury, the jury interrupted its deliberations and sent the court a note with several questions. One of those questions involved the evidence introduced regarding whether the apartment complex was a public housing project. Specifically, the jury asked: “Is there any dispute about whether Trumbull Gardens is a public housing project?” Prior to the jury’s being called into the courtroom, defense counsel asked what the court would be stating in reply. The court told defense counsel that it intended to tell the jury that the only evidence with regard to that question came from Officer Rotunno and that the jurors could have that recorded testimony played back if they wanted. Once the jury had been summoned to the courtroom, the court stated with respect to the jury’s question, “Ladies and gentlemen, I can’t give you a simple yes or no because that’s for you to decide. But I can remind you that the only evidence that you heard about whether or not the area was a public housing project came from [the prosecutor’s] direct examination of Officer Rotunno. Now, if you recall that, you can answer the question for yourselves. If you don’t, we certainly can isolate it and play it back for you, but that was the only evidence that you did hear about that.”

In State v. Padua, 73 Conn. App. 386, 808 A.2d 361 (2002), cert. granted on other grounds, 262 Conn. 941, 815 A.2d 672 (2003), we held that the state’s proof was sufficient to establish that the subject apartment complex was a public housing project where the sole evidence to that effect consisted of the statements of the manager of the apartment complex and a police officer that the complex was a public housing project. Id., 409-10. In coming to that conclusion, we noted that the defendant (1) had not cross-examined on the issue of whether the apartment complex was a housing project, (2) did not take an exception to the portion of the jury charge defining the public housing project element of the charged crime and (3) did not request that the court add to its instruction the definition of a public housing project. Id., 410-12.

We conclude that the facts of Padua are sufficiently analogous to the present case to guide our disposition. Here, as in Padua, the defendant failed to object to a police officer’s testimony that the apartment complex was a public housing project and failed to cross-examine the witness on that issue. Also like the defendant in Padua, the defendant here failed to take an exception to any portion of the court’s charge to the jury on the issue. In the present case, the defendant also failed to take advantage of a second opportunity to raise an objection with respect to that issue when the jury inquired into that specific issue during its deliberations. Thus, the jury had before it an unchallenged affirmative statement that the apartment complex at issue was a public housing project.

On the basis of the foregoing, we conclude that the jury had sufficient evidence before it to conclude that the transaction occurred within 1500 feet of a public housing project as defined in § 21a-278a (b).

V

The defendant’s final claim on appeal is that his rights against double jeopardy were violated when he was convicted and sentenced separately for possession of narcotics and possession of narcotics with intent to sell. We agree.

“Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met. . . . The traditional test for determining whether two offenses are the same offense for double jeopardy purposes was set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). [Wjhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. ... In conducting this inquiry, we look only to the relevant statutes, the information, and the bill of particulars, not to the evidence presented at trial.” (Citations omitted; internal quotation marks omitted.) State v. Denson, 67 Conn. App. 803, 808-809, 789 A.2d 1075, cert. denied, 260 Conn. 915, 797 A.2d 514 (2002).

Pursuant to the first prong of the Blockburger test, the charged offenses in the state’s information arose out of the same act or transaction. In those counts, the state alleged that the crimes were committed at the same time and place: “on or about the 19th day of August, 1999, at approximately 9:50 a.m., in the vicinity of 410 Trumbull Avenue . . . .” The first prong of the Blockburger test is, therefore, satisfied. See State v. Porter, 76 Conn. App. 477, 484-85, 819 A.2d 909, cert. denied, 264 Conn. 910, 826 A.2d 181 (2003).

“Turning to the second prong of the Blockburger test, [t]he relevant inquiry then becomes whether each statutory violation requires proof of a fact which the other does not.” (Internal quotation marks omitted.) Id., 485. “It is clear . . . that if the two counts stand in the relationship of greater and lesser included offense, then [t]he greater offense is ... by definition the same for purposes of double jeopardy as any lesser offense included in it. . . . The test for determining whether one violation is a lesser included offense in another violation is whether it is possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser. If it is possible, then the lesser violation is not an included crime. ... In conducting this inquiry, we look only to the relevant statutes, the information, and the bill of particulars, not to the evidence presented at trial.” (Citations omitted; internal quotation marks omitted.) State v. Miranda, 260 Conn. 93, 125, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002).

