author: Borden, J.

text:
    State of Connecticut v. Jo Ann Bettini
    (4361)
    Dupont, C. J., Borden and Daly, Js.

      Argued March 5
    decision released August 4, 1987

      Joseph F. Keefe, with whom, on the brief, were Daniel D. Mencuccini and David A. Moraghan, for the appellant (defendant).

      James G. Clark, assistant state’s attorney, with whom, on the brief, were Dennis Santore, state’s attorney, and Linda L. Yoder, special attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, after a jury trial, of larceny in the first degree, by embezzlement, in violation of General Statutes § 53a-122 (a) (2). She claims that the trial court erred (1) in denying her motion for judgment of acquittal, (2) in denying the defendant’s request to charge regarding accessorial liability, and (3) in denying the defendant’s motion for discovery of alleged exculpatory evidence. We find no error.

The jury could reasonably have found the following facts: During the period from July, 1982, through July, 1983, the Register Citizen Newspaper sustained financial losses from its business department in the approximate amount of $17,000 to $24,000. The funds were taken in the following manner. On a daily basis, checks were received in the mail from customers for display advertising. The checks were distributed to the person responsible for preparing the daily cash sheet and bank deposit. This person entered receipt of the payment on the daily cash sheet which contained the customer’s identity, the gross amount owed or paid by the customer, an allowable discount, and a net amount owed or paid after deducting the allowed discount. On at least ninety-five occasions, the cash sheets were altered. While the gross amount figure accurately reflected the total value of the checks received on any given day, the individual discount figure would be inflated beyond that to which the customer was entitled. Consequently, the net amount figure was reduced.

The same person who prepared the daily cash sheets also prepared a deposit of the day’s receipts. Each deposit consisted of the checks received and all the cash contained in the department’s cash register on a given day. The cash came from different sources, including payments received through walk-ins or from the newspaper’s vending machines. The checks were entered on the deposit at face value and were not altered. On the days when alterations occurred, that portion of the deposit comprising the total amount of checks was in excess of the net figure on the cash sheets. This discrepancy was attributable to the inflated discount figure which had been recorded. This lower net figure coupled with the deposit of the vendor’s checks at face value created an available cash surplus in the register at the end of each day. This surplus was equal to the increase caused by the inflated amount of the discount on the cash sheets. For the bank deposit to correspond to the amount entered on the daily cash sheets, the thief took the excess amount in cash from the register.

I

The defendant first claims that the trial court erred in denying her motion for judgment of acquittal on the charge of larceny by embezzlement. She claims essentially that the state failed to prove two elements of the crime: her identity; and wrongful appropriation. We disagree.

“The two part standard for gauging the sufficiency of evidence in a criminal case is well established. ‘We first view all of the evidence in the light most favorable to the verdict. We then determine whether a jury could have reasonably concluded, from that evidence and all the reasonable inferences which it yields, that the defendant was guilty beyond a reasonable doubt.’ State v. Parent, 8 Conn. App. 469, 472-73, 513 A.2d 725 (1986). ‘The jury may base an inference on facts it finds as a result of other inferences.’ State v. Little, 194 Conn. 665, 673, 485 A.2d 913 (1984). Proof beyond a reasonable doubt does not mean proof beyond a possible doubt. Id., 672.” State v. Liscio, 9 Conn. App. 121, 125, 516 A.2d 1366 (1986), cert. denied, 202 Conn. 803, 519 A.2d 1208 (1987).

Under General Statutes § 53a-119 (1), “[a] person commits embezzlement when he wrongfully appropriates to himself or to another property of another in his care or custody.” (Emphasis added.) General Statutes § 53a-118 (a) (4) provides further: “To ‘appropriate’ property of another to oneself or a third person means (A) to exercise control over it . . . permanently or for so extended a period or under such circumstances as to acquire the major portion of its economic value or benefit . . . .”

The crime of embezzlement is distinguishable from other types of larceny because the property must already be in the embezzler’s lawful possession when it is misappropriated. 2 W. LaFave & A. Scott, Criminal Law § 8.6 (b). “The crime of embezzlement is consummated where, as here, the defendant, by virtue of his agency or other confidential relationship, has been entrusted with the property of another and wrongfully converts it to his own use.” State v. Lizzi, 199 Conn. 462, 467, 508 A.2d 16 (1986). Contrary to the defendant’s suggestion, there is no requirement that anyone actually see the defendant appropriate money. Nor could there be, since the nature of the crime is such that the property appropriated is already lawfully in the thief’s possession. Also, there is no requirement, as the defendant suggests, for the state to prove that the defendant’s life style evinced unexplained wealth.

The state presented sufficient evidence to allow the jury reasonably to conclude that the defendant wrongfully appropriated to herself money in her care which belonged to the newspaper. That evidence is as follows.

Over the course of a year, $17,000 to $24,000 was appropriated by a complex method involving ninety-five alterations of the daily cash sheets. The thief had to have access to the daily cash sheets including the checks received in the mail, as well as the bank deposits and funds in the cash register. This access must have been more than casual or occasional in light of the number of thefts over the year.

Only employees of the accounting office were permitted to make entries on the cash sheets. The employees, therefore, who theoretically had access to the records were Michael Orsi, the business office manager; Cindy Cifaldi, the bookkeeper for the department prior to February, 1983; Renee Beecher, the receptionist responsible for answering the phone and sorting the mail; Claudia Derwitsch, the computer operator, who is also the defendant’s sister and was a codefendant at trial; and the defendant. Prior to February, 1983, the defendant was a “floater” who had occasion to fill in for the bookkeeper, Cifaldi, when she was absent. After that date, the defendant assumed the position of bookkeeper upon Cifaldi’s transfer to the circulation-department. After February, 1983, the frequency of the thefts increased dramatically. Prior to that date and while Cifaldi was the bookkeeper, she noticed errors on the cash sheets on a number of occasions when the defendant substituted for her, including the entry of inflated discount amounts. Cifaldi testified that she had told another employee that she thought the defendant was taking money from the newspaper, although she did not report it to her superiors.

The state also introduced evidence from personnel records which revealed that Orsi, Cifaldi and Beecher were absent from work or on vacation on at least one of the days when the altered entries and accompanying thefts took place. Additionally, when the defendant or her sister were on vacation, no thefts took place. Finally, a handwriting expert testified that he had examined samples of the false entries and compared them to the handwriting samples of Beecher, Cifaldi, Orsi, the defendant and her sister. The expert found no association between the handwriting of the first three individuals and the false entries, but did find similarities between the handwriting of the defendant and her sister and some of the entries. From the cumulative effect of this evidence, the jury could reasonably have concluded that the defendant wrongfully appropriated the funds.

II

The defendant next claims that the trial court erred in failing to instruct the jury, as requested, that mere association or knowledge of an illegal activity or mere presence at the scene of a crime is not sufficient to convict a person of embezzlement. We disagree.

Practice Book § 852, at the time of the defendant’s trial, provided: “Requests shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the facts supported by the evidence to which the proposition would apply.” (Emphasis added.) In her request to charge; see footnote 2, supra; the defendant has failed to comply with the rules of practice since she did not state the facts to which the proposition of law would apply. In the absence of compliance with the rules of practice, the trial court is entitled to deny a request to charge. See State v. Thurman, 10 Conn. App. 302, 323, 523 A.2d 891 (1987).

Under the facts of this case, the defendant’s failure to comply with the rules of practice is understandable since there are no such facts that she could assert in support of the requested instruction. The requested charge is appropriate in cases where the state relies on a theory of accessorial liability. See, e.g., State v. Teart, 170 Conn. 332, 334-36, 365 A.2d 1200 (1976). The case cited by the defendant as authority for the proposition of law involved accomplice liability. See United States v. Francomano, 554 F.2d 483, 486 (1st Cir. 1977). The evidence adduced at the trial in this case did not support a theory of accessorial liability. The evidence established more than passive involvement of the defendant in the criminal activity; it established her liability as a principal wrongdoer. It was not error for the trial court to refuse to charge the jury on a theory of law which was not supported by the evidence. State v. Gasparro, 194 Conn. 96, 113, 480 A.2d 509 (1984), cert. denied, 474 U.S. 828, 106 S. Ct. 90, 88 L. Ed. 2d 74 (1985).

Ill

The defendant’s final claim is that the trial court erred in denying her motion for discovery which sought, inter alia, the names of any persons accused of larceny by the newspaper over the past five years, details about any such incident, information about criminal or civil proceedings arising from the charges, and information regarding unemployment claims filed by such persons. This request included information which “now [was] known to the prosecuting authority, or which may through due diligence be learned from the investigating officers or the witnesses in the case.” (Emphasis added.) The defendant makes the unsupported assertion that if the request had been granted, she would have received information that “[t]he very same act[s] of theft and embezzlement . . . had occurred on a number of occasions in the past,” and that other employees of the newspaper had been accused of these thefts. Relying on Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and State v. Cohane, 193 Conn. 474, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984), the defendant claims that the failure to grant the request denied her access to exculpatory evidence which would have assisted her in the cross-examination of the state’s key witnesses, in violation of her constitutional right to a fair trial. We disagree.

