text:
    State of Connecticut v. Omar Lopez
    (11458)
    O’Connell, Landau and Schaller, Js.

      Submitted on briefs December 13,1994
    decision released April 11, 1995

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

      Eugene Callahan, state’s attorney, and Judith Rossi and James Bernardi, assistant state’s attorneys, filed a brief for the appellee (state).
   Landau, J.

This matter is currently before us on remand from our Supreme Court. State v. Lopez, 231 Conn. 909, 648 A.2d 158 (1994). The defendant appealed from a judgment of conviction, rendered after a jury trial, of eighteen counts of the sale of narcotics in violation of General Statutes § 21a-277 (a), one count as a principal and seventeen counts as an accessory pursuant to General Statutes § 53a-8. The defendant claimed that the trial court improperly (1) failed to be present in the courtroom during the voir dire process, (2) denied his motion for judgment of acquittal as to three counts of accessorial liability on the ground that the evidence was insufficient to sustain the verdict, and (3) instructed the jury as to reasonable doubt and the presumption of innocence. When this matter was first before us, we reversed the judgment of the trial court based on State v. Patterson, 31 Conn. App. 278, 624 A.2d 1146 (1993), rev’d, 230 Conn. 385, 645 A.2d 535 (1994). Upon the granting of certification, the Supreme Court remanded the case to this court with direction to reconsider the defendant’s claims in light of State v. Patterson, 230 Conn. 385, 645 A.2d 535 (1994).

“The facts of this case are as follows. In October, 1990, the statewide narcotics task force and the Stamford police department began an undercover investigation of the defendant, who was suspected of the illegal sale of narcotics in the city of Stamford. On several occasions, Detective Carlos Cotto, wearing a body microphone, posed undercover as a drug purchaser. Over a six month period, the investigation team recorded eighteen separate transactions between Cotto and the defendant. When possible, a surveillance team videotaped the drug transactions between the defendant and Cotto.” State v. Lopez, 34 Conn. App. 717, 718, 643 A.2d 305 (1994).

The defendant was represented by counsel and elected to be tried by a jury. During the voir dire, which took four days, the trial judge was not present in the courtroom. At no time during the proceedings did the defendant object to the judge’s absence. Rather, it is apparent from the record that both parties acquiesced to the judge’s absence. Only when the assistance of the judge was required did the judge return to the courtroom. On April 2,1992, the jury convicted the defendant of eighteen counts of the sale of narcotics.

I

The defendant first claims that the trial judge improperly failed to be present in the courtroom during the voir dire process. In State v. Patterson, supra, 31 Conn. App. 303, we held that “the trial judge’s absence from the courtroom during voir dire in a criminal trial is per se reversible error” and cannot be waived. This was the state of the law when the defendant filed his appellate brief on August 2,1993. On July 26,1994, the state Supreme Court reversed our decision, holding that “even assuming that the trial judge must be present in the courtroom throughout the voir dire of a criminal trial, the defendant can waive such a requirement.” State v. Patterson, supra, 230 Conn. 390.

As to what constitutes a valid waiver in cases where the judge is not present during the voir dire process in a criminal trial, the court stated that “[t]he waiver can be made by counsel, and it will ordinarily be inferred from the absence of an objection.” Id., 396. In Patterson, the court found that the presence of certain facts indicated a valid waiver. The defendant was represented by counsel and had prior experience with the criminal justice system. The defendant had acquiesced each time the judge left the courtroom and had requested the court’s presence only when a judicial determination needed to be made. Further, the defendant did not object to the judge’s absence during the voir dire. Id.

The issue thus becomes whether the defendant waived the right to have the judge present during the voir dire proceedings. The record indicates a valid waiver in this case. The defendant was represented by counsel and did not object to the judge’s absence. The only time the judge’s presence was requested by the defendant was when a judicial determination needed to be made. Accordingly, we conclude that the trial court acted properly.

II

The defendant next claims that the trial court’s jury instructions improperly diluted the state’s burden of proving guilt beyond a reasonable doubt and undermined the presumption of innocence. Specifically, the defendant challenges the following statements made by the trial court in its charge: (1) “A reasonable doubt is a doubt for which a valid reason can be assigned”; (2) “If you can in reason reconcile all the facts which you find proved with any reasonable theory consistent with the innocence of the accused, you cannot find him guilty”; (3) “A reasonable doubt is not a doubt which is raised by someone simply for the sake of raising doubts, nor is it a doubt suggested by the ingenuity of counsel or any of the jurors which is not justified by the evidence or lack of evidence”; (4) “It is the kind of doubt which in the affairs which concern you in every day life, you pay some heed or attention to”; (5) “The law is made to protect society and innocent persons, not to protect the guilty ones”; and (6) “[P]eople look to you as sworn officers of the court, to deal fairly, firmly, honestly and justly, as strong-minded men and women, with the interest placed in your hands as an arm of the court, to aid in upholding the law of the land and render a verdict of guilty if the facts and law require such a verdict.”

The defendant concedes that this issue was not properly preserved for appeal and now seeks review pursuant to the Evans-Golding doctrine, which requires that “(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 appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant to the particular circumstances.” State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

The defendant’s claim fails to satisfy the third prong of Golding. The court’s instructions are the same or similar to jury instructions that have been approved by this court and by the Supreme Court. See, e.g., State v. Stanley, 223 Conn. 674, 695-96, 613 A.2d 788 (1992); State v. Thomas, 214 Conn. 118, 119-20, 570 A.2d 1123 (1990); State v. Payne, 31 Conn. App. 370, 379-80, 625 A.2d 231, cert. denied, 227 Conn. 901, 630 A.2d 73 (1993); State v. Leonard, 31 Conn. App. 178, 199-201, 623 A.2d 1052 (1993); State v. Johnson, 29 Conn. App. 584, 590, 617 A.2d 174 (1992), appeal dismissed, 228 Conn. 59, 634 A.2d 293 (1993) (certification improvidently granted). Thus, when viewed in the context of the entire charge, the challenged instructions did not lessen the state’s burden to prove the defendant guilty beyond a reasonable doubt and did not undermine the presumption of innocence.

We cannot conclude, therefore, that the alleged constitutional violation clearly exists and clearly deprived the defendant of his right to a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-277 (a) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

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

       We do not address the defendant’s second claim, regarding the sufficiency of the evidence as to three counts, in that we have decided it previously. State v. Lopez, 34 Conn. App. 717, 723, 643 A.2d 305 (1994).

       As we stated in State v. Cox, 36 Conn. App. 463, 466, 652 A.2d 520 (1994), this decision is not to be read too broadly as its precedent applies only to criminal cases in which the judge was absent from voir dire, pursuant to a valid waiver, prior to July 26,1994. “Despite its ruling on this court’s Patterson decision, the Supreme Court, acting under its supervisory power, declared ‘that henceforth the trial judge must continuously be present to oversee voir dire in a criminal case. Because this requirement is imposed by [the Supreme Court] pursuant to its supervisory power, the requirement cannot be waived by either party in future criminal cases.’ State v. Patterson, supra, 230 Conn. 400.” State v. Cox, supra, 466.

       The defendant submitted a request to charge on reasonable doubt that stated: “A reasonable doubt is a doubt for which a valid reason can be assigned. It is a doubt which is something more than a guess or surmise. It is not conjecture or a fanciful doubt. A reasonable doubt is not a doubt which is raised by someone simply for the sake of raising doubts. Nor is it a doubt suggested by the ingenuity of counsel or any of the jurors, which is not justified by the evidence or lack of evidence.”


source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    Dorothy M. Baker v. David P. Cordisco
    (12612)
    Dupont, C. J., and Foti and Heiman, Js.

      Argued January 17
    decision released April 11, 1995

      Laurence V. Parnoff, for the appellant (plaintiff).

      Michael S. Lynch, for the appellee (defendant).
   Heiman, J.

In this negligence action, the plaintiff appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant. On appeal, the plaintiff claims that the trial court improperly (1) allowed the defendant to withdraw his third party complaint and file special defenses against the plaintiff, (2) admitted hearsay evidence that did not comply with the business entry exception enumerated in General Statutes § 52-180, (3) permitted a witness to testify to the ultimate issue that was to be decided by the jury, and (4) permitted a verdict that was contrary to the physical evidence and without factual or legal basis. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On December 30, 1986, at approximately 2:44 p.m., the plaintiff was a passenger in a motor vehicle driven by her husband, Francis Baker. The Bakers were traveling east on Barnum Avenue in Stratford. Barnum Avenue is a public highway with two lanes for eastbound traffic and two lanes for westbound traffic. The eastbound and westbound lanes are divided by a double yellow line.

The defendant, David P. Cordisco, was also traveling east on Barnum Avenue. He was positioned in the left lane of Barnum Avenue closest to the double yellow dividing lines. At the intersection of Barnum Avenue and Nichols and King Streets, the defendant stopped his vehicle at a red light. As he waited for the signal to change, he observed the vehicle in which the plaintiff was a passenger in the right lane of Barnum Avenue, the lane farthest from the dividing lines. He also noted that the vehicle occupied by the plaintiff was positioned slightly in front of his van.