In the present case, it is clear that it is not possible to commit the greater offense, in the manner described in the information, without having first committed the lesser offense and that the two offenses stand in the relationship of greater and lesser included offense. Specifically, the defendant could not have been guilty of violating § 21a-277 (a), possession of narcotics with intent to sell, without having first committed the crime of possession of narcotics in violation of § 2la-279 (a). Accordingly, we conclude that the conviction of those charges did violate the defendant’s right against double jeopardy.

“Having reached the conclusion that the defendant’s double jeopardy rights were violated, we must next determine the proper remedy and course of action for the trial court on remand. [T]he remedy in a case such as this is to combine the conviction on the lesser included offense with the conviction on the greater and to vacate the sentence on the lesser included offense.” (Internal quotation marks omitted.) State v. Porter, supra, 76 Conn. App. 486. Accordingly, the defendant’s conviction of possession of narcotics must be combined with his conviction of possession of narcotics with intent to sell, and his sentence for possession of narcotics must be vacated.

The judgment is reversed in part and the case is remanded with direction to combine the conviction of possession of narcotics with the conviction of possession of narcotics with intent to sell and to vacate the sentence on the conviction of possession of narcotics. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The state has conceded, and we agree, that the defendant’s conviction of both possession of narcotics and possession of narcotics with intent to sell violated the defendant’s double jeopardy rights.

       During the trial, that housing project was referred to, alternately, as “Trumbull Gardens,” “Beardsley Gardens” and “Trumbull Gardens, Beardsley Terrace.” It is clear from the context in which those designations are used, however, that all of those designations are meant to refer to the same housing project.

       General Statutes § 54-lf (b) provides: “Members of the Division of State Police within the Department of Public Safety or of any local police department or any chief inspector or inspector in the Division of Criminal Justice shall arrest, without previous complaint and warrant, any person who the officer has reasonable grounds to believe has committed or is committing a felony.”

       The police, however, were unable to apprehend the driver of the vehicle.

       Under State v. Golding, supra, 213 Conn. 239-40, a defendant can prevail on such a claim “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.”

       The defendant relies on three cases for the proposition that when the item exchanged cannot be identified by the observing officer, then, in the absence of other corroborating circumstances, the inference that the item exchanged was an illegal substance is not a reasonable one, but rather rests on speculation and conjecture. See State v. Davis, 38 Conn. App. 621, 624-28, 662 A.2d 812, cert. denied, 235 Conn. 919, 665 A.2d 907 (1995); State v. Arbelo, 37 Conn. App. 156, 158-62, 655 A.2d 263 (1995); State v. Mierez, 24 Conn. App. 543, 551-53, 590 A.2d 469, cert. denied, 219 Conn. 910, 911, 593 A.2d 136 (1991). Each of those cases, however, involved a sufficiency of the evidence claim in which the court was called on to determine whether the evidence was sufficient to establish the defendant’s guilt for the crime charged beyond a reasonable doubt. We disagree with the defendant that those cases establish a general rule that apolice officer must actually observe the drugs in question to establish the lesser quantum of probable cause to arrest.

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .”

       General Statutes § 54-82m provides: “In accordance with the provisions of section 51-14, the judges of the Superior Court shall make such rules as they deem necessary to provide a procedure to assure a speedy trial for any person charged with a criminal offense on or after July 1, 1985. Such rules shall provide that (1) in any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of a criminal offense shall commence within twelve months from the filing date of the information or indictment or from the date of the arrest, whichever is later, except that when such defendant is incarcerated in a correctional institution of this state pending such trial and is not subject to the provisions of section 54-82c, the trial of such defendant shall commence within eight months from the filing date of the information or indictment or from the date of arrest, whichever is later; and (2) if a defendant is not brought to trial within the time limit set forth in subdivision (1) and a trial is not commenced within thirty days of a motion for a speedy trial made by the defendant at any time after such time limit has passed, the information or indictment shall be dismissed. Such rules shall include provisions to identify periods of delay caused by the action of the defendant, or the defendant’s inability to stand trial, to be excluded in computing the time limits set forth in subdivision (1).”