There is absolutely no basis for concluding that the state possessed evidence of prior thefts at the newspaper. Our Supreme Court has stated that “[i]n order to establish a violation of Brady and its progeny, the defendant must demonstrate the prosecution had possession of material information favorable to the accused . . . .” (Emphasis added; footnote omitted.) State v. Falcone, 191 Conn. 12, 17, 463 A.2d 558 (1983); see also General Statutes § 54-86c. We reject the defendant’s claim that the state in this case was under an obligation to conduct an independent investigation of the newspaper’s records in order to become apprised of such information.

Furthermore, the defendant took advantage of the opportunity to cross-examine some of the state’s witnesses on the matter of prior thefts at the newspaper. That cross-examination revealed that on occasion insignificant amounts of cash had been unaccounted for, and that in 1981 there was a single theft of a cash deposit of $16,000 dollars from the circulation department. There was no evidence adduced, however, which in any manner supports the defendant’s claim that “the very same aet[s] of theft and embezzlement” had occurred before.

There is no error.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1981) § 53a-122 (a) (2) provides; “A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and: ... (2) the value of the property or service exceeds two thousand dollars.”
      General Statutes § 53a-119 (1) provides: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to: (1) Embezzlement. A person commits embezzlement when he wrongfully appropriates to himself or to another property of another in his care or custody.”

       Claudia Derwitsch was also charged with first degree larceny in violation of General Statutes § 53a-122 (a) (2). She was acquitted, after a joint trial with the defendant, of that charge.

       The defendant’s request to charge was as follows: “You must keep in mind at all times that mere association with others, or mere knowledge of illegal activity is not sufficient to permit you to convict the defendant of the crimes with which she is charged. I instruct you further that ‘mere presence at [the] scene of a crime is not evidence of guilt.’ United States v. Francomano, 554 F.2d 483, 486 (1st Cir. 1977).”


source: Caselaw Access Project

author: Bieluch, J.

license: Public Domain

text:
    Daniel Sager v. GAB Business Services, Inc., et al.
    (5058)
    Hull, Spallone and Bieluch, Js.
    Argued March 11
    decision released August 4, 1987

      Lucas D. Strunk, with whom, on the brief, was Michael J. O’Sullivan, for the appellant (named defendant).

      James J. Giulietti, for the appellee (plaintiff).
   Bieluch, J.

The defendant appeals from the judgment of the compensation review division dismissing its appeal as untimely under the regulations of Connecticut state agencies § 31-301-2. The defendant claims that the compensation review division (1) deprived it of due process of law, (2) exceeded its statutory authority, (3) erred in its interpretation of § 31-301-2 of the regulations, and (4) acted illegally, therefore rendering its decision void and of no effect, because it failed to adopt regulations on the dismissal of appeals despite a statutory directive to do so.

The facts are not in dispute. The plaintiff filed a workers’ compensation claim which was contested by his employer, the defendant. After a hearing before the workers’ compensation commissioner, a finding was made that the plaintiff had suffered a compensable injury and an award was rendered on November 12, 1985.

On November 18, 1985, the defendant appealed to the compensation review division from the commissioner’s finding and award. See General Statutes § 31-301. On that same date, a motion to extend the time to file a motion to correct the finding was filed. See Regs., Conn. State Agencies § 31-301-4. This motion was granted. Thereafter, on December 4,1985, the defendant filed its motion to correct the finding and award. This motion was denied on December 5,1985.

On December 16,1985, the defendant filed its reasons of appeal. See Regs., Conn. State Agencies § 31-301-2. On the same day, the plaintiff moved to dismiss the appeal, citing the defendant's failure to file its reasons of appeal within ten days of its filing of the appeal petition. See Regs., Conn. State Agencies § 31-301-2. After submission of briefs and argument by counsel, the review division on April 9,1986, granted the plaintiff's motion and dismissed the appeal for lack of compliance with § 31-301-2 of the administrative regulations. The defendant has appealed from that dismissal.

The defendant’s first claim is that the action of the review division in dismissing the appeal deprived it of due process of law as guaranteed by the federal and state constitutions. See U.S. Const., amend. XIV; Conn. Const., art. I, § 8. “[T]he due process clauses of the state and federal constitutions require that one subject to significant deprivation of liberty or property must be accorded adequate notice and a meaningful opportunity to be heard.” Counsel on Probate Judicial Conduct re: James H. Kinsella, 193 Conn. 180, 207, 476 A.2d 1041 (1984). The plaintiff argues that the defendant’s rights were not violated, and that its due process rights were satisfied at the proceeding before the commissioner. He also argues that the defendant’s right to appeal under General Statutes § 31-301 is not constitutional, but purely statutory, and that the dismissal of its appeal for failure to file reasons of appeal does not infringe upon the defendant’s due process rights.

Because we find that this appeal may be decided upon statutory grounds, we decline to address the defendant’s constitutional claim. “An appellate court ‘will not pass upon a constitutional question if there is present some other ground upon which the case may be decided.’ Hartford v. Powers, 183 Conn. 76, 84-85, 438 A.2d 824 (1981).” In re Carl O., 10 Conn. App. 428, 438, 523 A.2d 1339, cert. denied, 204 Conn. 802, 525 A.2d 964 (1987). We find such other ground in the defendant’s second claim of error.

The defendant’s second claim is that the review division’s dismissal of the appeal exceeded its statutory authority set forth in General Statutes § 31-301. Section 31-301 (a) provides in relevant part that “[t]he procedure in appealing from an award of the compensation commissioner shall be the same as the procedure employed in an appeal from the superior court to the supreme court, where applicable. Acting together as a compensation review division, the commissioners shall adopt regulations in accordance with the provisions of chapter 54 [the Uniform Administrative Procedure Act (UAPA)] to establish rules, methods of procedure and forms as they deem expedient for the purposes of this chapter.” (Emphasis added.)

Pursuant to General Statutes § 4-168, which is a provision of the UAPA, the commissioners promulgated regulations §§ 31-301-1 through 31-301-11. These regulations establish rules for appeal from a commissioner’s decision to the review division. These provisions, however, are not comprehensive and do not adequately address the procedure followed in this appeal.

Section 31-301-2 of the regulations, entitled “Reasons of Appeal,” provides in relevant part that “[w]ithin ten days after the filing of the appeal petition, the appellant shall file with the compensation review division his reasons of appeal.” The regulations, however, do not provide that a failure to file timely the reasons of appeal mandates dismissal. While the statute fails to provide in express terms for the dismissal of an appeal, a dismissal is authorized by the provision in § 31-301 (a) that “[t]he procedure in appealing from an award of the compensation commissioner shall be the same as the procedure employed in an appeal from the superior court to the supreme court, where applicable.” General Statutes § 31-301 (a) controls the manner and the means for dismissal of an appeal to the review division. The Supreme Court rules, therefore, govern the dismissal of an appeal by the review division until and unless the workers’ compensation commissioners promulgate their own rules of procedure for dismissal of appeals in accordance with the UAPA.

In evaluating whether the dismissal rendered against the defendant was in accordance with the rules of practice governing an appeal from the Superior Court, we find that the reasons of appeal required by § 31-301-2 of the state agency regulations serve an identical function as a preliminary statement of issues. See Practice Book § 4013 (a) (1); Regs., Conn. State Agencies § 31-301-2. Where an appellant fails to file timely a preliminary statement of issues as required by Practice Book § 4013 (a) (1), the appeal is voidable. The appellee may then move to dismiss the appeal in accordance with Practice Book § 4056, which provides in relevant part that where a motion to dismiss an appeal is based upon the “failure to file papers within the time allowed,” sueh motion shall be filed within ten days after the time when such paper was required to be filed. Where an appellee fails to move for dismissal within the ten day period, the motion to dismiss comes too late and the defect is deemed waived. See LaReau v. Reincke, 158 Conn. 486, 493-94, 264 A.2d 576 (1969); Tamarit v. Ottolini, 145 Conn. 586, 589, 145 A.2d 587 (1958); Sorteberg Controls Corporation v. Field, 2 Conn. App. 413, 415 n.3, 478 A.2d 1051, cert. denied, 194 Conn. 806, 482 A.2d 711 (1984).

Applying the rules of practice for appeals from the Superior Court to the present case, we find that the plaintiff did not make a timely objection to the defendant’s failure to file its reasons of appeal within ten days. The motion to dismiss, therefore, came too late and would not warrant dismissal under Practice Book § 4056. Because we find that the rules of practice governing appeals from the Superior Court do not warrant the dismissal of the defendant’s appeal, we likewise find that the review division’s use of Regulation § 31-301-2 to dismiss the appeal for late filing of reasons of appeal was in excess of the review division’s statutory authority as set forth in General Statutes § 31-301. For that reason, we hold that the review division erred in dismissing the defendant’s appeal.