Both vehicles again proceeded east when the light turned green. Each vehicle continued to occupy the lane that it had been in at the traffic light. When the two vehicles approached the driveway of a Finast supermarket located on the north side of Barnum Avenue, the vehicle in which the plaintiff was a passenger suddenly cut across the path of the defendant’s vehicle in an apparent attempt to make a left turn into the supermarket parking lot. The two vehicles collided in the lane occupied by the defendant.

After the collision, the vehicle in which the plaintiff was a passenger continued across the westbound lanes and came to a stop in the Finast parking lot. The defendant’s van stopped in the eastbound lane nearest the center line with its left wheels close to or on the center line. The defendant then proceeded into the Finast parking lot to speak with the Bakers. Francis Baker admitted to the defendant that he did not understand how he could have been “so stupid” as to have turned as he had.

At the close of evidence, the case was submitted to the jury with interrogatories. The jury found that the defendant was not negligent and that Francis Baker, the operator of the vehicle in which the plaintiff was a passenger, was 100 percent negligent. The verdict was accepted and recorded and judgment rendered thereon. This appeal followed.

I

The plaintiff first asserts that the trial court improperly allowed the defendant to withdraw his third party complaint against Francis Baker and to file a special defense against the plaintiff. We disagree.

Certain additional facts are necessary for the proper resolution of this issue. On February 22, 1990, the defendant moved for permission to implead Francis Baker. See Practice Book § 117. The motion was granted and the defendant instituted a third party action against Baker, alleging that the plaintiff’s injuríes were caused by Baker’s negligence. The defendant sought contribution from Baker pursuant to General Statutes § 52-572h (h). Baker never filed an answer to this third party complaint. The defendant did not move to default Baker for failure to plead.

On October 11, 1990, the plaintiff filed an amended complaint to correct the date on which the accident was alleged to have occurred. The defendant did not file an answer to this amended complaint. On May 4, 1993, the date that jury selection commenced, the pleadings were not closed with respect to the principal action itself or as to the third party complaint.

On May 5,1993, counsel for the defendant informed the trial court that his review of the record reflected that no answer or special defense had been filed in response to the plaintiff’s amended complaint. Counsel also stated that he had prepared and was ready to file an answer and special defense and that he was also prepared to withdraw the third party complaint against Francis Baker, subject to acceptance of his pleadings. Counsel for the defendant asserted that his claims of negligence in the special defense were reiterations of the claims of negligence in the third party complaint against Francis Baker.

The plaintiff objected to the answer and special defense as well as to the withdrawal of the third party complaint. The plaintiff argued that she had relied on the third party defendant to prove his freedom from negligence. Thus, she posited that he would have taken the lead in proving the negligence of the defendant. She claimed that permitting the defendant to withdraw the third party complaint placed entirely on her what she perceived to be as a shared burden of proof.

The trial court informed the plaintiff that she continued to have the burden of establishing the negligence of the defendant and that that burden was not changed by the withdrawal of the third party complaint. The trial court also pointed out that the defendant had a right to proffer evidence that the proximate cause of the accident was the negligent conduct of a nonparty. Because the pleadings were not closed, the trial court permitted the defendant to file the answer and special defense to the amended complaint. The defendant was also permitted to withdraw the third party complaint against Francis Baker. The plaintiff was then ordered to file a reply to the defendant’s special defense.

A

We turn first to the plaintiff’s assertion that the trial court acted improperly in allowing the defendant to withdraw his third party complaint against Francis Baker.

A plaintiff has the right to withdraw a pending action prior to the commencement of a hearing on the merits. General Statutes § 52-80. “The right of a plaintiff to withdraw his action before a hearing on the merits, as allowed by § 52-80, is absolute and unconditional.” (Internal quotation marks omitted.) H.G. Bass Associates, Inc. v. Ethan Allen, Inc., 26 Conn. App. 426, 431, 601 A.2d 1040 (1992), quoting Lucas v. St. Patrick’s Roman Catholic Church Corp., 123 Conn. 166, 170, 193 A.2d 204 (1937). Such a withdrawal “does not need the permission of the court for cause shown if a hearing on an issue of fact has not commenced.” Matey v. Waterbury, 24 Conn. App. 93, 96-97, 585 A.2d 1260, cert. denied, 218 Conn. 908, 588 A.2d 1383 (1991).

The trial court was therefore powerless to prevent the defendant, as a third party plaintiff, from exercising his right to withdraw the third party complaint. See General Statutes § 52-80. The trial court cannot be faulted for obeying the mandate of the statute.

B

The plaintiff next claims that the trial court improperly allowed the defendant to file a special defense on the eve of trial and, in turn, ordered the plaintiff to respond to that defense. In support of this claim, the plaintiff asserts that the actions of the trial court deprived her of constitutional due process and the fifteen day filing period provided by the rules of practice for filing responsive pleadings. We again disagree.

The record reflects that the plaintiff failed to assert before the trial court either the due process argument that she now asserts or her claim of a violation of the rules of practice. “We have not yet reached a jurisprudential stage where we require trial judges to be mentally telepathic. Thus, we have consistently declined to review claims based on a ground different from that raised in the trial court.” State v. Ulen, 31 Conn. App. 20, 29, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993). To review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than a trial by ambuscade of the trial judge. State v. Robinson, 227 Conn. 711, 741, 631 A.2d 288 (1993). The plaintiff has not provided us with a reason to depart from this standard. Because the grounds now asserted were not raised before the trial court, we will not afford review on these unpreserved grounds.

The plaintiff did, however, assert before the trial court an argument that she would be prejudiced if the defendant were allowed to amend the pleadings by filing a special defense that claimed that the accident was caused by the sole negligence of Francis Baker. The plaintiff asserted that she might be required to seek a continuance or further discovery or to take other action in order to prevent surprise and prejudice.

The granting or denial of a motion to amend the pleadings is a matter within the trial court’s discretion. Neiditz v. Housing Authority, 231 Conn. 598, 601, 651 A.2d 1295 (1995); S.M.S. Textile Mills, Inc. v. Brown, Jacobson, Tillinghast, Lahan & King, P.C., 32 Conn. App. 786, 794, 631 A.2d 340, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993). “In the interest of justice courts are liberal in permitting amendments; unless there is a sound reason, refusal to allow an amendment is an abuse of discretion. Tedesco v. Julius C. Pagano, Inc., [182 Conn. 339, 341, 438 A.2d 95 (1980)]. The trial court is in the best position to assess the burden which an amendment would impose on the opposing party in light of the facts of the particular case. The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial. Wallingford v. Glen Valley Associates, Inc., [190 Conn. 158, 161-62, 459 A.2d 525 (1983)], quoting Tedesco v. Julius C. Pagano, Inc., supra, 341-42. Wassell v. Hamblin, 196 Conn. 463, 466-67, 493 A.2d 870 (1985).” (Internal quotation marks omitted.) Esposito v. Presnick, 15 Conn. App. 654, 660, 546 A.2d 899, cert. denied, 209 Conn. 819, 551 A.2d 755 (1988).

At the time the amendment was permitted, the plaintiff did not seek a continuance or make a showing of prejudice. Her assertion that the amendment cast a burden on her different from that she had before the amendment is incorrect. The plaintiff always bore the burden of proving the defendant negligent and the defendant had the right to show that some other person contributed to or was the sole proximate cause of the collision and the resultant damages. See General Statutes § 52-572h.

We will not interfere with the trial court’s exercise of discretion in permitting an amendment unless an abuse of discretion is clearly evident. See Neiditz v. Housing Authority, supra, 231 Conn. 601. Under the circumstances here, there was no abuse of the trial court’s discretion.

II

The plaintiff next asserts that the trial court improperly admitted into evidence the second or back page of a police report over her objection that it contained hearsay and did not comply with the business entry exception enumerated in General Statutes § 52-180. We decline to review this claim as it was not properly preserved at trial.

The following facts are necessary to the resolution of this issue. At trial, Officer David Mullane testified that he was dispatched to investigate the accident involving the plaintiff and the defendant. Because he had no recollection of this particular accident, the accident report that he prepared contemporaneously with his investigation at the scene was admitted as an exhibit. The plaintiff objected to the admission of the back page of the report that contained a diagram drawn by Mullane as well as statements of Francis Baker. The plaintiff objected to the admission of Baker’s statements on the basis that the defendant had failed to comply with discovery and had not disclosed the existence of those statements. The plaintiff did not object on the ground now alleged on appeal, that the statements on the back page of the police report failed to meet the requirements of the business entries exception to the hearsay rule.

We will not review a claim that is not distinctly raised at trial. Practice Book §§ 288 and 4185; Skrzypiec v. Noonan, 228 Conn. 1, 13, 633 A.2d 716 (1993); Brown v. Brown, 36 Conn. App. 597, 599, 652 A.2d 527 (1995). “A claim is distinctly raised if it is so stated as to bring to the attention of the court the precise matter on which its decision is being asked. . . . A claim briefly suggested is not distinctly raised.” (Citations omitted; internal quotation marks omitted.) Solomon v. Hall-Brooke Foundation, Inc., 30 Conn. App. 129, 134, 619 A.2d 863 (1993).