       Practice Book § 43-41 provides: “If the defendant is not brought to trial within ihe applicable time limit set forth in Sections 43-39 and 43-40, and, absent good cause shown, a trial is not commenced within thirty days of the filing of a motion for speedy trial by the defendant at any time after such time limit has passed, the information shall be dismissed with prejudice, on motion of the defendant filed after the expiration of such thirty day period. For the purpose of this section, good cause consists of any one of the reasons for delay set forth in Section 43-40. When good cause for delay exists, the trial shall commence as soon as is reasonably possible. Failure of the defendant to file a motion to dismiss prior to the commencement of trial shall constitute a waiver of the right to dismissal under these rules.”

       Practice Book § 1-8 provides: “The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.”

       We note that although Officer Iamartino referred to the area being staked out as the Trumbull Gardens housing project, that reference can easily be construed as a mere colloquialism; he did not testify specifically that the apartment complex was a housing project.

       We note that the defendant’s actual argument stated that there was no evidence to support an inference of intent to seE within 1500 feet of a school. It is obvious from the context of the statement, however, that the defendant meant to refer to a pubEc housing project rather than a school.


text:
    TYLER E. LYMAN, INC. v. ALBERT C. LODRINI ET AL.
    (AC 23377)
    Lavery, C. J., and Sehaller and West, Js.
    Argued May 6
    officially released August 12, 2003

      James Colin Mulholland, for the appellant (defendant Virginia Lodrini).

      David P. Condon, for the appellee (plaintiff).
   Opinion

LAVERY, C. J.

The defendant Virginia Lodrini appeals from the judgment of the trial court, denying her motion to open the default judgment that was entered against her and to restore the case to the regular docket. On appeal, the defendant contends that the couit improperly (1) held that this court already had determined conclusively that the motion was not timely filed pursuant to General Statutes § 52-212 and (2) declined to afford her an evidentiary hearing on the motion to open the judgment, which motion was based on a claim of fraud on the court. We agree with the defendant and, accordingly, reverse the judgment of the trial court.

The facts were previously set forth in Tyler E. Lyman, Inc. v. Lodrini, 63 Conn. App. 739, 780 A.2d 932, cert. denied, 258 Conn. 902, 782 A.2d 137 (2001), and were repeated in our opinion with regard to Albert Lodrini. See Tyler E. Lyman, Inc. v. Lodrini, 78 Conn. App. 582, 828 A.2d 676 (2003). For the purposes of this opinion, we briefly summarize them as follows. On January 16, 1998, the plaintiff, Tyler E. Lyman, Inc., commenced this action against the defendants, Albert Lodrini and Virgima Lodrmi, to recover $73,500 in real estate commissions to which it believed it was entitled pursuant to the terms of a listing agreement between the parties. On February 19,1998, the court entered a default judgment against the defendants. On August 17, 1998, the defendants filed a motion to set aside the default judgment and to restore the case to the civil docket. The court denied that motion.

On appeal to this court, we held that the trial court was correct in finding that the motion to set aside the default judgment was untimely as to the defendant Virginia Lodrini. Tyler E. Lyman, Inc. v. Lodrini, supra, 63 Conn. App. 748. We therefore affirmed the judgment of the trial court as to the defendant. Id.

The defendant then filed a motion to open the default judgment and to restore the case to the regular docket, claiming that the underlying default judgment was obtained by the plaintiffs fraudulent nondisclosure of a material fact. The plaintiff opposed the defendant’s motion to open, arguing that this court’s prior ruling in the action conclusively determined that the motion was not timely pursuant to § 52-212 and, further, that the defendant could not show an act of fraudulent nondisclosure. The court denied the defendant’s motion without conducting a hearing at which the parties could present evidence on the fraud claim. The defendant then filed a motion to reargue, in which she argued, inter alia, that because the motion to open alleged fraud, which is a fact bound issue, the motion could not be decided without an evidentiary hearing. The court denied the motion to reargue. The defendant then appealed to this court.