There is error, the decision of the compensation review division dismissing the defendant’s appeal is set aside, and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       This action was brought against the named defendant and Twin Cities Insurance Company. At oral argument before this court, counsel confirmed that this appeal is brought on behalf of the named defendant only. As used in this opinion, therefore, the term defendant refers to GAB Business Services, Inc.

       From our review of the plaintiffs motion to dismiss as it appears in the record, we note that it was dated by the plaintiff, December 12,1985, and received by the review division on Monday, December 16, 1985.

       In support of his argument, the plaintiff relies upon the following authorities. “The state may prescribe rules as to appellate procedure. And no violation of constitutional law is involved in a court’s insistence that a statutory right of appeal be exercised according to the lawful rules of the court.” 16A Am. Jur. 2d 1082, Constitutional Law § 859. “The right of appeal to a reviewing administrative agency is purely statutory and all applicable statutory requirements must be complied with to sustain such appeal.” 2 Am. Jur. 2d, Administrative Law § 543.

       The defendant’s claims of error numbered two through four challenge the review division’s dismissal of the appeal as violative of General Statutes § 31-301. Rather than discussing each of these claims separately, we have considered them in our discussion of the defendant’s second claim of error.

       The plaintiff states that where a time limitation is provided by statute, failure to comply with such time requirement warrants dismissal and is not subject to a waiver. We acknowledge that only when a time limitation is jurisdictional or substantive does failure to meet such limitation warrant dismissal and is not subject to waiver. Zoning Board of Appeals v. Freedom, of Information Commission, 198 Conn. 498, 503-504, 503 A.2d 1161 (1986). The time limitation before us is procedural, and not jurisdictional or substantive in nature, and does not mandate the dismissal of an appeal to the review division for failure to file reasons of appeal as provided in § 31-301-2 of the regulations of Connecticut state agencies.

       The record demonstrates that the defendant’s appeal was filed on November 18, 1985, and under § 31-301-2 of the regulations of Connecticut state agencies it was obliged to file its reasons of appeal on November 28, 1985. Although the plaintiffs motion to dismiss was required to be filed on December 9,1985, the tenth day being a Sunday; see Practice Book § 4056; it was not filed until December 16, 1985, one week late.

       At oral argument before this court, the question arose whether the filing of a motion to correct tolls the period for filing an appeal from the commissioner’s decision. See Foley v. City of New Britain, 1 Conn. Workers’ Comp. Review Opinions 147, 150 (1982) (motion to correct analogous to motion to set aside a verdict); Practice Book § 4009 (motion to set aside verdict tolls time period for taking of an appeal). This inquiry was not formally raised by the parties in their presentation of this appeal. Therefore, we indicate no opinion at this time on this belated question. We note that the defendant’s appeal to the review division was filed in conformity with the regulations of Connecticut state agencies § 31-301-1.

       While we find error and, therefore, hold that the defendant’s appeal is to be reinstated, the issue still remains whether the defendant may amend its reasons of appeal to include the court’s denial of its motion to correct. Although we note that the regulations of Connecticut state agencies do not provide for such an amendment, the review division has the power to grant such a request under General Statutes § 31-301 and Practice Book § 4013 (c).


text:
    State of Connecticut v. Carl Steve
    (4861)
    Dupont, C. J., Daly and Bieluch, Js.
    Argued March 31
    decision released August 4, 1987

      Denise Dishongh, with whom, on the brief, was Louis S. Avitabile, special public defender, for the appellant (defendant).

      Michael A. Fasano, special assistant state’s attorney, with whom were Peter D. Markle, assistant state’s attorney, and, on the brief, John Connelly, state’s attorney, Bradford J. Ward, assistant state’s attorney, and Joseph A. Geremia, Jr., for the appellee (state).
   Bieluch, J.

The defendant appeals from the judgment of conviction rendered against him in accordance with the jury’s verdict of guilty of robbery in the first degree, a violation of General Statutes § 53a-134 (a) (2), and assault in the first degree, a violation of General Statutes § 53a-59 (a) (3). The defendant’s sole claim is that the trial court erred in allowing the jury to consider theories of criminal liability not substantially alleged in the bill of particulars. He concludes, therefore, that the court erred in denying his motions in arrest of judgment and for a new trial based on that ground. We find error.

The jury could reasonably have found the following facts. On April 18, 1985, the defendant was charged by information with the crimes of robbery in the first degree, a violation of General Statutes § 53a-134, and assault in the first degree, a violation of General Statutes § 53a-59. On October 9,1985, a substitute information was filed which specified the two counts against the defendant as violations of General Statutes § 53a-134 (a) (2), and General Statutes § 53a-59 (a) (3), respectively. The defendant pleaded not guilty to the substitute information and elected a trial by jury.

On October 11,1985, the state filed a bill of particulars, pursuant to the defendant’s request. The defendant’s motion for a bill of particulars requested that the information state: (1) the specific nature of the offense or offenses with which the defendant is charged; (2) the time, place and manner in which this offense was committed; (3) the specific acts performed by the defendant which constitute all necessary elements of the crime charged; (4) the general circumstances surrounding the alleged crime; (5) the date and time of said alleged violation and the section of the Connecticut General Statutes violated; (6) the name or names and addresses of all persons the state alleges were involved in said violation.

The bill of particulars alleged the following: “The defendant, Carl Steve, is charged with the crime of Robbery in the First Degree in violation of Section 53a-134 (a) (2) of the Connecticut General Statutes, in that on or about April 13,1985, at or near 185 Walnut Street in the city of Waterbury at approximately 4:00 p.m., the defendant, in the course of committing a larceny used physical force upon another person, to wit: Scott Doyle, for the purpose of compelling the owner of such property, Scott Doyle, to deliver up the property and to prevent or overcome resistance to the taking of the property, and the defendant was armed with a deadly weapon. The defendant, Carl Steve, is charged with the crime of Assault in the First Degree in violation of Section 53a-59 (a) (3) of the Connecticut General Statutes, in that on or about April 13,1985, at or near 185 Walnut Street in the city of Waterbury at approximately 4:00 p.m., the defendant under circumstances evincing an extreme indifference to human life recklessly engaged in conduct which created a risk of death to another person, to wit: Scott Doyle, and thereby caused serious physical injury to Scott Doyle.”

After the state concluded the presentation of evidence in its case-in-chief, the defendant took the stand in his own defense and testified that a second person, Jeff Manson, had actually done the shooting and taken the victim’s property and that he, the defendant, did not participate. This story was corroborated in part by a second witness who testified that she saw the defendant and Manson together moments after the incident and that Manson was carrying a handgun and bragging about robbing and shooting a “white dude.” She testified that while Manson was talking, the defendant sat silently and made no comment.

After the close of all the evidence, the court charged the jury on the theory of aiding and abetting; see General Statutes § 53a-8; as to both charges contained in the substitute information. The jury returned a verdict of guilty to both of those charges. Thereafter, the defendant filed motions for judgment of acquittal, for a new trial, and in arrest of judgment. In the motion for judgment of acquittal, the defendant claimed that the evidence presented did not permit a finding of guilt beyond a reasonable doubt of the charges contained in the substitute information. The defendant’s motions for a new trial and in arrest of judgment alleged that the court’s charge allowed the jury to consider facts and crimes outside the scope of the bill of particulars. The defendant’s motions were denied by the court and the defendant was sentenced accordingly.

The defendant claims on appeal that the court erred when, upon the request of the jury on the second day of its deliberations, it instructed the jury that “robbery becomes robbery in the first degree when the physical force involved includes a participant, the defendant or participant, being armed with a deadly weapon.” At the beginning of the third day of deliberations, the court again instructed the jury that “[rjobbery in the first degree contemplates that property is taken from another person and physical force is used, and the defendant or another participant is armed with a deadly weapon, as I have defined that for you. In other words, under robbery one, all participants are guilty if any one of the participants is armed with a deadly weapon.”

These instructions were excepted to, and the defendant claims on appeal that they went beyond the scope of the allegations in the Ml of particulars which alleged that the defendant used physical force upon another person for the purpose of committing the larceny, and that “the defendant was armed with a deadly weapon.”

The defendant further alleges a similar error in the court’s charge to the jury on assault in the first degree. General Statutes § 53a-59; see footnote 2, supra. In its original charge to the jurors, the court instructed them that they could convict the defendant of assault in the first degree if he solicited, requested, commanded, importuned, or intentionally aided another person to engage in conduct which constitutes the offense of assault in the first degree under § 53a-59. The court instructed the jury that “if you should find that the accused did any one of those things specified in this statute, he is, in the law, just as guilty of the crimes charged as though he had directly committed them or directly participated in their commission.” Again, the defendant duly excepted to the court’s instructions, claiming that they went beyond the scope of the contents of the bill of particulars.