The plaintiffs failure to raise at trial the claim she now raises on appeal deprived the trial court of the opportunity to address the issue adequately while there was time to correct it and denied this court an adequate record to review the claim. See Misiurka v. Maple Hill Farms, Inc., 15 Conn. App. 381, 385-86, 544 A.2d 673, cert. denied, 209 Conn. 813, 550 A.2d 1083 (1988). As we have already stated in part I of this opinion, “[t]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) Brown v. Brown, supra, 36 Conn. App. 599, quoting State v. Robinson, supra, 227 Conn. 741.

The plaintiffs objection did not distinctly raise the claim before the trial court that the statements on the back page did not comply with the requirements of a business entry. See Practice Book § 288. The trial court, therefore, did not address the claim now before us and the record is inadequate for our review. We will not usurp the trial court by reviewing this claim.

Ill

The plaintiff next claims that the trial court improperly permitted Mullane to “state opinions without proper qualifications and to state conclusions which were exclusively the province of the jury over the plaintiff's objection and exception.” We disagree.

Although it is certainly true that expert witnesses may not ordinarily express opinions on the ultimate issue of fact to be determined by the jury; State v. Butler, 36 Conn. App. 525, 530, 651 A.2d 1306 (1995); our review of the transcripts reveals that no such testimony was permitted. Mullane testified that it was his general practice to prepare a diagram of the scene of the incident if the accounts of both drivers are consistent. He further testified that he prepared a diagram of the accident in this case because the drivers did not disagree about how the accident had occurred. The diagram he prepared showed the defendant in the left lane of Barnum Avenue and the plaintiff in the right. The diagram indicated that the plaintiff took a left turn from the right lane. The plaintiff objected that the explanation about the diagram was a conclusion. The trial court overruled the plaintiffs objection, stating that the witness’ testimony was for the purposes of explaining the diagram and did not represent his conclusions regarding the accident.

Despite the plaintiff’s claims, Mullane did not place his imprimatur on any particular version of the cause of the accident and did not form any of his own conclusions on that issue. The plaintiff’s argument, therefore, is immaterial and we need not address this claim.

IV

Finally, the plaintiff asserts that the verdict was contrary to the physical evidence and without factual or legal basis. In support of this claim, the plaintiff points to alleged contradictions in the evidence of the investigating officer and posits from those alleged contradictions that “the verdict was the result of the officer’s conclusion diagram providing a visual picture of the defendant’s self-serving statement.”

Evidence is sufficient to sustain a verdict where it induces in the mind of the jury that it is more probable than otherwise that the fact in issue is true. Dacey v. Connecticut Bar Assn., 170 Conn. 520, 534, 368 A.2d 125 (1976). “It is the province of the trier of fact to weigh the evidence presented and determine the credibility and effect to be given the evidence. . . . On appellate review, therefore, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled.” (Citations omitted.) Swift & Co. v. Rexton, Inc., 187 Conn. 540, 543, 447 A.2d 9 (1982); see also Speed v. DeLibero, 23 Conn. App. 437, 440, 580 A.2d 1242, rev’d on other grounds, 215 Conn. 308, 575 A.2d 1021 (1990). In analyzing a sufficiency of the evidence claim, the test that we employ is whether, on the basis of the evidence before the jury, a reasonable and properly motivated jury could return the verdict that it did. Bielaska v. Waterford, 196 Conn. 151, 156, 491 A.2d 1071 (1985).

“ ‘Where there is conflicting evidence, as claimed by the [plaintiff], we do not retry the facts or pass on the credibility of the witnesses.’ ” Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 404, 461 A.2d 422 (1983). The probative force of conflicting evidence is for the trier to determine. Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 257, 524 A.2d 610 (1987); Shippan Point Assn., Inc. v. McManus, 34 Conn. App. 209, 215, 641 A.2d 144, cert. denied, 229 Conn. 923, 642 A.2d 1215 (1994). We rely on “the good sense and judgment of American juries to weigh evidence with some element of untrustworthiness since such evidence ‘is customarily grist for the jury mill.’ ” State v. Fullwood, 193 Conn. 238, 254, 476 A.2d 550 (1984); State v. Rivera, 32 Conn. App. 193, 202, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993).

We have already set out in detail the facts that the jury could reasonably have found. On the basis of the evidence before it, the jury could reasonably have concluded, as it did, that the sole proximate cause of the collision was the negligent conduct of the operator of the vehicle in which the plaintiff was a passenger and against whom she elected not to bring an action.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 117 provides in pertinent part: “A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiffs claim against Mm. Such a motion may be filed at any time before trial and such permission may be granted by the court if, in its discretion, it deems that the granting of the motion will not unduly delay the trial of the action or work an injustice upon the plaintiff or the party sought to be impleaded. . . .”

       General Statutes § 52-80 provides in pertinent part: “The plaintiff may withdraw any action so returned to and entered in the docket of any court, before the commencement of a hearing on the merits thereof. After the commencement of a hearing on an issue of fact in any such action, the plaintiff may withdraw such action, or any other party thereto may withdraw any cross complaint or counterclaim filed therein by him, only by leave of court for cause shown.”

       Although the plaintiff fails to direct us to the sections of the Practice Book that she claims were violated by the order of the trial court, we assume that she is referring to Practice Book §§ 114 and 177.
      Practice Book § 114 provides in pertinent part: “Commencing on the return day of the writ, summons and complaint in civil actions, pleadings, including motions and requests addressed to the pleadings, shall first advance within thirty days from the return day, and any subsequent pleadings, motions and requests shall advance at least one step within each successive period of fifteen days from the preceding pleading or the filing of the decision of the court thereon if one is required . . . .”
      Practice Book § 177 provides in pertinent part: “When any pleading is amended the adverse party may plead thereto within the time provided by Sec. 114 or, if he has already pleaded, alter his pleading, if he so desires, within ten days after such amendment or such other time as these rules, or the court, may prescribe, and thereafter pleadings shall advance in the time provided by that section. . . .”

       We note that the plaintiff did not seek review of the two unpreserved claims under the rubric of plain error review. Since the parties have neither briefed nor argued plain error, we will not afford such review. See Lynch v. Granby Holdings, Inc., 230 Conn. 95, 99, 644 A.2d 325 (1994).

       We note that the record reflects that the trial court quite properly informed counsel that it would meet those requests when and if made. The record reflects that no requests were made of the trial court for a continuance or further discovery.

       General Statutes § 52-180 (a) provides: “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.”

       The plaintiff objected as follows: “With the diagram and the statement, if Your Honor please? Up until Friday, Mr. Baker was a party and anything he might have said might have been admissible. As of the time this case began, the case against Mr. Baker was withdrawn after jury selection was started, and we’re now dealing with a special defense making him a volunteer at best, certainly under no duty. But more importantly, Your Honor, October 19,1992, while I was still representing only [the plaintiff] on the complaint and there was another attorney representing Mr. Baker on the third party complaint, I asked whether or not there were any statements of parties that the defendant had any knowledge of. And his answer to that question, 13B, was ‘No,’ there were no statements.”
      After the police report was admitted and the plaintiff’s objection overruled, the plaintiff stated: “If Your Hoiior please, I take exception to the admission of this exhibit, and I renew my objection to any of this information being submitted to the jury based on the fact that up until jury selection and after jury selection had commenced, the defendant has not complied with the rules of discovery, updated his compliance with discovery through Friday when he spoke with this officer to indicate that there were statements of anybody. He specifically denied that there were statements [by any] party. And Mr. Baker was a party in this case up until last Monday or Tuesday.”

       The plaintiffs objection is as follows:
      “[The Plaintiff]: Your Honor, I object to this. It’s — you know, first of all, when we were told about this it was supposed to be for credibility. Now we find out from the officer what he’s got there is a conclusion, his conclusion. It’s a summary of what everybody told him. He’s testified that he spoke with the other investigating officer. It’s clear it cannot be admissible on the grounds that it was submitted or offered. . . . I’m going to object, Your Honor. He’s already testified that was a conclusion that he drew from the information that he received. He wasn’t there; he doesn’t know what happened.
      “The Court: Well, no, I know. But that’s not what he’s being asked. He’s being asked to explain what the diagram shows. That’s not something he necessarily has to have past knowledge of, if you understand what I’m saying.
      “[The Plaintiff]: What it shows, Your Honor, is his conclusions, and that’s what I object to. There are conclusions here, that is the ultimate test for the jury to make a determination, and I think he’s—
      “The Court: You’re quite right. You’re quite right. But it’s relevant evidence. He can explain the diagram. I think that’s all [the defendant is] asking him to do is explain the diagram.
      “[The Defendant]: That’s all I’m asking him to do.
      “The Court: Right. He’s not being asked to give conclusions. He’s being asked to explain what this diagram shows.
      “[The Plaintiff]: No, if Your Honor please. He’s already testified that his diagram was a conclusion that he drew from the information that he received from both parties, any witnesses that he may have spoken to, and the other police officer at the scene.
      “The Court: Well, the diagram is a very limited diagram as you know.
      “[The Plaintiff]: I know.
      “The Court: So he can explain it. The question is a fair question. I mean, what does this show? I mean, there’s notations on there that arguably, that what they mean is not necessarily clear from someone just looking at the document. So, you can object to a specific question, but the general concept of explaining his diagram, as long as it doesn’t get into some kind of accident reconstruction, it is permissible.”
      The plaintiff excepted to the ruling of the trial court.


author: Landau, J.

text:
    First Constitution Bank v. Joseph M. Caldrello et al.
    (11807)
    Dupont, C. J., and O’Connell and Landau, Js.
    Argued December 7, 1994
    decision released April 11, 1995

      Richard D. Haviland, for the appellants (named defendant et al.).