“Our review of a court’s denial of a motion to open [based on fraud] is well settled. We do not undertake a plenary review of the merits of a decision of the trial court to grant or to or deny a motion to open a judgment. ... In an appeal from a denial of a motion to open a judgment, our review is limited to the issue of whether the trial court has acted unreasonably and in clear abuse of its discretion.” (Internal quotation marks omitted.) Mattson v. Mattson, 74 Conn. App. 242, 244, 811 A.2d 256 (2002).

“[C]ourts have intrinsic powers, independent of statutory provisions authorizing the opening of judgments, to vacate any judgment obtained by fraud, duress or mutual mistake.” (Internal quotation marks omitted.) In re Salvatore P., 74 Conn. App. 23, 27, 812 A.2d 70 (2002), cert. denied, 262 Conn. 934, 815 A.2d 135 (2003). “Allegations such as misrepresentation and fraud present issues of fact. . . . Moreover, [w]hether evidence supports a claim of fraudulent or negligent misrepresentation is a question of fact.” (Internal quotation marks omitted.) Jaser v. Fischer, 65 Conn. App. 349, 358, 783 A.2d 28 (2001). “When a court’s exercise of discretion depends on disputed factual issues, such as the existence of fraud, due process requires an evidentiary hearing.” Davis v. Fracasso, 59 Conn. App. 291, 299-300, 756 A.2d 325 (2000). The issue before us, therefore, is whether the court abused its discretion in refusing to open the judgment without holding an evidentiary hearing on the factual question raised by the defendant, namely, whether the underlying default judgment was obtained as a result of the plaintiffs fraudulent nondisclosure of a material fact. We conclude that under the circumstances of this case, the court abused its discretion in denying the defendant’s motion to open.

The record reflects that the defendant raised two arguments in support of her initial motion to set aside the default judgment. She first argued that she had not been aware of the action and that she had acted promptly once she learned of it. She further argued that the manner in which the plaintiff had obtained the judgment was “questionable” in that the court was not apprised fully of all material and relevant facts. The court denied the motion on the ground that it was untimely. See General Statutes § 52-212. The court did not mention the second ground raised by the defendant in the motion. As previously stated, we affirmed the judgment of the court as to the defendant.

As we stated, the defendant then filed a motion to open the default judgment and to restore the case to the regular docket. The defendant alleged that the default judgment was obtained as a result of the plaintiffs wilful and fraudulent failure to disclose to the court a material and relevant fact. Specifically, the defendant argued that the plaintiff never disclosed to the court, in any of its filings with the court, that the closing of the sale of the subject property took place in December, 1997, after the expiration of the two year limitation period set forth in the addendum to the parties’ listing agreement. The defendant further indicated that although she raised the claim that the judgment was obtained as a result of the fraudulent nondisclosure of a material fact in her prior motion to open the default judgment, the court denied the motion strictly on timeliness grounds and did not make any findings with regard to her claim of fraudulent nondisclosure. The defendant requested a hearing and indicated that testimony was to be presented on the motion. The court, however, simply denied the motion without holding a healing.

The defendant argues on appeal, as she did in the trial court, that no court has considered whether the default judgment was obtained as a result of fraud on the court. She argues that because judgments obtained by fraud may be challenged at any time; see Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980); and because her second motion specifically alleged fraudulent nondisclosure as the basis for the motion, the court abused its discretion in denying the motion without conducting an evidentiary hearing on the issue.

The plaintiff argues that the court previously denied the defendant’s fraud claim. According to the plaintiff, implicit in the court’s denial of the defendant’s first motion to set aside on timeliness grounds was a finding that the defendant had not proven her fraud claim. The plaintiff further argues that our affirmance of the court’s decision as to the defendant in Tyler E. Lyman, Inc. v. Lodrini, supra, 63 Conn. App. 739, conclusively establishes that the issue of fraudulent nondisclosure was litigated and lost in that case. We disagree.