“A bill of particulars does not exist in a vacuum; it must be read with the information which the defendant asked be particularized. State v. Coleman, 167 Conn. 260, 268-69, 355 A.2d 11 (1974); see State v. Ballas, 180 Conn. 662, 664, 433 A.2d 989 (1980). ‘ “The office of a bill of particulars is to supply both the accused and the court additional information concerning an accusation that the defendant has committed an act or acts constituting a criminal offense.” (Emphasis added.) 41 Am. Jur. 2d, Indictments and Informations, § 163.’ State v. Coleman, supra, 269. If we consider the bill of particulars in conjunction with the information, ‘the test to be applied is as follows: “[I]f the state’s pleadings . . . informed the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and were definite enough to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense, they have performed their constitutional duty. ...” (Citations omitted.) State v. Sumner, 178 Conn. 163, 168, 422 A.2d 299 (1979).’ State v. Ballas, supra, 664.” State v. Roque, 190 Conn. 143, 154, 460 A.2d 26 (1983).

“ ‘The bill of particulars does not become part of the [information]. See 4 Wharton, Criminal Law and Procedure, § 1870. See generally 41 Am. Jur. 2d, Indictments and Informations, §§ 163-165.’ State v. Glass, 107 R.I. 86, 92, 265 A.2d 324 (1970). It does, however, limit the state to proving that the defendant committed an offense ‘in substantially the manner described.’ State v. Ruiz, 171 Conn. 264, 270, 368 A.2d 222 (1976); see State v. DiLorenzo, 138 Conn. 281, 284, 83 A.2d 479 (1951); State v. Scott, 80 Conn. 317, 321, 68 A. 258 (1907).” State v. Roque, supra, 154-55. It is the defendant’s burden on appeal to demonstrate that he was in fact prejudiced in his defense on the merits and that substantial injustice was done to him because of the language of the state’s pleading. Id., 156.

We find that the court’s charge to the jury was not in substantial conformity with the facts alleged in the state’s bill of particulars. The bill of particulars alleged that the defendant used physical force upon the victim and that the defendant was armed with a deadly weapon. The jury was charged, however, that it could find the defendant guilty even if it found that the defendant did not use physical force upon the victim and was not the person armed with the gun. The disparity between the limiting allegations of the bill of particulars and the scope of the trial court’s charge is substantial. Cf. State v. Killenger, 193 Conn. 48, 475 A.2d 276 (1984) (when the pleadings alleged the defendant struck the victim with a hammer, no material variance found where the evidence indicated that a flashlight was used); State v. Roque, supra (bill of particulars which accused the defendant of “taking part in” a prison riot was sufficient notice of allegations in original information to defend on the charge of rioting at a correctional institution). In the present case, the charge on accessory liability as to both counts was not in substantial conformity with the allegation that the defendant was the principal of each crime and the trial court erred in charging the jury on that theory.

Where the court’s charge was not in substantial conformity with the pleadings, it is the defendant’s burden to demonstrate that he was in fact prejudiced in the merits of his defense. It is clear that the presentation of his defense relied upon the state’s claim that the defendant was in fact the principal of each crime. We find that the defendant’s reliance upon the state’s pleadings was justified in this case.

Although we acknowledge that a defendant may be convicted on a theory of accessory liability even where he has not been formally charged by information with such; see State v. Crump, 201 Conn. 489, 493, 518 A.2d 378 (1986); the defendant specifically requested that the state particularize the “manner in which” the defendant committed the offenses charged, and the identification by “name or names and addresses of all persons the State alleges were involved in said [offenses].” After the state filed its bill of particulars, the defendant orally requested in court that the state give additional detail as to the reckless conduct that the defendant allegedly engaged in that resulted in serious physical injury for proof of assault in the first degree. See General Statutes § 53a-59; footnote 2, supra. The assistant state’s attorney replied that if he were ordered to amend the bill of particulars, he would do so by alleging that the defendant “recklessly engaged in conduct to wit: possessing a loaded weapon and holding it to the stomach of the person of the victim, Scott Doyle . . . thereby causing physical injury by shooting Scott Doyle.” In view of the assistant state’s attorney’s statement, the trial court denied the defendant’s request, asserting “you know that the state is alleging that the conduct which was engaged in, was creating a risk of death, was the use of a hangun . . . because that is pretty much alleged in the first Bill of Particulars . . . and does not have to be amended. . . . The record makes it clear what the basis of the charge and Bill of Particulars is.”

On the basis of the foregoing, we find that the state’s failure to afford the defendant timely notice that it would proceed upon a theory of accessory liability substantially prejudiced the defendant in his defense as to both charges. In light of the state’s particularization of the offenses, both in its bill of particulars and in its representation up until the close of the evidence, the defendant was justified in believing that the state was not proceeding upon the theory of accessory liability and in relying upon the prior expressed particularization of the two charges.

The state makes the further claim that because the defendant was convicted on the substantive counts as alleged in the information and the bill of particulars, any error was rendered harmless. See, e.g., State v. Ignatowski, 10 Conn. App. 709, 715, 525 A.2d 542 (1987). In reviewing the state’s claim, we must first establish which party bears the burden of proof on this issue.

“Due process requires that a criminal defendant be given notice of the specific charge against him and an opportunity to defend against that charge.” State v. Franko, 199 Conn. 481, 491-92, 508 A.2d 22 (1986). Where a defendant is prejudiced by being charged with a substantially different crime after the commencement of trial, his due process rights are violated. See id., 492. Where a defendant is charged with an offense, he is on notice that he may be convicted as an accessory and a charge on accessory liability under General Statutes § 53a-8 does not ordinarily constitute a substantially different offense. See, e.g., State v. Crump, supra, 495. In a case such as this, however, where the state’s pleadings affirmatively indicated that the defendant was being prosecuted as the principal and the issue of accessory liability arose only after the defendant had presented his case in obvious reliance upon the fact that he was being tried as a principal, we find that the jury was instructed to consider a theory of liability of which the defendant had no fair notice and which was beyond the scope of the state’s pleadings. See State v. Belton, 190 Conn. 496, 501-502, 461 A.2d 973 (1983) (where information charged that defendant “entered a building unlawfully,” it was error of constitutional dimension for the court to instruct that he could be found guilty if they found he entered “or remain[ed] unlawfully” in the building). The state, therefore, bears the burden of proving that the error was harmless beyond a reasonable doubt. State v. Cohane, 193 Conn. 474, 484-85, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984); State v. Belton, supra, 503-504.

We find that the state has not met this burden here. It is clear from the defendant’s strategy at trial and the objections he made before the trial court as already discussed, that the defendant relied upon the accuracy of the state’s pleadings. The state in its brief admits that since the defendant never asked that the jury be polled as to the basis of its verdict, “the defendant has failed to show whether the jury actually rendered a conviction based on a theory of accessorial liability, or on the defendant being the principal offender.” The state, however, concedes that “[o]f vital significance is that the jury did in fact return a verdict on the substantive count as alleged in the information and the bill of particulars.” Because of the substantial variance between the pleadings relied on by the defendant and the court’s charge leading to the verdicts, we cannot find the error to be harmless beyond a reasonable doubt. See State v. Belton, supra, 504.

The defendant raises an alternate argument upon which his conviction should be overturned under the plain error doctrine. See Practice Book § 4185; State v. Kitt, 8 Conn. App. 478, 489, 513 A.2d 731, cert. denied, 202 Conn. 801, 518 A.2d 648 (1986). He argues that one cannot be an accessory to a crime requiring a reckless or negligent mental state. While we need not rule on this alternate ground, it appears that the Supreme Court has recently decided this issue against the defendant. See State v. Foster, 202 Conn. 520, 522 A.2d 277 (1987).

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-134. robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.
      “(b) Robbery in the first degree is a class B felony provided any person found guilty under subdivision (2) of subsection (a) shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.”

       “[General Statutes] Sec. 53a-59. assault in the first degree: class b felony, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous-instrument; or (2) with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person; or (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person.
      “(b) Assault in the first degree is a class B felony provided any person found guilty under subdivision (1) of subsection (a) shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.”

       We note that the defendant has not challenged the sufficiency of the evidence presented at trial as inadequate to support his convictions. Conversely, we note that this is not such a case, as alleged by the state, that the overwhelming evidence against the defendant renders the court’s error harmless beyond a reasonable doubt. See State v. Turcio, 178 Conn. 116, 140, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980); see also Rose v. Clark, 478 U.S. 570, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986); State v. Dullivan, 10 Conn. App. 474, 523 A.2d 1353 (1987).


author: Daly, J.

text:
    State of Connecticut v. Rudolph Vilhotti
    (4087)
    Dupont, C. J., Borden and Daly, Js.
    Argued March 5
    decision released August 4, 1987

      Barry S. Moller,, with whom was Joette Katz, public defender, and, on the brief, Martin J. Minnella and James P. Mooney, for the appellant (defendant).

      Bernadette Conway, deputy assistant state’s attorney, with whom was Robert D Andrea,, assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant was tried by a jury in October, 1984. The trial resulted in a mistrial by virtue of a hung jury. In February, 1985, the defendant was again tried by a jury. He was convicted of robbery in the first degree, a violation of General Statutes § 53a-184. From the judgment rendered upon the conviction, the defendant has appealed.