      Gail S. Kosto, for the appellee (plaintiff).
   Landau, J.

The defendants Joseph M. Caldrello and Sandra V. Caldrello (hereafter the defendants) appeal from the judgment of strict foreclosure rendered by the trial court as to property they owned. They claim that the trial court (1) improperly denied Joseph M. Caldrello, appearing pro se, the opportunity to argue at the trial, (2) improperly failed to admit certain bank documents into evidence, (3) improperly failed to permit the defendants’ counsel to testify on behalf of the defendants despite having permitted the plaintiff’s counsel to testify, and (4) allowed the appearance of an unfair trial. Because we find the third issue disposi: tive, we need not address the remaining three.

The following facts are not in dispute. In November, 1988, the defendants executed a note and mortgage to First Constitution Bank (bank). The bank commenced an action to foreclose the mortgage in September, 1989, alleging that the note had not been paid according to its terms. The defendants filed an answer and counterclaim, in which they denied that the note was in default and alleged an improper setoff by the bank against certain certificates of deposit owned by the defendants.

The trial court heard the foreclosure action on September 3, 4 and 8, 1992. Appearing in court for the defendants on September 3, were Philip Mancini, an attorney, Joseph M. Caldrello, appearing pro se, and Gregory McCauley, an attorney appearing pro hac vice. The proceedings on that day consisted solely of preliminary matters. When the actual trial commenced on September 4, Mancini was not present. It was agreed that Joseph M. Caldrello and McCauley would represent the defendants at the subsequent proceedings.

During the trial, the defendants attempted repeatedly to introduce documents allegedly prepared by the bank, which purportedly showed that the mortgage was current and that the debt owed by the defendants was less than the amount claimed by the bank. The bank objected to each offer on the ground that the documents had not been produced in discovery. The court, relying on Practice Book § 232, ruled each time that the documents were inadmissible, but offered the defendants the opportunity to prove their claim that Mancini had. given the documents to the bank. On this point, the court heard the testimony of Richard Lathrop, a lay witness who stated that he saw Mancini produce the documents. The court also heard Joseph M. Caldrello’s testimony as to when and where various documents were produced. When the defendants attempted to call Mancini, however, the court refused to permit his testimony, noting that he could not be a counsel of record and a witness. In an oral offer of proof, McCauley stated that Mancini would have testified that all of the documents, with one exception, had been given to the bank long before the trial.

Mancini is not automatically barred from testifying in the case because of his status as a legal advocate for the defendants. “An attorney is not disqualified or rendered incompetent to testify when he has participated in the trial of a case, even though testifying as a witness under those circumstances may be violative of the rules of professional conduct and may subject him to disciplinary action. State v. Blake, 157 Conn. 99, 102, 249 A.2d 232 (1968).” Puglio v. Puglio, 18 Conn. App. 606, 608, 559 A.2d 1159 (1989). Although an attorney may be in violation of rule 3.7 of the Rules of Professional Conduct, “[t]his does not disqualify or render incompetent, as a witness, an attorney who has participated in a trial, and it is error to refuse to permit him to offer himself as a witness. Lebowitz v. McPike, 151 Conn. 566, 570, 201 A.2d 469 [1964]; Miller v. Urban, 123 Conn. 331, 334, 195 A. 193 [1937]; Sengenbush v. Edgerton, 120 Conn. 367, 370, 180 A. 694 [1935]; Erwin M. Jennings Co. v. DiGenova, 107 Conn. 491, 497, 141 A. 866 [1928].” State v. Blake, supra, 102. Furthermore, when Mancini’s testimony was offered, it was arguable whether he was representing the defendants since it had been previously agreed that McCauley and Joseph M. Caldrello, pro se, would represent the defendants.

The bank concedes that it was improper for the trial court not to permit Mancini to testify. It argues, however, that the error was harmless. We disagree. In ruling on the admissibility of the documents, the trial court relied on representations made by the bank’s counsel that the documents had not been timely produced by Mancini. Although the trial court held a hearing on the admissibility of the documents and heard from a lay witness that Mancini produced the documents, it failed to hear from the person whose responsibility it was to comply with the discovery requests. We cannot say that the result would not have been different had Mancini, the attorney who allegedly produced the documents, been permitted to testify.

Because the ruling of the trial court was improper and not harmless, we must reverse the judgment of the trial court.

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

In this opinion the other judges concurred.

       While not involved in this appeal, the following parties were also defendants in the underlying action: Donald M. Toresco; Tim Broyles, doing business as Concrete Concepts; Bank of New Haven; Connecticut National Bank; Allen Electric, Inc.; United Builder’s Supply, Inc.; Pioneer Credit Corporation; Denrich Leasing Corporation; Master Lease Corporation; Bell Atlantic Tricon Leasing Corporation; K.L.C., Inc., doing business as Keystone Leasing; Soneco Service, Inc.; Bondi & Lenzini Enterprises, Inc.; Norman Wood General Contractors, Inc.; Fleet Credit Corporation; Day Publishing Company, Inc.; New England Capital Corporation; Transamerica Automotive Finance Corporation; Laurence J. Patton; Midatlantic Commercial Leasing Corporation; Capital Resource Leasing, Inc., doing business as Total Leasing, Inc.; Automatic Solar Covers, Inc., doing business as Poolsavers; Monsignor Paul J. St. Onge; Victor Cartier; Cathy Cartier; and Carl Sherman.

       In December, 1992, First Constitution Bank failed and the Federal Deposit Insurance Corporation became its receiver.

       In November, 1991, the defendants filed a request for leave to amend their counterclaim, seeking to add lender liability counts arising from the alleged mishandling by the bank of the defendants’ personal accounts. McCauley, a Pennsylvania attorney, was admitted pro hac vice in this matter to represent the defendants for the purpose of handling the lender liability issue only. Although the request for leave to amend had been denied on November 6,1991, McCauley was present on September 3, due to a pending motion to reargue the defendants’ request for leave to amend the counterclaim. Also, as a nonattomey pro se, Joseph M. Caldrello could represent only himself and not Sandra Caldrello. See General Statutes § 51-88.

       The documents, all admitted for identification purposes only, were: (1) an escrow analysis dated August 17, 1992; (2) a statement of mortgage account dated December 31, 1990; (3) a statement of mortgage account dated October 24, 1991; and (4) an escrow analysis dated September 11, 1991.

       Practice Book § 232 provides: “If, subsequent to compliance with any request or order for discovery and prior to or during trial, a party discovers additional or new material or information previously requested and ordered subject to discovery or inspection or discovers that the prior compliance was totally or partially incorrect or, though correct when made, is no longer true and the circumstances are such that a failure to amend the compliance is in substance a knowing concealment, he shall promptly notify the other party, or his attorney, and file and serve in accordance with Sec. 120 a supplemental or corrected compliance.”

       The court did allow counsel for the bank to represent that Mancini had not given her the documents in question.

       Rule 3.7 of the Rules of Professional Conduct provides in pertinent part: “(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
      “(1) The testimony relates to an uncontested issue;
      “(2) The testimony relates to the nature and value of legal services rendered in the case; or
      “(3) Disqualification of the lawyer would work substantial hardship on the client. ...”

       Both parties argue at some length about the fairness of the trial court’s permitting the bank’s counsel to “testify” while not permitting the defendants’ counsel to do so. The attorney for the bank did not testify, but rather made certain representations in response to a question directed to her by the trial court.


author: Freedman, J.

text:
    State of Connecticut v. Michael Cutro
    (13315)
    Landau, Spear and Freedman, Js.

      Argued January 6
    decision released April 18, 1995

      Joseph E. Dimyan, with whom, on the brief, was Melinda S. Monson, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and Catherine C. Brannelly, assistant state’s attorney, for the appellee (state).
   Freedman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of public indecency in violation of General Statutes § SSa-lSb, and risk of injury to a child in violation of General Statutes § 53-21. The defendant argues that the state failed to establish beyond a reasonable doubt the necessary elements and the required nexus between his actions and the victim in support of a conviction for each of these crimes. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 11, 1992, at approximately 9:15 p.m., S, then seventeen years of age, and her sister, D, the victim, then fourteen years of age, went shopping at the Danbury Fair Mall. They parked near the merchandise pickup area at Sears and entered the mall through Sears. Upon entering Sears, S noticed a man at the snack counter whom she recognized. D also recognized the man, later identified as the defendant, from prior trips to the mall. The defendant said “Hello ladies” to S and D. S and D were in the mall approximately ten minutes and left when the mall closed at 9:30 p.m. The defendant walked behind S and D and passed them as they exited the mall. He also turned around and looked at them.