It is clear to us that the defendant’s claim of fraudulent nondisclosure has yet to be addressed by either the trial court or this court. As we stated in Tyler E. Lyman, Inc. v. Lodrini, supra, 63 Conn. App. 745 n.6, the defendant did not specifically allege the applicability of the fraud exception as a ground for the late filing of her first motion to open. The court limited its opinion on that motion to the issue of timeliness under § 52-212. We, likewise, affirmed the judgment of the trial court as to the defendant solely on the timeliness issue and, therefore, did not address the fraud issue.

Because the court’s exercise of discretion in ruling on the motion to open was dependent on the disputed factual issue of fraud, due process required that the court hold an evidentiary hearing on that issue. See Davis v. Fracasso, supra, 59 Conn. App. 299-300. The court, therefore, abused its discretion in ruling on the matter without affording the parties the opportunity to present evidence with regard to the defendant’s fraud claim.

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

In this opinion the other judges concurred.

       The named defendant, Albert C. Lodrini, filed a separate appeal from the denial of his motion for an award of counsel fees pursuant to General Statutes § 42-150bb. In a separate opinion released on the same date, we reversed the judgment of the trial court, and remanded that matter for a new hearing. See Tyler E. Lyman, Inc. v. Lodrini, 78 Conn. App. 582, 828 A.2d 676 (2003). The only defendant in the present appeal is Virginia Lodrini.

       The court initially denied the motion without a hearing on October 8, 1998. The defendants filed a motion to reargue, which the court granted on October 28, 1998. A hearing took place on November 23, 1998. On March 16, 1999, the court, in an oral decision, denied the defendants’ motion to set aside the default judgment. See Tyler E. Lyman, Inc. v. Lodrini, supra, 63 Conn. App. 742-43.

       We held that the motion was timely as to Albert Lodrini, and we reversed the judgment as to him. Tyler E. Lyman, Inc. v. Lodrini, supra, 63 Conn. App. 748.

       In response to the defendant’s motion for articulation, the court issued the following articulation of its decision:
      “This court denied the motion to open the default filed by the defendant, Virginia Lodrini, dated May 6, 2002, on May 28, 2002.
      “The plaintiff objected on two grounds: (1) that the Appellate Court has already conclusively determined that the motion was not timely pursuant to General Statutes § 52-212; and (2) that the defendant cannot prove her claim of fraudulent nondisclosure.
      “The court agrees with the plaintiffs objection. For that reason it denied the defendant’s motion to reopen the default.”

       We stated in our opinion that “[although there are exceptions to the rule requiring a party who seeks to open a default judgment to do so within four months of entry of the judgment, [the defendant] did not specifically allege the applicability of any of those exceptions as grounds for her late filing of the motion to open the judgment.” Tyler E. Lyman, Inc. v. Lodrini, supra, 63 Conn. App. 745 n.6.

       Our conclusion that the court did not consider the fraud claim is supported by our remand in Tyler E. Lyman, Inc. v. Lodrini, supra, 63 Conn. App. 739, as to Albert Lodrini. In that opinion, we reversed the judgment as to Albert Lodrini, concluding that as to him, the original motion to set aside was timely. We declined to consider his second ground for appeal, namely, that the court improperly refused to address the defendants’ claim that the plaintiff had failed to disclose a material fact to the court. We stated, rather, that the court would have a full opportunity to hear and to address Albert Lodrini’s claims in that regard on remand of the case. Id., 740. Although the remand was limited to Albert Lodrini, it supports our conclusion that the issue has not been addressed by the trial court. We would not have remanded the case on that issue as to Albert Lodrini if, as the plaintiff argues, we believed that the court had implicitly decided the issue when it held that the motion was untimely.


author: DUPONT, J.

text:
    THOMAS C.C. SARGENT, TRUSTEE v. ANNE LENA SMITH
    (AC 22997)
    Dranginis, Bishop and Dupont, Js.
    Argued May 6
    officially released August 12, 2003

      Hále C. Sargent, for the appellant (plaintiff).

      Sabato P. Fiano, with whom was Stephen F. Donahue, for the appellee (defendant).
   Opinion

DUPONT, J.