The defendant claims on appeal that the trial court erred (1) in not charging the jury properly, and (2) in failing to suppress several out-of-court and in-court identifications. In the first claim, the defendant argues that the jury charge, even though almost verbatim to that requested by the defendant, was erroneous because it confused the jury as to the element of intent. The defendant’s second claim is that the identifications by the witnesses were tainted by impermissively suggestive procedures and should therefore have been excluded from the trial.

The jury could reasonably have found the following facts. On April 10, 1981, at about 2:55 p.m., Chris LaBranche was third in line at the drive-in window of the Thomaston Savings Bank. LaBranche, who was waiting to cash a check, noticed a gray or silver white car back into a parking space. She observed the driver for approximately five minutes, and described him as a white male who was overweight and had gray and black hair. At that time, Elizabeth Weeks, a bank teller employed by the Thomaston Savings Bank, was working at the drive-in window. As a car pulled up, Weeks pushed the window tray toward the car without looking up. Upon pulling the window tray in she discovered a brown paper bag. At this point, Weeks then looked up and observed a man pointing a gun at her. Instinctively, Weeks tripped the alarm while filling the brown paper bag with $4900 in cash. After handing over the money, Weeks tried to read the license plate number, but discovered that the license plate was covered with a red rag. The entire episode lasted approximately one and one-half to two minutes. Weeks, however, stared at the culprit at a distance of only three feet for fifteen seconds. Weeks described the thief as a fifty year old white male with salt and pepper hair, a pock-marked face and a heavy set build. Additionally, Weeks assisted the investigation by helping the Thomaston police draft a composite sketch.

At approximately 8:30 p.m., on the same day, Lois Schenkel was driving on Valley Road in Harwinton. Schenkel noticed a car parked to the left side of the road in a driveway. As she passed the car, she made a careful observation of both the car and the driver. Schenkel described the car as being gray and in a dilapidated condition. The driver was described as being fifty-five years old with pushed back hair. Police later found a red rag where Schenkel spotted the parked car. Officer Edward Grabherr, of the Thomaston police department, presented Weeks with several photographs subsequent to the robbery in an attempt to identify the bank robber. Weeks was shown six photographs in three sittings without identifying the robber.

On January 20, 1983, two Waterbury detectives visited the Thomaston Savings Bank to ask the bank employees if any of three individuals had recently opened safety deposit boxes. This inquiry was part of the investigation of a 1982 robbery of the Colonial Bank in Waterbury. The Waterbury detectives individually interviewed the bank employees and showed each employee three photos. Upon being shown the three photos, Weeks identified the defendant’s photo as the person who had committed the 1981 robbery of the Thomaston Savings Bank (hereinafter the Weeks identification). The Waterbury detectives were unaware of the robbery Weeks was referring to and, consequently, they did not understand her reaction.

On January 23, 1983, Grabherr showed LaBranche a photo array of seven white males, three of whom had mustaches. From this array, LaBranche positively identified the defendant as the driver of the car she saw at the bank the day of the robbery (hereinafter the LaBranche identification). Upon being shown the same array, Schenkel also identified the defendant as the man she saw in the car parked at the side of the road on the day of the robbery (hereinafter the Schenkel identification). All three witnesses made positive identifications in the courtroom.

I

In his first claim, the defendant maintains that the trial court erred in its charge to the jury. Specifically, the defendant asserts that the trial court’s charge on intent was “misleading, confusing and erroneous.” The end result of the trial court’s charge, according to the defendant, was that the jury was misled and confused, allowing conviction on a diluted standard of proof of the required intent for first degree robbery. No objection or exception to the charge was made at trial. In fact, the charge given by the trial court was specifically requested by the defendant. The defendant now seeks review of his claim under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

While we recognize that instructions which allegedly dilute the state’s burden of proof may implicate a defendant’s fundamental rights; State v. Perez, 10 Conn. App. 279, 283, 523 A.2d 508 (1987); our Supreme Court has held that “ ‘error induced by an appellant cannot be a ground for reversal and will not be reviewed. State v. Ross, 189 Conn. 42, 47, 454 A.2d 266 (1983); State v. Kish, 186 Conn. 757, 769, 443 A.2d 1274 (1982).’ State v. Hinckley, 198 Conn. 77, 81 n.2, 502 A.2d 388 (1985).” State v. Silveira, 198 Conn. 454, 467, 503 A.2d 599 (1986). Because the portion of the court’s charge involving specific intent was given exactly as the defendant requested, we hold that the defendant’s claim is not entitled to review.

II

A

THE WEEKS IDENTIFICATION

The defendant claims that the trial court should have suppressed the in-court and out-of-court identifications. The defendant asserts that the photographic identifications by the three state’s witnesses were the product of impermissibly suggestive police procedures, and, therefore, the end results were unreliable identifications. In moving to-suppress identification evidence, the defendant must prove that the identification by the witness was a result of an unconstitutional procedure. State v. Collette, 199 Conn. 308, 310, 507 A.2d 99 (1986). Our courts have used a two-pronged test to determine whether a particular identification procedure violated due process rights. State v. Amarillo, 198 Conn. 285, 291, 503 A.2d 146 (1986); State v. Farrar, 7 Conn. App. 149, 157, 508 A.2d 49, cert. denied, 200 Conn. 805, 512 A.2d 229 (1986). The first prong is to determine if the procedure was impermissively suggestive. The second prong focuses on whether the identification, although impermissively suggestive, was nonetheless reliable based upon an examination of the totality of the circumstances.

Simply stated, the defendant’s claim is that the identification procedure used by the Waterbury detectives was impermissively suggestive because it singled out the defendant. The record indicates that the Waterbury detectives showed Weeks three pictures and an explanation of their relevance to their investigation of the 1982 Waterbury robbery. The purpose of the presentations of the photographs was to assist Waterbury police in their search of the suspects in the Waterbury robbery. Waterbury police theorized that the suspects would use another bank’s safety deposit boxes to hold the stolen money, a common practice of bank robbers. The defendant claims that, armed with the knowledge that the three individuals whose photographs were shown were suspects in a similar crime, the likely conclusion was that one of the three robbed the Thomaston Savings Bank.

The defendant’s analysis is without merit because it assumes a connection between the Waterbury investígation and the Thomaston Savings Bank robbery. The trial court found that no such connection existed. In fact, the Weeks identification of the defendant was clearly unexpected. The record indicates that the Waterbury detectives were unaware of the April 10, 1981 robbery until Weeks’ identification.

In determining whether a particular procedure is suggestive, courts examine the circumstances surrounding the procedure. It is generally held that police procedures are suggestive where the circumstances surrounding the identification indicate “to the victim that she should positively identify the defendant.” State v. Gordon, 185 Conn. 402, 414, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982). In this case, Weeks’ identification of the defendant was clearly unexpected. The procedure used by the Waterbury police accidentally aided in the defendant’s identification.

This identification is analogous to an accidental confrontation between a witness and a defendant. Weeks’ identification of the suspect of the 1981 robbery was not the intended result nor was it a result considered by the Waterbury police. The courts have held that an accidental confrontation between a witness and a defendant does not result in a tainted identification. State v. Villafane, 171 Conn. 644, 657, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977). In State v. Anderson, 6 Conn. App. 15, 19-20, 502 A.2d 446 (1986), the witness spontaneously identified the defendant as he entered the police station. This court upheld the trial court’s ruling that the identification was not tainted and that the defendant’s due process rights were not violated by the admission of the evidence. The basis of our conclusion was that the witness was not asked to make an identification and the encounter was not prearranged. Similarly, in this case, Weeks was not asked to identify the person responsible for the April 10,1981 robbery, but rather was asked if any of the three individuals opened a safety deposit box. Additionally, there was no evidence that the identification was prearranged. One of the Waterbury detectives testified that he had no knowledge of the April 10,1981 robbery. Under these circumstances, the court was correct in concluding that the identification was not impermissively suggestive.

Even if we were to find that the identification procedure was impermissively suggestive, Weeks’ identification could nevertheless be admissible at trial. The focus of this next step of inquiry is whether the identification was reliable because reliability is the “linchpin” in determining the admissiblity of identification evidence. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). “[I]n determining the reliability of an identification, we must consider whether under the ‘totality of circumstances’ the identifications were reliable.” State v. Theriault, 182 Conn. 366, 373, 438 A.2d 432 (1980). This constitutional test for reliability requires the trial court to consider “ ‘the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.’ Manson v. Brathwaite, supra, 114 . . . .” State v. Piskorski, 177 Conn. 677, 742, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); see also Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).

In applying the test to Weeks’ out-of-court identification, we find sufficient evidence to conclude that the identification was reliable. Weeks’ contact with the defendant lasted only one and one-half to two minutes and she stared at his face for only fifteen seconds. Yet, our Supreme Court has held that “a good hard look will pass muster even if it occurs during a fleeting glance.” State v. Ledbetter, 185 Conn. 607, 615, 441 A.2d 595 (1981). The second factor, the witness’ degree of attention, significantly favors the reliability of this identification. Weeks had taken a course on loss prevention which taught her what to do in this situation. She stared directly at the defendant and forced herself to remember his face. Adding to Weeks’ degree of attention is the fact that she was the victim and not a “ ‘mere spectator to the incident.’ ” In re Juvenile Appeal (88-EF), 190 Conn. 428, 436-37, 461 A.2d 957 (1983). Moreover, the fact that the composite drawn by the officer after hearing Weeks’ description closely resembled the defendant indicates that the identification was reliable. Finally, the fact that Weeks identified the defendant without hesitation twenty-one months after the robbery, further adds to the reliability of the identification.