Once S was in her car in the parking lot, she observed the defendant in a car that was parked three cars away from hers. The area where her car was parked had lights all around and, because the parking lot is on a hill, S was able to look down on the defendant. From inside her car, S noticed the defendant sitting inside his car, shaking back and forth as if having a seizure. His hand was shaking below his chest. D also observed the defendant moving back and forth with his head back and his mouth open, but she did not know what he was doing. S observed the defendant for approximately ten seconds. She then got out of her car and walked back toward the mall to get security because she “knew what he was doing.” D remained in the car and waited while S went to get security.

S told Richard DeMerell, a security supervisor at the mall, what she had seen and DeMerell walked to the defendant’s car. When DeMerell approached the vehicle, he observed a male who was “nude from the waist to the knees and was masturbating.” The motor was running, the parking lights were on and the instrument panel in the defendant’s car was fully illuminated. DeMerell instructed the defendant to turn off the ignition, drop the keys out the window, pull up his pants and put his hands on the steering wheel. The defendant stated that what he was doing was natural and that he did not see anything wrong with his actions. DeMerell then called the Danbury police for assistance and the defendant was subsequently placed under arrest by Officer Anthony Maher.

At the close of the state’s case, the defendant made an oral motion for a directed verdict of not guilty as to both counts, which the court denied. The next day, prior to closing arguments, the defendant filed a motion for a directed verdict of not guilty. The court reserved judgment on the motion and, after counsel made closing arguments, denied the motion. The jury returned a verdict of guilty of public indecency in violation of § 53a-186 (a) (2) and risk of injury to a child in violation of § 53-21. Following the return of the verdict, the defendant proffered an oral motion for a judgment of acquittal notwithstanding the verdict, which the court denied. The court subsequently denied the defendant’s written motion to set aside the verdict and for a directed verdict of not guilty.

I

The defendant first argues that the state failed to establish beyond a reasonable doubt the necessary elements and the required nexus between his actions and the victim in support of a conviction for the crime of risk of injury to a child. “In reviewing a sufficiency of the evidence claim, this court first reviews the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury.” (Internal quotation marks omitted.) State v. Szymkiewicz, 36 Conn. App. 625, 627, 652 A.2d 523 (1995). “The court then determines whether, on the facts thus established and the inferences drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.” Id.

Pursuant to General Statutes § 53-21, “[a]ny person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child” shall be punished. The statute thus proscribes two general types of behavior: “(1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor’s moral or physical welfare . . . and (2) acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being.” (Citation omitted.) State v. Dennis, 150 Conn. 245, 250,188 A.2d 65 (1963); State v. Erzen, 29 Conn. App. 591, 594, 617 A.2d 177 (1992). The state concedes that there was no evidence to support a conviction based on the second section of the statute; we will therefore limit our discussion to the first section of the statute, under which “it is not necessary, nor have the courts required, that a defendant touch any part of the victim’s body. . . . Rather, the creation of a prohibited situation is sufficient to breach the statute.” State v. Erzen, supra, 594-95.

The defendant argues that he did not wilfully or unlawfully cause or permit a child under the age of sixteen to be placed in a situation where her morals were likely to be impaired. In State v. Torrice, 20 Conn. App. 75, 81, 564 A.2d 330, cert. denied, 213 Conn. 809, 568 A.2d 794 (1989), we stated that the court properly instructed the jury, pursuant to § 53-21, that to convict the defendant it must find “that he acted wilfully and ‘that he either intended the resulting injury to the victim, or he knew that the injury would occur, or that his conduct was of such a character , that it demonstrated a reckless disregard of the consequences.’ ” Although Torrice involved behavior prohibited by the second section of § 53-21, we find that the standard evinced therein is applicable to an alleged violation of the first section of the statute. Applying this standard, we conclude, on the basis of the evidence presented at trial, that the jury reasonably could have found that the defendant acted wilfully and that his conduct was of such a character that it demonstrated a reckless disregard of the consequences.

The defendant also argues, citing State v. Tirado, 21 Conn. App. 449, 574 A.2d 252, cert. denied, 215 Conn. 816, 576 A.2d 449 (1990), and State v. Erzen, supra, 29 Conn. App. 591, that the fact pattern in this case does not fall within the purview of the circumstances contemplated by § 53-21 because those cases require that he exhibit a pattern of conduct before he may be convicted of violating § 53-21. We disagree with the defendant’s interpretation of Tirado and Erzen, and conclude that, under the facts and circumstances of this case, the defendant created a situation likely to impair the morals of a child.

In State v. Tirado, supra, 21 Conn. App. 455, the defendant was charged under the first part of § 53-21 with “wilfully or unlawfully causing] or permitting] ‘a child under the age of sixteen to be placed in such a situation that her morals were likely to be impaired by [the defendant’s] kissing the victim, exposing himself in front of the victim and requesting her to engage in sexual contact.’ ” The defendant in Tirado argued that his conviction could not stand because there was evidence of only one incident of kissing, and, pursuant to State v. Schriver, 207 Conn. 456, 542 A.2d 686 (1988), kissing alone cannot constitute a violation of § 53-21. State v. Tirado, supra, 454. In rejecting this argument, we stated: “It is clear that the allegation that the defendant kissed the victim was not meant to provide the sole basis for a conviction under the first count, but was intended to be part of the state’s allegation that there was a pattern of sexual conduct. That pattern also included the defendant exposing himself to the victim and requesting her to engage in sexual contact with him.” Id., 455. In State v. Erzen, supra, 29 Conn. App. 591, the defendant lured two children into a secluded area, asked them to unzip his trousers, exposed himself to them, and touched his penis in front of them. We stated in Erzen that “[i]t is this pattern of lewd and sexual conduct that clearly demonstrates that the defendant violated § 53-21.” Id., 596.

Although the defendants in Tirado and Erzen embarked on patterns of lewd and sexual conduct, those cases do not stand for the proposition that such a pattern was required in order to sustain a conviction under § 53-21. Moreover, the defendant in Erzen argued that his actions were isolated in nature and therefore were not likely to impair the morals of the minor victims. In Erzen, we rejected the defendant’s claim, declining “to set out a bright line rule requiring a specific or minimum number of occurrences before a person can be charged with impairing the morals of a minor. In a particular situation, one instance is enough.” Id., 597. We conclude, under the circumstances of this case, that the defendant created a situation that is prohibited by § 53-21.

Finally, the defendant argues that the minor victim’s morals were not likely to be impaired given that she did not know what the defendant was doing. We disagree.

In State v. Laracuente, 205 Conn. 515, 521, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988), the defendant argued that the evidence was insufficient to support his conviction under the second section of § 53-21 because the child was asleep when the act was committed. The Supreme Court rejected this argument, concluding that “[i]t was not necessary for the state to prove the child’s awareness of the act.” Id., 523. As we stated in State v. Sullivan, 11 Conn. App. 80, 91, 525 A.2d 1353 (1987), “[t]he gist of General Statutes § 53-21 is not conduct which results in the actual impairment of morals. . . . Rather, the gist is conduct which is likely to impair the morals of a child under the age of sixteen.” (Citations omitted; emphasis added.) See also State v. Apostle, 8 Conn. App. 216, 243, 512 A.2d 947 (1986). We therefore reject the defendant’s argument that the victim’s morals were not likely to be impaired because she did not know what the defendant was doing.

Construing the evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have found that the defendant was guilty beyond a reasonable doubt of risk of injury to a child in violation of § 53-21.

II

The defendant next argues that the state failed to establish beyond a reasonable doubt the necessary elements and the required nexus in support of a conviction for the crime of public indecency. As with the risk of injury claim, we will review the evidence presented at trial, construed in the light most favorable to sustaining the facts found by the jury, and then determine whether the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. See State v. Szymkiewicz, supra, 36 Conn. App. 627.

Pursuant to General Statutes § 53a-186 (a) (2), a person is guilty of public indecency when he performs, in a public place, “a lewd exposure of the body with intent to arouse or to satisfy the sexual desire of the person.” The statute goes on to define “public place” as “any place where the conduct may reasonably be expected to be viewed by others.” The defendant argues that he did not perform the alleged act in a “public place” as that term is defined in the statute. The defendant bases this argument on several factors. He argues that the alleged incident occurred between 9:15 and 9:30 p.m. and that the parking lot was lighted by a street lamp. He also relies on the fact that there were no other people around and that three cars were between the victim’s car and his car, and that the victim was viewing the defendant’s actions through seven car windows.