In this action alleging breach of a lease agreement, the plaintiff, Thomas C.C. Sargent, trustee, appeals from the judgment of the trial court rendered in favor of the defendant, Anne Lena Smith. On appeal, the plaintiff claims that the court improperly accepted the conclusion of the attorney trial referee (referee) that (1) a 1996 mortgage foreclosure action against the plaintiff extinguished the defendant’s liability under her lease with him and (2) he failed to establish damages. We agree with the plaintiff and reverse the judgment of the trial court.

The referee found the following relevant facts. On August 12, 1988, the defendant entered into a written lease with the plaintiff for the rental of property he owned. In the lease, the defendant agreed to pay all “Real Estate Taxes,” which included “all taxes and assessments levied, assessed or imposed at any time by any governmental authority.” The defendant further agreed that it was a “ ‘net lease’ in that the intention [thereof] is that the rent and additional rents . . . shall be net to the landlord.”

Water charges from the Bridgeport water pollution control authority (authority) began to accrue on November 30,1988. At all times throughout the duration of the lease, the authority billed the plaintiff for water. On November 15,1991, the plaintiff refinanced the property. In doing so, the plaintiff personally guaranteed a note in favor of, and transferred a mortgage deed to, Gateway Bank (Gateway). He also executed an assignment of leases and an assignment of sales, proceeds, deposits and earnest money to Gateway.

Subsequently, the plaintiff defaulted on the note, and, thus, Praedium Chief, LLC, an assignee of the mortgage, initiated a foreclosure action in February, 1996. During the pendency of the foreclosure action, the court appointed a receiver of rents (receiver), who was directed by court order on May 12, 1997, to pay the authority the entire balance of the outstanding water charges, which totaled $40,881.37, and were paid, on June 5, 1997.

On August 25, 1997, the court rendered a judgment of strict foreclosure pursuant to a stipulation under which a subsequent assignee of the mortgage, Adare, LLC, waived the deficiency and agreed that the remaining funds held by the receiver, minus certain fees and costs, would be paid to the plaintiff, who agreed to an accelerated law day. Thereafter, the plaintiff initiated the present action against the defendant to recover the sum of $40,881.37, which the receiver was ordered to pay to cover the authority’s charges. Additional facts will be set forth as necessary.

On the basis of those facts, the referee concluded, and the court accepted the conclusion, that the plaintiff was not entitled to recover from the defendant the amount of the payment to the authority because the foreclosure action had extinguished all obligations under the lease and the plaintiff had failed to prove he would have ultimately been entitled to the money.

We review the referee’s factual findings under the clearly erroneous standard. Mitchell v. Guardian Sys tems, Inc., 72 Conn. App. 158, 162, 804 A.2d 1004, cert. denied, 262 Conn. 903, 810 A.2d 269 (2002). “[B]ecause the attorney trial referee does not have the powers of a court and is simply a fact finder, [a]ny legal conclusions reached by an attorney trial referee have no conclusive effect. . . . [T]he legal opinions of [an attorney trial referee], like those of the parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment. ” (Internal quotation marks omitted.) Alliance Partners, Inc. v. Oxford Health Plans, Inc., 263 Conn. 191, 202, 819 A.2d 227 (2003).

“The trial court, as the reviewing authority, may render whatever judgment appropriately follows, as a matter of law, from the facts found by the attorney [referee]. . . . Where legal conclusions are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts found by the [attorney referee].” (Internal quotation marks omitted.) Mitchell v. Guardian Systems, Inc., supra, 72 Conn. App. 163.

Essentially, the primary issue raised in this appeal is what effect, if any, the plaintiffs mortgage, the foreclosure action and the subsequent judgment of strict foreclosure had on the lease agreement between the plaintiff and the defendant. That is a question of law over which our review is plenary. See Short v. Connecticut Bank & Trust Co., 60 Conn. App. 362, 367, 759 A.2d 129 (2000).

To decide that issue, we must first ascertain what the lease agreement between the parties obligated them to do. “[A] lease is like any other contract . . . .” Putnam Park Associates v. Fahnestock & Co., 73 Conn. App. 1, 6, 807 A.2d 991 (2002). “Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.” (Internal quotation marks omitted.) Id., 8. “[W]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” (Internal quotation marks omitted.) Levine v. Massey, 232 Conn. 272, 277-78, 654 A.2d 737 (1995).