B

THE LABRANCHE AND SCHENKEL IDENTIFICATIONS

We find no merit in the claim that the identification procedure used by Grabherr with LaBranche and Schenkel was impermissively suggestive. “It has been generally recognized that the presentation of several photographs to witnesses, including that of the suspect ... is by itself a nonsuggestive and constitutionally acceptable practice, in the absence of any unfairness or other impropriety in the conduct of the exhibit.” State v. Hafner, 168 Conn. 230, 237, 362 A.2d 925, cert. denied, 423 U.S. 851, 96 S. Ct. 95, 46 L. Ed. 2d 74 (1975). In addition, we do not find merit in the defendant’s claim that the identification process was impermissively suggestive because three of the seven photographs portrayed white males with moustaches. The photographic array used in this case is distinguishable from a situation where the photograph of the defendant alone was emphasized. Cf. State v. Small, 1 Conn. App. 584, 474 A.2d 460 (1984). We have recognized that “[a]ny array composed of different individuals must necessarily contain certain differences.” State v. Vaughn, 199 Conn. 557, 564, 508 A.2d 430 (1986).

Under the totality of the circumstances, both LaBranche’s and Schenkel’s identifications of the defendant were reliable. LaBranche had an unobstructed view of the defendant for five minutes. Moreover, her description matched the description by Weeks. There is a question, however, of LaBranche’s inability to describe the defendant at the first trial. The defendant suggests that the witness’ inability to describe the defendant at the first trial effects the admissibility of the identification. Our Supreme Court’s ruling in State v. Perez, 198 Conn. 68, 75-76, 502 A.2d 368 (1985), firmly establishes that a witness’ prior uncertainty goes only to the weight of the in-court subsequent identification and not to its admissibility. Thus, LaBranche’s prior inability to identify the defendant affects only the weight to be given to the identification, and not its admissibility. The identification by Schenkel was similarly reliable. Schenkel observed the defendant in his cqr from a frontal view as she passed him. The description Schenkel reported to the police matched that given by Weeks and LaBranche. The evidence clearly demonstrates that there was no error in the trial court’s ruling that the photographic array was not impermissively suggestive.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in pertinent part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he . . . (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver ... or other firearm . . . .”

       It is clear from the record that the court’s entire charge, as given, was practically verbatim to that requested by the defendant. Moreover, the section that the defendant now claims was erroneous is precisely what the defendant requested. The trial court’s charge on intent was as follows: “The crime requires proof of specific intent before a defendant can be convicted. Specific intent, as the term implies, means more than the general intent to commit the act. To establish specific intent, the state must prove that the defendant knowingly did an act which the law forbids, purposely intending to violate the law.”


author: Per Curiam:.

text:
    Alan E. Green et al. v. Charles DeWeise et al.
    (5327)
    Dupont, C. J., Borden and Daly, Js.
    Argued May 6
    decision released May 11, 1987

      James T. Flaherty, for the appellants (defendants).

      Joseph A. Moniz, with whom, on the brief, were George M. Purtill and Steven M. Greenspan, for the appellees (plaintiffs).
   Per Curiam:.

There is no error.


author: Per Curiam.

text:
    Jeffrey K. Tallman et al. v. Frank P. Gawel et al.
    (5207)
    Borden, Spallone and Daly, Js.
    Argued April 8
    decision released May 27, 1987

      Joseph F. Keefe, for the appellants (plaintiffs).

      Alfred P. Forino, for the appellees (defendants).
   Per Curiam.

In this suit for specific performance of an alleged contract for the sale of real estate, the plaintiffs appeal from the judgment for the defendants following the granting by the trial court of the defendants’ motion to strike the complaint. The basis of the trial court’s decision on the motion to strike was that the documents in question did not satisfy the statute of frauds.

We have fully considered the plaintiffs’ claims on appeal. As disclosed with crystal clarity by the documents attached to the complaint and on which the plaintiffs rely, the defendants’ attorney, who was alleged to be their agent acting with authority “to conclude a sale,” was not exercising any such authority by his signature on the cover letter. This dispositive conclusion is buttressed by reference to the proposed, unsigned contract to which the attorney’s cover letter referred. That document contemplated only the signature of the defendants, not of their attorney. In view of these undisputed documents, none of the allegations of the complaint, taken either singly or together, is susceptible of proof that the attorney’s signature on the cover letter was intended to be a signature of the defendants sufficient to satisfy the statute of frauds.

There is no error.


text:
    Antonios Koskerides et al. v. American Motorists Insurance Company et al.
    (5150)
    Hull, Borden and Spallone, Js.
    Argued April 9
    decision released May 26, 1987

      Robert M. Davidson, with whom were James P. Driscoll and, on the brief, Thomas M. Conroy, for the appellants (plaintiffs).

      James R. Smith, for the appellee (named defendant).
   Per Curiam.

In this suit by the plaintiff mortgagees against the named defendant, the fire insurer of the property subject to the plaintiffs’ mortgage, the plaintiffs appeal from the judgment of the trial court for the defendant. Having fully considered the claims of the plaintiffs, we are persuaded that the case is controlled by Burritt Mutual Savings Bank v. Transamerica Ins. Co., 180 Conn. 71, 428 A.2d 333 (1980), and that the trial court correctly read that controlling precedent.

There is no error.

       There were also two individual defendants who were cited in as defendants in the trial court. They are not involved in this appeal. We refer herein to the named defendant as the defendant.


text:
    Ruth B. Coxe, Administratrix (Estate of Samuel Coxe) v. John C. Driscoll, Conservator (Estate of Adrien Gelinas), et al.
    (4719)
    Dupont, C. J., Hull and Spallone, Js.
    Submitted on briefs April 27
    decision released May 19, 1987

      Max F. Brunswick filed a brief for the appellant (plaintiff).

      Frank A. Manfredi and Raymond T. Trebisacci filed a brief for the appellees (defendants).
   Per Curiam.

The plaintiff appeals from the granting by the trial court of the defendants’ motion for summary judgment. The underlying action was a petition for a new trial based on newly discovered evidence.

The trial court, in its memorandum of decision, concluded that the petition for a new trial was an attempt to retry a prior action for legal malpractice without having taken an appeal from the judgment therein, under the guise of claiming newly discovered evidence. It further concluded that no relevant or material fact was placed in issue, and that the defendant was entitled to judgment as a matter of law.

Our review of the record and the affidavits and supporting documents filed with the defendants’ motion for summary judgment fully supports the court’s finding that there was no genuine issue as to any material fact and that the defendant was entitled to judgment as a matter of law. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984); Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978).

There is no error.


text:
    State of Connecticut v. Benjamin Gonzalez
    (4923)
    Borden, Bieluch and Schaller, Js.
    Argued May 5
    decision released June 1, 1987

      Howard I. Gemeiner, for the appellant (defendant).

      Leah Hawley, deputy assistant state’s attorney, with whom, on the brief, was Steven Weiss, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals from the judgment of conviction, after a jury trial, of larceny in the fifth degree in violation of General Statutes § 53a-125 (a), criminal mischief in the second degree in violation of General Statutes § 53a-116, possession of burglar’s tools in violation of General Statutes § 53a-106, and burglary in the third degree in violation of General Statutes §§ 53a-103 and 53a-8. He claims that the court erred (1) in denying his motions to suppress and to dismiss, and (2) in denying his motion for judgment of acquittal, which was based on a claim of insufficiency of evidence. We have fully reviewed his claims. We conclude (1) that the motions to suppress and dismiss were properly denied, because the police had reasonable and articulable suspicion to stop the defendant’s car, and (2) that the evidence was sufficient to support the jury’s verdicts.

There is no error.


text:
    Peter Luzzi v. Ronald Cassidento et al.
    (4372)
    Dupont, C. J., Hull and Spallone,, Js.
    Argued June 3
    decision released June 8, 1987

      Joseph F. Keefe and Marc M. Schindelman, for the appellant (named defendant).

      Aaron P. Slitt, for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    Michael J. Hines et al. v. Nicholas Puglio
    (5528)
    Borden, Daly and Bieluch, Js.
    Argued June 10
    decision released June 12, 1987

      Linda R. Stark, with whom was Anthony T. Varone, for the appellant (defendant).

      Frederick S. Ury, with whom, on the brief, was Jessica L. Braus, for the appellees (plaintiffs).
   Per Curiam.