We conclude, however, that the conduct at issue occurred in a “public place” as that term is used in the statute. In State v. Vega, 38 Conn. Sup. 313, 314, 444 A.2d 927 (1982), after the victim got out of her vehicle, she heard a loud knocking and observed the defendant standing in the window of his apartment, which was about seven feet above ground level. The defendant was naked and visible from the knees up, holding his penis and smiling. The defendant argued that no evidence was adduced at trial to show that the window in which he was standing was a “public place” under the statute. The court rejected the defendant’s argument, stating that “the jury had before it sufficient evidence from which it could conclude that the defendant’s apartment window was a place where the defendant’s conduct could reasonably be expected to be viewed by others.” Id., 315. Similarly, in the present case, the jury had before it sufficient evidence from which it could con-elude that the defendant’s car, parked in the parking lot of the Danbury Fair Mall, was a place where his conduct could reasonably be expected to be viewed by others. We, therefore, cannot say that the jury improperly concluded that the defendant’s conduct occurred in a “public place” under the statute.

Finally, the defendant argues that he did not perform a lewd exposure of his body with the intent to arouse or to satisfy his sexual desire. Specifically, he argues that the evidence did not establish that he acted wantonly or in reckless disregard of the rights of others. A showing of wantonness or reckless disregard, while required under General Statutes (Rev. to 1968) § 53-220, the predecessor to § 53a-186, is not required under § 53a-186. What is required is that the defendant had the “intent to arouse or to satisfy the sexual desire of the [defendant].” As the court stated in State v. Vega, supra, 38 Conn. Sup. 315, “[i]ntent is a mental process which ordinarily may be proven only by circumstantial evidence. . . . The intent of the actor is a question for the trier of fact, and the conclusions of a jury must stand unless they are unreasonable.” (Citation omitted.) In the present case, we cannot say that the jury’s conclusion that the defendant intended to arouse or satisfy his sexual desire was unreasonable.

Construing the evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have found that the defendant was guilty beyond a reasonable doubt of public indecency in violation of § 53a-186 (a) (2).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-186 (a) provides in pertinent part: “A person is guilty of public indecency when he performs any of the following acts in a public place . . . (2) a lewd exposure of the body with intent to arouse or to satisfy the sexual desire of the person .... For the purposes of this section, ‘public place’ means any place where the conduct may reasonably be expected to be viewed by others.”

         General Statutes § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       In accordance with General Statutes § 54-86e, the names of the minor victim and her sister will not be used.

       In its brief, the state concedes that although there was insufficient evidence to support a conviction based on the second section of the statute, the trial court improperly instructed on both alternatives. The state argues, however, that since the defendant requested the charge, and neither excepted to the charge as given nor raised a challenge to the charge on appeal, this claim should not be reviewed by this court. In his reply brief, the defendant agrees that this claim should not be reviewed by this court, not because he did not preserve it, but because the evidence was insufficient to convict him of the offense charged, regardless of the instructions to the jury.
      Alternatively, the defendant argues that this claim should be reviewed ■under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233,239-40, 567 A.2d 823 (1989), because the instruction resulted in a deprivation of a fundamental constitutional right and a fair trial. In State v. Kulmac, 230 Conn. 43, 73, 644 A.2d 887 (1994), however, the Supreme Court noted that although it is improper to submit to the jury a method of committing the crime that is not supported by the evidence, any such error is not constitutional in nature. We therefore decline to conduct an Evans-Golding review of this unpreserved, nonconstitutional claim.
      The defendant also argues that this claim should be reviewed as plain error pursuant to Practice Book § 4185. Plain error review “is reserved for truly extraordinary situations where the existence of error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Cardany, 35 Conn. App. 728, 734, 646 A.2d 291, cert. denied, 231 Conn. 942, 653 A.2d 822 (1994). In this case, the actions of the trial court did not rise to the level of plain error. We thus decline to review this claim under the plain error doctrine.

       In his request to charge, the defendant asked the trial court to deliver the following charge, which was in fact delivered by the court: “The first element is that the defendant acted wilfully or unlawfully. The word ‘wilful’ means that the defendant acted either intentionally, in the sense that his conduct was voluntary and not inadvertent, and that he either intended the resulting injury to the victim or knew that the injury would occur; or that his conduct was of such a character that it demonstrated a reckless disregard of the consequences. Thus, wilful misconduct is either intentional misconduct, which is done purposely and with knowledge of its likely consequences, or it is misconduct which, even if it is not intentional, demonstrates a reckless disregard of its likely consequences. The word ‘unlawfully’ simply means that the defendant acted without the legal right to do so.”

       We note that Vega was decided by the Appellate Session of the Superior Court. While that was not a constitutional court and we are not bound by its decisions; State v. Johnson, 28 Conn. App. 708, 716 n.5, 613 A.2d 1344 (1992), aff'd, 227 Conn. 534, 630 A.2d 1059 (1993); it is useful for our discussion of what constitutes a public place under § 53a-186.


author: Per Curiam.

text:
    Beverly M. Grimmeisen v. Erwin Paul Grimmeisen
    (12703)
    O’Connell, Landau and Spear, Js.
    Argued February 10
    decision released April 18, 1995

      C. Ian McLachlan, with whom, on the brief, were William H. Narwold and George B. Wilkinson III, for the appellant (plaintiff).

      Arnold H. Klau, with whom, on the brief, was Donald J. Cantor, for the appellee (defendant).
   Per Curiam.

This is the plaintiff’s appeal from the judgment dissolving the parties’ twenty-four year marriage. The plaintiff claims that the trial court improperly (1) excluded assets before making a property division, (2) made its alimony award nonmodifiable as to term, (3) failed to award counsel fees, and (4) made findings of fact not supported by the evidence.

We affirm the trial court’s judgment with one exception. The defendant concedes that the plaintiff is correct that the trial court miscalculated the total amount that the defendant paid for his chiropractic practice and that he owes the plaintiff $4100.

Every reasonable presumption must be given to support the correctness of the trial court’s judgment. Brash v. Brash, 20 Conn. App. 609, 613-14, 569 A.2d 44 (1990). Decision making in family matters requires flexible, individualized adjudication of the particular facts of each case. Yontef v. Yontef 185 Conn. 275, 278, 440 A.2d 899 (1981). It is well established that trial courts have a distinct advantage over appellate courts in dealing with domestic relations where all of the surrounding circumstances and the appearance and attitude of the parties are so significant. Weinstein v. Weinstein, 18 Conn. App. 622, 625, 561 A.2d 443 (1989).

In family cases, a trial court is vested with broad discretion. Sontz v. Sontz, 25 Conn. App. 810, 811, 593 A.2d 523 (1991). Appellate review of the exercise of that discretion is limited to determining (1) whether the trial court correctly applied the law and (2) whether the trial court could reasonably have concluded as it did. Duve v. Duve, 25 Conn. App. 262, 266, 594 A.2d 473, cert. denied, 220 Conn. 911, 597 A.2d 332 (1991), cert. denied, 502 U.S. 1114, 112 S. Ct. 1224, 117 L. Ed. 2d 460 (1992). This court may not substitute its own opinion for the factual findings of the trial court. Hill v. Hill, 35 Conn. App. 160, 166, 644 A.2d 951, cert. denied, 231 Conn. 914, 648 A.2d 153 (1994).

We conclude that the trial court properly applied the law. Therefore, we turn to the ultimate question of whether the trial court could have concluded as it did. Dubicki v. Dubicki, 186 Conn. 709, 713, 443 A.2d 1268 (1982). Examination of the record and appellate briefs, and consideration of the parties’ oral arguments do not persuade us, with the exception previously noted, that the trial court abused its discretion. We conclude that the trial court could reasonably have decided as it did.

The judgment is reversed only to the extent that the defendant is ordered to pay $4100 to the plaintiff in accordance with the conceded miscalculation.


author: Hennessy, J.

text:
    Ralph Butch v. Kandaswamy Thangamuthu et al.
    (13263)
    Dupont, C. J., and Landau and Hennessy, Js.
    Argued February 6
    decision released April 18, 1995

      John S. Pinney, for the appellant (plaintiff).

      Thomas W. Witherington, with whom was Maura H. Horan, for the appellees (defendants).
   Hennessy, J.

The plaintiff appeals from a judgment in favor of the defendants barring the foreclosure of a mechanic’s lien. The plaintiff claims that the trial court improperly concluded that a mechanic’s lien filed against a single lot in a subdivision is valid only with respect to services and materials furnished in the development of that lot. We disagree and affirm the judgment of the trial court.

The facts underlying this appeal are as follows. On August 3, 1988, the plaintiff, doing business as Butch & Loveland Company, entered into a contract to perform sewer and road work for an eighteen lot subdivision in Simsbury. Lot fourteen of the subdivision was sold to the defendants on April 27, 1989. The defendants have remained the owners of lot fourteen at all times relevant to this appeal. The plaintiffs work on the subdivision was completed on July 10,1989. Thereafter, on October 5,1989, the plaintiff filed a mechanic’s lien on lot fourteen to collect the sum of $83,391.65, which was the amount that remained outstanding on his contract to perform work for the entire subdivision.