Paragraph nine of the lease between the parties, in part, states that “[u]tilities and services furnished to the demised premises for the benefit of the [defendant] shall be provided and paid for as follows: water by the [defendant] . . . .” The attached rider further states in paragraph two that “[i]n addition to the rent and additional rent, [the defendant] agrees to pay . . . the Real Estate Taxes assessed and billed against the leased premises,” which includes “all taxes and assessments levied, assessed or imposed at any time by any governmental authority upon or against the Premises . . . .” Additionally, the rider states that “[t]he [defendant] agrees that this is a ‘net lease’ and that the intention hereof is that the rent and additional rent herein specified shall be net to the [plaintiff] without any offset deductions or costs . . . .”

Therefore, as the referee concluded, which conclusion the court adopted, and the parties agree, the clear and unambiguous language of the lease requires that the defendant pay the water and sewage charges assessed by the city of Bridgeport. Having concluded that it was the defendant’s obligation to pay the authority’s charges under the lease, we next consider what effect the mortgage had on that contractual obligation.

Connecticut follows the “title theoiy” of mortgages, which provides that on the execution of a mortgage on real property, the mortgagee holds legal title and the mortgagor holds equitable title to the property. See Barclays Bank of New York v. Ivler, 20 Conn. App. 163, 166, 565 A.2d 252, cert. denied, 213 Conn. 809, 568 A.2d 792 (1989); see also Stein v. Hillebrand, 240 Conn. 35, 43 n.7, 688 A.2d 1317 (1997); Conference Center Ltd. v. TRC, 189 Conn. 212, 218-19, 455 A.2d 857 (1983). As the holder of equitable title, also called the equity of redemption, the mortgagor has the right to redeem the legal title on the performance of certain conditions contained within the mortgage instrument. Barclays Bank of New York v. Ivler, supra, 166. The mortgagor continues to be regarded as the owner of the property during the term of the mortgage. Desiderio v. Iadonisi, 115 Conn. 652, 654, 163 A. 254 (1932).

Thus, in this case, on the signing of the mortgage deed, the plaintiff held equitable title and Gateway held legal title to the property. The plaintiff continued to hold equitable title and the right of redemption until the judgment of strict foreclosure on September 25, 1996, which cut off his redemption rights and vested unconditional title in Adare, LLC, a successor mortgagee. See Barclays Bank of New York v. Ivler, supra, 20 Conn. App. 166.

When the plaintiff mortgaged his premises to Gateway, he executed an assignment of leases and rents as additional security for the mortgage, which assignment was exercisable on his default. That assignment, however, had no effect on the defendant’s lease obligations to the plaintiff or on his right to enforce the lease.

“[Liability between the landlord and parties with a leasehold interest is predicated on privity of estate or privity of contract. 1 M. Friedman, [Leases (3d Ed. 1990)] § 7.501a, p. 350.” Gateway Co. v. DiNoia, 232 Conn. 223, 234, 654 A.2d 342 (1995). “Privity of contract rests on agreement, whereas privity of estate rests on an interest in the leased premises.” (Internal quotation marks omitted.) Id. In this case, the defendant’s possession of the premises created privity of estate with the plaintiff and her execution of the lease, which included an undertaking to pay the authority’s charges, created privity of contract between her and the plaintiff. See id.

Thus, the question becomes whether the foreclosure action, the appointment of a receiver of rents or the eventual judgment of strict foreclosure destroyed either the privity of estate or privity of contract between the plaintiff and the defendant so as to extinguish his breach of lease action.

In this case, the initiation of the foreclosure action did not relieve the defendant of her obligations under the lease. See generally Conference Center Ltd. v. TRC, supra, 189 Conn. 218-28. The defendant continued to pay rent, and the plaintiff and mortgagee continued to allow her to remain in possession of the premises.