There is no error.


text:
    Isaac Parham v. George D. Bronson, Warden
    (5709)
    Hull, Spallone and Bieluch, Js.
    Argued June 4
    decision released June 12, 1987

      Stephen Fournier, special public defender, for the appellant (petitioner).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Frank S. Maco, assistant state’s attorney, for the appellee (respondent).
   Per Curiam.

The plaintiff appeals from the judgment of the court denying his petition for a writ of habeas corpus. The plaintiff claimed at the habeas hearing that he had been illegally sentenced in violation of a plea agreement he had entered into with the state’s attorney. Whether such a plea agreement existed was a question of fact to be determined by the habeas court. The court found that the defendant failed to prove the existence of any such agreement. This finding is supported by the record and is not clearly erroneous. Practice Book § 4061; State v. Stepney, 191 Conn. 233, 239, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).

There is no error.


text:
    Linwood Hicks v. George D. Bronson, Warden
    (5395)
    Dupont, C. J., Hull and Borden, Js.
    Argued June 5
    decision released June 12, 1987

      John Lino Ponzini, for the appellant (petitioner).

      Carolyn K. Longstreth, deputy assistant state’s attorney, with whom was Steven M. Sellers, assistant state’s attorney, for the appellee (respondent).
   Per Curiam.

The petitioner in this habeas corpus case appeals, following a grant of certification by the trial court, from the judgment rendered by the trial court in favor of the respondent. We fully agree with the respondent that the petitioner’s sole claim on appeal is not reviewable by us because the petitioner did not properly present it to the trial court, which also declined to rule on it for the same reason. The trial court did address and reject those claims of the petitioner which were raised by his petition. He does not take issue with the determination of those claims. The sole claim pressed on appeal, however, was not within the allegations of the petition, even read broadly, and was only presented to the trial court in the petitioner’s posttrial brief. Thus, the respondent had no timely notice that the claim was being litigated, and had no opportunity to introduce evidence to counter the claim. Moreover, even were we to review the petitioner’s claim, on the basis of the record available to us we would conclude that it is without merit.

There is no error.


text:
    State of Connecticut v. Robert Lewis Hyde
    (5164)
    Dupont, C. J., Hull and Spallone, Js.
    Argued June 3
    decision released June 12, 1987

      Guy L. DePaul, special public defender, for the appellant (defendant).

      Susann E. Gill, deputy assistant state’s attorney, with whom was Brian E. Cotter, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant challenges the constitutional validity of identification procedures used by the state. We have afforded the defendant’s claims of error the appropriate scope of review, and we find nothing to support the defendant’s contention that the procedures were impermissibly suggestive. See, e.g., Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); State v. Hamele, 188 Conn. 372, 377, 449 A.2d 1020 (1982); State v. DeJesus, 7 Conn. App. 309, 315, 508 A.2d 463 (1986).

There is no error.


text:
    Malcolm T. Arenburg, Jr. v. Farmholme, Inc., et al.
    (5091)
    Dupont, C. J., Borden and Bieluch, Js.
    Argued June 11
    decision released June 12, 1987

      Richard H. Kosinski, for the appellant (plaintiff).

      Raphael Korff, for the appellee (named defendant).
   Per Curiam.

There is no error.


text:
    Kenneth Haverly et al. v. Violet D’Alton et al.
    (5377)
    Dupont, C. J., Borden and Spallone, Js.
    Submitted on briefs June 1
    decision released June 19, 1987

      William T. Barrante filed a brief for the appellants (defendants).

      Alfred P. Forino filed a brief for the appellees (plaintiffs).
   Per Curiam.

We have scrutinized the record and briefs submitted with this appeal. After affording the defendants’ claims of error the appropriate scope of review, we find them to be without merit.

There is no error.


text:
    Nancy M. Green v. Russell M. Green
    (5022)
    Borden, Spallone and Daly, Js.
    Argued June 12
    decision released June 19, 1987

      Donald R. Beebe, for the appellant (defendant).

      Lloyd L. Langhammer, with whom, on the brief, was Jeffrey W. Hill, for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    General Sales and Construction Company, Inc., et al. v. Apollo Electric Company, Inc., et al.
    (3893)
    Borden, Daly and Bieluch, Js.
    Argued June 9
    decision released July 7, 1987

      Alex Andrew Knopp, for the appellants (named plaintiff et al.).

      Carolyn W. Kone, assistant corporation counsel, with whom, on the brief, was Charles Albom, corporation counsel, for the appellee (defendant city of New Haven).
   Per Curiam.

The plaintiffs appeal from the judgments of the trial court rendered in favor of two of the defendants, namely, the city of New Haven and Yvonne Edwards. As to the defendant city of New Haven, the judgment of the trial court must stand. The plaintiffs’ claims on appeal ignore the facts found by the trial court. Those facts, which are supported by the evidence and are not clearly erroneous, are fatal to the plaintiffs’ claims.

As to the defendant Yvonne Edwards, the trial court erred by failing to give proper effect to the default rendered against her for her failure to appear and defend at the trial. See DeBlasio v. Aetna Life & Casualty Co., 186 Conn. 398, 400, 441 A.2d 838 (1982); Ratner v. Willametz, 9 Conn. App. 565, 574-75, 520 A.2d 621 (1987); Vetter v. Technical Management, Inc., 1 Conn. App. 282, 285, 471 A.2d 653 (1984). The trial court’s finding that the named defendant, Apollo Electric Company, Inc., is indebted to the plaintiffs in the amount of $38,809.96, including interest to January 8, 1985, and $5000 attorney’s fees, is therefore applicable to Yvonne Edwards. Thus, the court should have rendered judgment on the default in favor of the plaintiffs and against the defendant Yvonne Edwards, in that amount.

There is error in part, the judgment is set aside as to the defendant Yvonne Edwards and the case is remanded with direction to render judgment in favor of the plaintiff against the defendant Yvonne Edwards in the amount of $38,809.96, plus interest from January 8,1985, and attorney’s fees in the amount of $5000.


author: LAVEME, J.

text:
    STATE OF CONNECTICUT v. ROSS V.

    (AC 28251)
    Lavine, Beach and Hennessy, Js.

      Argued May 21
    officially released August 26, 2008

      Joseph A. Jaumann, special public defender, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom were Patricia M. Froehlieh, state’s attorney, and, on the brief, Bonnie R. Bentley, assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

LAVEME, J.

The defendant, Ross V., appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1) and two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that the trial court improperly (1) admitted constancy of accusation and impermissible hearsay evidence and (2) denied his motion for a continuance to obtain new counsel. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 2001, the then fourteen year old victim moved to East Hartford to live with her mother. The defendant, at that time, was married to the victim’s older sister. When the mother was unable to enroll the victim in the East Hartford school system, the defendant offered to enroll her at a school close to his residence. The victim moved into the defendant’s house to attend the school, and shortly afterward they began having sexual intercourse. They had intercourse multiple times until the victim moved out in April, 2002.

The defendant was arrested pursuant to a warrant on June 26, 2003. Also on June 26, 2003, he admitted to the intercourse in a signed, sworn statement. He ultimately was charged with two counts of sexual assault in the second degree in violation of § 53a-71 (a) (1) and two counts of risk of injury to a child in violation of § 53-21 (a) (2). After a jury trial, he was found guilty on all four counts and sentenced to ten years in prison. This appeal followed.

I

The defendant’s first claim is that the court abused its discretion in admitting the testimony of the victim’s mother and sister because it was hearsay that fell outside the scope of the constancy of accusation doctrine established in State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996) (en banc). We decline to review this claim because the defendant waived any objection to the testimony at the trial.

The following portions of the state’s direct examination are relevant to the resolution of the defendant’s claim. After the victim testified that she had informed her mother and sister about her sexual relationship with the defendant, the prosecutor conducted a direct examination of her mother:

“[The Prosecutor]: Did she tell you where they had sex?
“[The Witness]: Yes.
“[The Prosecutor]: What did she tell—
“[Defense Counsel]: Objection, Your Honor. I don’t think this is a permissible hearsay.
“[The Prosecutor]: State v. Troupe, [supra, 237 Conn. 284], Your Honor, constancy.
“[Defense Counsel]: That’s the limitation. I would request an instruction to that effect.
“The Court: All right. Let’s get through the line of questioning, and I’ll give an instruction, okay?
“[Defense Counsel]: Yes, sir.”

The victim’s mother proceeded to testify about the fact that the victim reported what had taken place between her and the defendant. At the conclusion of the mother’s direct examination, the court instructed the jury on the use of constancy of accusation testimony. The defendant took no exception to the limiting instruction.

After the mother’s testimony, the prosecutor conducted a direct examination of the victim’s sister. When the prosecutor asked the sister: “What did [the victim] tell you about her and [the defendant] ?” defense counsel again objected on the ground of hearsay. The prosecutor replied: “It’s still State v. Troupe, [supra, 237 Conn. 284], Your Honor,” and defense counsel replied, “Yes, I just wanted to make sure we—.” The sister then testified as to the time and place of the reported abuse. When it gave its general charge, the court again instructed the jury on the use of constancy of accusation evidence without any objection from defense counsel.