Also on October 5,1989, the plaintiff filed a mechanic’s lien against lots one, two, four, five, six, seven, eight, nine, twelve, sixteen, seventeen and eighteen, which were owned by Pheasant Farm Associates, and another mechanic’s lien against lots three, ten, eleven and thirteen, which were owned by Design Development, Inc. Each of these mechanic’s liens was to collect the same sum of $83,391.65 outstanding on the contract to perform work for the entire subdivision. The subdivision property, except lot fourteen, was later foreclosed on by the bank that held a first mortgage on the subdivision property. This extinguished the plaintiff’s mechanic’s liens, except the one against lot fourteen.

On March 6,1990, the plaintiff commenced an action seeking to foreclose the mechanic’s lien on the defendants’ property. The defendants defended on the basis that, inter alia, the lien was valid only to the extent that services had been rendered.or materials supplied for the benefit of lot fourteen. Following trial, the trial court agreed with the defendants on this issue. The trial court held that “jujnder the language of General Statutes § 49-33, the plaintiff may file a blanket lien against a ‘plot’ of land, which in this case would have been all lots in the subdivision. If he chooses to file the lien against only one lot, then the lien must be limited to the value of the improvements on that lot.”

On January 21,1994, the trial court held a hearing, providing the plaintiff with an opportunity to supply evidence as to the value of services rendered and materials furnished for the benefit of lot fourteen. The plaintiff declined to offer any such evidence. Accordingly, the trial court rendered judgment in favor of the defendants.

When the plain language of a statute is unambiguous, we do not normally look further to determine its meaning. University of Connecticut v. Freedom of Information Commission, 217 Conn. 322, 328, 585 A.2d 690 (1991). General Statutes § 49-33 (a) identifies three situations in which a mechanic’s lien can be filed. Those three situations are when materials are furnished and services are rendered for (1) the construction, raising, removal or repair of any building or any of its appurtenances, (2) the improvement of any lot, and (3) the site development or subdivision of any plot of land. In each situation, the statute specifies what property is subject to a mechanic’s lien. In the first and second situations “the building, with the land on which it stands or the lot . . . is subject to the payment of the claim.” General Statutes § 49-33 (a). “[I]n the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then the plot of land, is subject to the payment of the claim.” General Statutes § 49-33 (a). Nowhere does the statute suggest that a single lot of land in a subdivided plot is subject to the payment of a claim for services rendered or materials furnished in the site development or subdivision of the entire plot. Instead, the statute unambiguously indicates that the subdivided plot of land is the property to which a mechanic’s lien must be attached when the plaintiff seeks to secure payment for materials and services provided to improve the plot being subdivided. See also DeWolf v. Bonee, 91 Conn. 712, 717, 101 A. 233 (1917) (mechanic’s lien invalid because placed on property not fully chargeable with amount stated in lien).

Under the language of § 49-33 (a), the plaintiff had a choice of filing a blanket lien against the plot of land that had been subdivided, or filing liens against the individual lots to secure sums due for improvements to each lot. When the plaintiff chose to proceed against individual lots, he limited himself to claiming in each lien an amount commensurate with the materials furnished and services rendered to improve each individual lot.

The plaintiff claims that his three separate mechanic’s liens constituted a single claim against the subdivided plot of land. He argues that if he had filed a single blanket lien it would not have been binding against the defendants because it would not have shown up in their chain of title. This argument is without merit. A blanket lien against the subdivided plot of land would have named Pheasant Farm Associates, Design Development, Inc., and the defendants as owners, and would have been served on the defendants pursuant to General Statutes §§ 49-34 and 49-35. See Papa v. Greenwich Green, Inc., 177 Conn. 295, 302-303, 416 A.2d 1196 (1979). We have previously held that the filing of a blanket lien against a subdivision is the appropriate way for a contractor providing materials and services for a subdivision to proceed, even when some lots in the subdivision have subsequently been transferred to individual owners. Pomarico v. Gary Construction, Inc., 5 Conn. App. 106, 111, 497 A.2d 70, cert. denied, 197 Conn. 816, 499 A.2d 1336 (1985).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 49-33 (a) provides in relevant part: “If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land . . . the building, with the land on which it stands or the lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then the plot of land, is subject to the payment of the claim.”


author: Schaller, J.

text:
    Margaret Sirot, Executrix (Estate of Marvin Sirot) v. J. William Burns, Commissioner of Transportation
    (12410)
    Lavery, Heiman and Schaller, Js.
    Argued February 8
    decision released April 18, 1995

      DavidS. Golub, with whom was Jonathan M. Levine, for the appellant (plaintiff).

      PaulE. Pollock, with whom, on the brief, was Coleen D. Fries, for the appellee (defendant).
   Schaller, J.

The plaintiff appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant. The verdict relieved the defendant of liability for the death of the plaintiffs decedent, Marvin Sirot, which occurred as a result of an automobile accident. The plaintiff claims that the trial court improperly instructed the jury on the issue of sole proximate cause. We affirm the judgment of the trial court.

The facts relating to this claim are as follows. On July 27,1983, Marvin Sirot was traveling east on Interstate 95, from Greenwich to New Haven. At approximately 5:30 p.m., heavy traffic was traveling about fifty-five miles per hour in both directions. Sirot was driving a 1981 Chevrolet station wagon in the left lane on the eastbound side.

While Sirot was proceeding east, Larry Morris, the driver of a large tractor trailer truck on the opposite side of the highway, lost control of his vehicle. The truck skidded across the westbound side of the highway, striking the median guardrail. The front end of the truck crossed the median into Sirot’s lane. The front of the truck struck Sirot’s vehicle, crushing and killing Sirot. It was not disputed at trial that Sirot was exercising due care in operating his vehicle.

The evidence indicated that Morris had lost control of his vehicle after his right front tire came into contact with the left rear side of another vehicle, a Datsun, that was also traveling on the westbound side of the highway. After the truck hit the median guardrail, it traveled approximately seventy feet along the rail before striking Sirot’s vehicle.

At trial, the plaintiff, Margaret Sirot, executrix of the estate of Marvin Sirot, claimed that the median barrier at the site of the accident was defective and that a proper barrier system would have prevented the truck from entering the decedent’s lane of travel. In answer to special interrogatories, the jury found that the median barrier was, in fact, defective. The jury further found that the state had notice of the defect and had failed to use reasonable care to remedy it and that the plaintiff had given proper statutory notice of her claim, as required by General Statutes § 13a-144. Finally, the jury found that the plaintiff had not proved that the defect was the sole proximate cause of Marvin Sirot’s death.

The plaintiff requested an instruction to the jury that any antecedent negligence would not defeat a jury’s finding that a defect in the median barrier was the sole proximate cause of death. The trial court rejected the plaintiffs request and instructed the jury that any negligence that caused the truck to go out of control would preclude a finding for the plaintiff on the issue of sole proximate cause. The plaintiff’s motion to set aside the verdict was denied by the trial court. This appeal followed.

The issue presented on appeal is whether our Supreme Court in Zeidwig v. Derby, 129 Conn. 693, 31 A.2d 24 (1943), created an exception to the sole proximate cause doctrine that would apply to municipal highway defect actions. We conclude that it did not do so.

It is firmly entrenched in our case law that the doctrine of sole proximate cause is the standard of causation under § 13a-144. “The incorporation of the sole proximate cause requirement for actions brought under the state defective highway statute dates back to Perrotti v. Bennett, 94 Conn. 533, 109 A. 890 (1920).” Williamson v. Commissioner of Transportation, 209 Conn. 310, 317, 551 A.2d 704 (1988). Recently, in White v. Burns, 213 Conn. 307, 336, 567 A.2d 1195 (1990), our Supreme Court reviewed this area of the law and concluded that “[s]ole proximate cause remains the standard of causation under § 13a-144.”

The plaintiff claims, however, that Zeidwig v. Derby, supra, 129 Conn. 693, created an exception to the sole proximate cause standard under § 13a-144. We disagree. Zeidwig involved an action by the plaintiff against the city of Derby and a local railway company. The plaintiff sought to recover for injuries he sustained when the truck he was driving over a stone bridge on a city street slid on ice that the railway company had a statutory duty to clear, and skidded off the road and through an iron fence that the city had a statutory duty to maintain.

The plaintiff argues that the Supreme Court’s discussion of a portion of the trial court’s charge in Zeidwig supports her claim. The court commented: “In one portion of the charge the trial court instructed the jury that if they found that the city had failed to maintain a sufficient fence the fact that either the city or the railway company was guilty of a breach of duty in failing to keep the highway reasonably safe would not prevent a finding that the want of a sufficient fence was the sole proximate cause of the plaintiffs injuries.” Zeidwig v. Derby, supra, 129 Conn. 698. The plaintiff asserts that, by making this statement, the court held that third party negligence is not to be considered when the highway defect involves a defective barrier. The plaintiff ignores the subsequent reasoning of the Zeidwig court in which it discusses the relevant portion of the instruction.