The appointment of the receiver of rents and the court’s order for the receiver to pay the authority’s charges also did not extinguish either the defendant’s obligations under, or the plaintiffs benefit of, the lease. “When a receiver is appointed in a foreclosure action to take charge of the property, he holds it as an arm of the court and his possession is not that of the mortgagee.” Desiderio v. Iadonisi, supra, 115 Conn. 655; see also New Haven Savings Bank v. General Finance & Mortgage Co., 174 Conn. 268, 270, 386 A.2d 230 (1978). “[T]he mortgagee has no claim upon the income and profit in [the receiver’s] hands as such . . . they still belong to the mortgagor . . . .” (Internal quotation marks omitted.) New Haven Savings Bank v. General Finance & Mortgage Co., supra, 270.

The funds held in receivership, however, are for the protection of the mortgagee’s rights, and, thus, a “court has the power by its orders to make such application of them as justice and equity require and it may order their disposition in such a way as to aid in discharging the obligations of the mortgagor to the mortgagee.” Desiderio v. Iadonisi, supra, 115 Conn. 655. Therefore, “it lies in the power of the court ... to direct the receiver ... to discharge taxes due upon the property, whether those taxes accrued before or after his appointment.” Id., 656. That was done in the foreclosure action when the court ordered the receiver to pay the authority’s charges.

Because the funds in the hands of the receiver still belonged to the plaintiff; see New Haven Savings Bank v. General Finance & Mortgage Co., supra, 174 Conn. 270; the effect of the court’s order was that the plaintiff had paid the authority’s charges, which the defendant contractually was obligated to pay by virtue of her lease with him. That obligation to pay the charges accrued prior to the judgment of strict foreclosure, which, contrary to the defendant’s argument, is the time at which the lease between the plaintiff and the defendant was extinguished. See First Federal Bank, FSB v. Whitney Development Corp., 237 Conn. 679, 689-90, 677 A.2d 1363 (1996).

The referee found, and the court accepted, that “the plaintiff failed to prove by a preponderance of the evidence that the moneys were held for the benefit of the plaintiff or that the plaintiff would have ultimately been entitled to the moneys.” We conclude that this “finding” was based on an improper application of the law.

First, as previously discussed, the money in the hands of the rent receiver belonged to the. plaintiff as the mortgagor in the foreclosure action. Although, the money was held to protect the mortgagee’s interest, any payout was applied to the plaintiffs obligations to his mortgagee. See Desiderio v. Iadonisi, supra, 115 Conn. 655. Thus, the payout from the receiver was equivalent to the plaintiff himself making the payment. The defendant’s argument that the plaintiff was not damaged because the money ultimately would have been paid to the mortgagee in the foreclosure judgment is to no avail. First, the mortgagee waived any claim to a deficiency, and the plaintiff received the remaining funds in the account. Second, the mortgagee is not a party to this action, and any right it may have in the $40,881.37 payout is not at issue here. Last, the plaintiff paid $40,881.37 in authority charges, via the rent receiver, for the benefit of the defendant, who was obligated to pay it by the terms of the lease.

Therefore, we conclude that neither the mortgage, nor the institution of the foreclosure action, nor the judgment of strict foreclosure extinguished the defendant’s obligations under the lease to pay the authority’s charges and that the defendant’s failure to pay the charges damaged the plaintiff.

The judgment is reversed and the case is remanded with direction to render judgment for the plaintiff in the amount of $40,881.37.

In this opinion the other judges concurred.

       The assignment of leases was exercisable, at the mortgagee’s option, on the default of the mortgagor.

       The mortgage later was assigned to Adare, LLC, which was substituted as the plaintiff in the foreclosure action.

       The defendant, as a lessee, was named as a defendant in the foreclosure action.

       In its foreclosure judgment, the court valued the property at $300,000 and the plaintiffs debt at $404,815.19.

       Although the referee did not specifically find, testimony established that the fees and costs totaled approximately $7500, and the remaining funds distributed to the plaintiff totaled approximately $29,000.

       The defendant argues that the deficiency would not have been waived if the $40,881.37 payout was not made. We cannot assess that argument because it is speculative. The waiver of the deficiency was part of a settlement, and we have no way of knowing whether the terms of the settlement would have been different had the authority’s charges been paid not from the receiver’s funds, but by the defendant.