We conclude that the defendant waived his claim that the court improperly admitted hearsay that fell outside of the Troupe constancy exception. “Waiver consists of the intentional abandonment or voluntary relinquishment of a known right. . . . [It] involves the idea of assent, and assent is an act of understanding. . . . [W]aiver does not have to be express, but may consist of acts or conduct from which waiver may be implied. In other words, waiver may be inferred from the circumstances if it is reasonable to do so.” (Citations omitted; internal quotation marks omitted.) Statewide Grievance Committee v. Brown, 67 Conn. App. 183, 188, 786 A.2d 1140 (2001), cert. denied, 259 Conn. 919, 791 A.2d 568 (2002).

After counsel objected to the testimony at issue from the victim’s mother and sister, the prosecutor stated that the witnesses’ testimony was offered for constancy purposes, and defense counsel agreed to its admission and even requested jury instructions to that effect. Counsel did not object to the court’s jury instructions on the use of constancy evidence. See State v. Fabricatore, 89 Conn. App. 729, 738-40, 875 A.2d 48 (2005) (defendant implicitly waived claim when he agreed to court’s curative instructions without objecting or taking exception to them), aff'd, 281 Conn. 469, 915 A.2d 872 (2007); see also State v. Kelly, 106 Conn. App. 414, 427-28, 942 A.2d 440 (2008) (defense counsel’s acquiescence to introduction of constancy of accusation evidence was waiver of claim). “The waiver . . . does not have to be express, but may be implied from the acts or conduct of the defendant.” State v. Ramos, 201 Conn. 598, 604, 519 A.2d 9 (1986). The defendant agreed to the admission of the testimony for constancy purposes and may not now resuscitate his earlier hearsay objection. “Although we have characterized the constancy of accusation doctrine as an exception to the hearsay rule . . . [constancy evidence is properly viewed as a peculiar species of evidence . . . admissible only to assist the jury in evaluating the credibility of the alleged victim and not to prove the truth of the facts recited . . . .” (Citations omitted; internal quotation marks omitted.) State v. Troupe, supra, 237 Conn. 290-91 n.7. We therefore conclude that the defendant waived his claim that the court abused its discretion by improperly admitting hearsay that fell outside the scope of the constancy of accusation exception.

II

The defendant’s second claim is that the court abused its discretion by denying his request for a continuance. Specifically, the defendant asserts that his request was reasonable and that the denial substantially prejudiced his ability to defend himself because his counsel’s performance fell below the standard for effective assistance of counsel. We conclude that the court did not abuse its discretion in denying the request for a continuance.

The following facts are relevant to our resolution of the defendant’s claim. In September, 2004, attorney Robert C. McCoy was appointed as a special public defender to represent the defendant. Prior to requesting a continuance, the defendant appeared in court with McCoy sixteen or seventeen times. The jury selection commenced on June 6, 2006, and the defendant orally requested a continuance on July 11,2006, shortly before the end of the state’s case-in-chief. He based the request on what he perceived to be his counsel’s lack of preparation, inability to manage the case, personal problems and failure to cross-examine key state’s witnesses long enough. The defendant further stated that he had contacted a private attorney and that his father had pledged financial assistance in retaining her. He admitted, however, that the attorney was on vacation and had not yet agreed to take his case.

The court orally denied the defendant’s request for a continuance, specifically noting that the defendant had failed to show the “great need” required for a last minute change of counsel under State v. Beaulieu, 164 Conn. 620, 627, 325 A.2d 263 (1973) (“last-minute requests for change of counsel, absent some showing of great need, should be refused” [emphasis added]). The court stated that the defendant’s mere dissatisfaction with his counsel did not demonstrate “great need,” his desire that counsel cross-examine each witness “for days” was unrealistic and the jury could be lost if the trial was continued until the defendant met with a private counsel upon her return from a vacation.

“The determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. ... A reviewing court is bound by the principle that [e]very reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made. ... To prove an abuse of discretion, an appellant must show that the trial court’s denial of a request for a continuance was arbitrary. . . . There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.'” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Hamilton, 228 Conn. 234, 239-40, 636 A.2d 760 (1994). After the commencement of trial, neither a right to be represented by counsel of choice nor a right to due process entitle a defendant to a continuance on demand. Id., 239.

Among the factors that may enter into the court’s exercise of discretion in considering a request for a continuance are “the timeliness of the request for continuance; the likely length of the delay . . . the impact of delay on the litigants, witnesses, opposing counsel and the court; the perceived legitimacy of the reasons proffered in support of the request . . . the timing of the request; the likelihood that the denial would substantially impair the defendant’s ability to defend himself; [and] the availability of other, adequately equipped and prepared counsel to try the case . . . .” Id., 240. “We are especially hesitant to find an abuse of discretion where the court has denied a motion for continuance made on the day of the trial.” (Internal quotation marks omitted.) State v. Calderon, 82 Conn. App. 315, 320, 844 A.2d 866, cert. denied, 270 Conn. 905, 853 A.2d 523, cert. denied, 543 U.S. 982, 125 S. Ct. 487, 160 L. Ed. 2d 361 (2004). “In order to work a delay by a last minute [replacement] of counsel there must exist exceptional circumstances.” (Internal quotation marks omitted.) State v. Hamilton, supra, 228 Conn. 239.

In light of the factors set out in Hamilton and Calderon, we cannot conclude that the court abused its discretion. The court acted within its discretion when it considered the potential jury loss if the trial was continued so that the defendant could meet with an attorney who had not yet agreed to take his case. See id., 241. The court also acted entirely within its discretion in denying a request that was submitted five days into the evidence and after the state had almost completed its case-in-chief. See State v. Calderon, supra, 82 Conn. App. 320-21; State v. Ortiz, 40 Conn. App. 374, 386, 671 A.2d 389 (motion for continuance denied when witnesses already subpoenaed and six jurors selected), cert. denied, 236 Conn. 916, 673 A.2d 1144 (1996). We conclude that the court acted within its discretion in light of the untimely request, the absence of new counsel prepared and willing to take over the case and the risk of losing jurors.

Finally, as part of his argument that the court improperly failed to grant a continuance, the defendant asserts that the court abused its discretion when it failed to evaluate the effectiveness of his counsel pursuant to Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). He asserts that a Strickland analysis should have been factored into the court’s review of the “legitimacy of the reasons proffered in support” of his request for a continuance. See State v. Hamilton, supra, 228 Conn. 239. Generally, a claim of ineffective assistance of counsel is addressed in a petition for a writ of habeas corpus, not at trial. See State v. Gonzalez, 205 Conn. 673, 684, 535 A.2d 345 (1987); but see State v. Scales, 82 Conn. App. 126, 129-30, 842 A.2d 1158 (claim of ineffective assistance of counsel resulting in guilty plea reviewed on direct appeal), cert. denied, 269 Conn. 902, 851 A.2d 305 (2004). We therefore conclude that the court did not abuse its discretion when it denied the defendant’s motion for a continuance to retain new counsel.

The judgment is affirmed.

In this opinion the other judges concurred.

       The constancy of accusation doctrine, codified in § 6-11 (c) of the Connecticut Code of Evidence, allows testimony from persons to whom the complainant in a sexual assault case reported the assault. See generally State v. Troupe, supra, 237 Conn. 284. Such testimony is limited to the fact and timing of the reported abuse. Id., 304. The defendant also argues that the testimony of the victim’s mother and sister was not proper constancy of accusation evidence under Troupe because they initially found out about the abuse by reading the victim’s diaries, and, therefore, the abuse was not “reported” to them. The defendant failed to raise this basis of his evidentiary claim at trial, and it is therefore unpreserved for our review. See State v. Epps, 105 Conn. App. 84, 98, 936 A.2d 701 (2007), cert. denied, 286 Conn. 903, 943 A.2d 1102 (2008).

       The waiver precludes us from reviewing the defendant’s claim, as requested, under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), because “unpreserved, waived claims, fail under the third prong of Golding . . . .” State v. Fabricatore, 281 Conn. 469, 482, 915 A.2d 872 (2007).

         In his brief, the defendant also claims that the court failed to consider certain representations made by the prosecutor at the time the court was considering the defendant’s motion for a continuance. The prosecutor represented that at a meeting of the judicial branch’s ad hoc criminal practice committee in March, 2005, she raised the issue of whether there was any oversight to the appointment of special public defenders. The prosecutor informed the court that following the meeting, she had provided the chief public defender, Gerard A. Smyth, copies of motions and transcripts relating to McCoy’s representation of the defendant. The prosecutor also told the court that Smyth concluded that it would be inappropriate to interfere with the attorney-client relationship existing between McCoy and the defendant. The court did not address the prosecutor’s representations in denying the defendant’s motion for a continuance. The defendant failed to request an articulation, asking the court whether it took the prosecutor’s comments into consideration when denying the motion for a continuance. We decline to review claims for which there is an inadequate record. See State v. Clark, 107 Conn. App. 819, 829, 947 A.2d 351, cert. granted on other grounds, 288 Conn. 916, 954 A.2d 187 (2008).