“When read with the rest of the charge, this portion cannot be held, as claimed by the city, to have eliminated from the consideration of the jury contributory negligence on the part of the plaintiff or in effect to have told them that, if the fence was defective, they need not consider, in determining the liability of the city, whether or not the railway company committed a breach of duty in not keeping reasonably safe the highway adjacent to its rails; that would be so only if they found that a breach of duty on the part of the city in failing to maintain the fence in a reasonably safe condition was the sole proximate cause of the injury.” Id. The court, therefore, neither expressly nor impliedly endorsed the portion of the charge at issue, but indicated that “[w]hen read with the rest of the charge,” it did not eliminate the consideration of the railway company’s breach of duty from the issue of sole proximate cause. Id.

When an appellate court reviews jury instructions, “[it] do[es] not engage in a microscopic examination of the charge, dissecting it line by line, nor [does it] consider the challenged portions of the charge in isolation.” State v. Andrews, 29 Conn. App. 533, 540, 616 A.2d 1148 (1992), cert. denied, 224 Conn. 924, 618 A.2d 531 (1993); State v. Wolff, 29 Conn. App. 524, 531, 616 A.2d 1143 (1992). “The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Emphasis added.) State v. Ash, 231 Conn. 484, 494, 651 A.2d 247 (1994). The court reviewed the charge in Zeidwig and concluded that, when considered as a whole, the charge was sufficient. The court emphasized that “[t]he trial court repeatedly charged the jury that there could be no recovery against the city unless they found that a breach of its duty was the sole proximate cause of the plaintiff s injuries . . . .’’Zeidwig v. Derby, supra, 129 Conn. 697.

The Supreme Court recognized that the trial court’s charge in Zeidwig had gone beyond its previous decisions and stated that “[w]e need not go so far as to hold that as a general principle the charge of the court would be correct. In the present case, it could not have harmed the city by imposing upon it a heavier burden than it was in law bound to bear.” Id., 699-700. Nowhere in its decision did the court endorse the portion of the charge cited by the plaintiff. The court merely found that the charge, taken as a whole, was adequate under the law. We conclude that Zeidwig is distinguishable on its facts and did not create an exception to the sole proximate cause standard of causation under § 13a-144. Sole proximate cause remains the standard of causation under § 13a-144. Accordingly, the trial court’s instruction to the jury in this case was proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       There was a dispute at trial as to the cause of the contact between the truck and the Datsun. Arthur Gee, the driver of the Datsun, maintained that he was traveling in the far right lane when he was struck from behind by the truck. Morris and an eyewitness, Lewis Berryman, asserted that the Datsun had started to move into the middle lane and that the truck swerved to avoid a collision, but had been unable to avoid contact.

       At trial, Sirot testified that her claim against Morris, the driver of the truck, was settled for $600,000. Gee, the driver of the Datsun involved in the initial collision with the truck, testified that the plaintiff had also made a claim against him which had settled for $300,000.

       General Statutes § 13a-144 provides in relevant part: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the superior court.”


text:
    Davey Clay et al. v. Laura Teach et al.
    (13437)
    Foti, Heiman and Hennessy, Js.

      Argued February 15
    decision released April 18, 1995

      Frederic E. Mascolo, for the appellant (plaintiff Martin Hayre).

      Thomas M. Murtha, with whom, on the brief, was Andrew B. Goodwin, for the appellees (defendants).
   Hennessy, J.

The plaintiff Martin Hayre appeals from the judgment of the trial court rendered after a jury verdict for the defendants on the issue of damages. Summary judgment had previously been granted in favor of the plaintiff on the issue of liability. The plaintiff claims that the trial court improperly refused to set aside the verdict as inconsistent. We disagree and affirm the judgment of the trial court.

The following facts form the basis of this appeal. The plaintiff brought this action to recover for injuries received in a motor vehicle accident. The trial court granted summary judgment in favor of the plaintiff on the issue of liability and the matter proceeded to a trial limited to damages. In opening statement, the defendants’ counsel told the jury that he would establish that none of the plaintiff’s injuries had been proximately caused by the accident involving the defendants’ automobile. During closing argument, the defendants’ counsel argued that the evidence did not establish that the plaintiff’s injuries had been proximately caused by the accident. The trial court then instructed the jury that, as an essential part of his case, the plaintiff was required to prove, by a preponderance of the evidence, that this accident had been the proximate cause of his injuries. The plaintiff did not object to the defendants’ opening statement or closing argument, nor did he object to the jury instructions. Furthermore, the plaintiff consented to the submission to the jury of both a plaintiff’s verdict form and a defendants’ verdict form. After deliberations, the jury returned a verdict in favor of the defendants.

We review a trial court’s refusal to set aside the verdict to determine whether the trial court abused its discretion. Biagioni v. Aetna Life & Casualty Co., 16 Conn. App. 690, 692, 549 A.2d 279 (1988). “Because a trial court is in a better position than an appellate court to determine whether a jury’s verdict was improperly influenced, its decision should be given great weight and every reasonable presumption of correctness should be accorded to it. ... A jury’s verdict should not be set aside unless it so shock[s] the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption.” (Citations omitted; internal quotation marks omitted.) Childs v. Bainer, 35 Conn. App. 301, 303, 645 A.2d 1041, cert. granted, 231 Conn. 924, 648 A.2d 162 (1994), citing Brennan v. Manlapaz, 19 Conn. App. 71, 74, 560 A.2d 988 (1989).

The plaintiff argues that this case is controlled by Malmberg v. Lopez, 208 Conn. 675, 681, 546 A.2d 264 (1988), in which our Supreme Court held that a jury verdict finding the issues for the party seeking to recover damages but awarding zero damages was inconsistent and should be set aside and a new trial ordered as to both liability and damages. See also Ginsberg v. Fusaro, 225 Conn. 420, 425, 623 A.2d 1014 (1993). In Malmberg, the jury was considering both the issue of liability and damages in a single trial, and the verdict rendered was inherently ambiguous in that it was impossible to ascertain, without engaging in speculation, whether the jury was "confused about the proper measure of damages or whether they were confused about the proper rules for determining liability, or both.” Malmberg v. Lopez, supra, 682, citing Freshwater v. Booth, 160 W. Va. 156, 160-61, 233 S.E.2d 312 (1977). In this case, because summary judgment had already resolved the issue of the defendants’ liability, there is no such ambiguity in the jury’s verdict for the defendants on the issue of damages and Malmberg is inapposite.

Instead, this case is controlled by Riccio v. Abate, 176 Conn. 415, 407 A.2d 1005 (1979). In Riccio, the trial court granted summary judgment in favor of the plaintiff with regard to liability and the case was tried to a jury solely on the issue of damages. Two verdict forms were submitted to the jury, one for the plaintiff and one for the defendant, and the jury returned a verdict in favor of the defendant. Our Supreme Court held that “[e]ven though the defendants were found liable when the court granted the plaintiff’s motion for summary judgment, the burden of proof as to the amount of damages sustained was upon the plaintiff; and the jury in this case [was] the ultimate judge of the credibility of witnesses and the weight to be accorded their testimony. . . . The verdict returned in this case showed that the jury chose to believe the defendants and not the plaintiff. In testing that verdict, the trial court had wide discretion. We conclude that it did not abuse that discretion in denying the plaintiff’s motion to set aside the verdict.” (Citations omitted; internal quotation marks omitted.) Id., 418.

Our Supreme Court has noted that the rendition of summary judgment as to liability establishes “ ‘the fact that a technical legal injury ha[s] been done ... to the plaintiff, and this entitle[s] the plaintiff to at least nominal damages.’ ” Rubin v. Rios, 186 Conn. 754, 756, 443 A.2d 1273 (1982); see also Riccio v. Abate, supra, 176 Conn. 418-19. Thus, the jury’s failure to award at least nominal damages, and the return of a verdict for the defendants on the issue of damages, is technically incorrect. Nevertheless, we will not ordinarily reverse and grant a new trial for the mere failure to award nominal damages. Riccio v. Abate, supra, 419. The difference between no damages and nominal damages does not shock the sense of justice and automatically mandate a new trial. This is especially true when the plaintiff has consented to the submission of the defendants’ verdict form to the jury. Id., 418 n.l. We conclude that the trial court did not abuse its discretion in denying the motion to set aside the verdict and permitting the verdict to stand.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the original plaintiffs in this action were the driver of an automobile, Davey Clay, and his passenger, Martin Hayre, Clay withdrew his claims prior to trial. The trial was limited to Hayre’s claims and he is referred to as the plaintiff in this appeal.

       For this reason the trial court should not have submitted a defendant’s verdict form to the jury. Rubin v. Rios, 186 Conn. 754, 756, 443 A.2d 1273 (1982); Riccio v. Abate, supra, 176 Conn. 418.

       This case, like Riccio v. Abate, supra, 176 Conn. 415, can be distinguished from the factually similar case of Rubin v. Rios, supra, 186 Conn. 756-57, in which our Supreme Court ordered a new trial on damages because it could not be determined “whether the defendants’ verdict [on damages] represented a rejection of the plaintiff’s claims concerning damages, or a finding that the no-fault thresholds were not crossed . . . .” Here, the sole issue in the trial on damages was the plaintiff’s ability to sustain the burden of proving damages relating to the car accident caused by the defendants. In these circumstances, there is no inherent ambiguity, or evidence of confusion, in a jury’s verdiet for the defendants.