author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. OSCAR ABRAHAM
    (AC 20500)
    Lavery, C. J., and Schaller and Hennessy, Js.

      Argued December 12, 2000
    officially released July 24, 2001

      Mark Diamond, special public defender, for the appellant (defendant).

      Linda N. Howe, assistant state’s attorney, with whom, on the brief, was Robert Brennan, assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Oscar Abraham, appeals from the judgments of conviction, rendered following a jury trial, of two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-48, criminal possession of a pistol or revolver in violation of General Statutes (Rev. to 1997) § 53a-217c, carrying a pistol or revolver without a permit in violation of General Statutes (Rev. to 1997) § 29-35 (a) and possession of a weapon in a motor vehicle in violation of General Statutes (Rev. to 1997) § 29-38. On appeal, the defendant claims that the trial court improperly (1) denied his motion for a mistrial and impermissibly permitted the state to introduce evidence of his prior convictions and (2) denied his motion for a judgment of acquittal when the state failed to prove his guilt beyond a reasonable doubt. The defendant additionally contends that (1) he received ineffective assistance of legal counsel in violation of his federal and state constitutional rights, (2) his conviction of the crimes of robbery in the first degree and criminal possession of a pistol or revolver violated his constitutional right against double jeopardy, and (3) the trial court’s instructions to the jury improperly diminished the presumption of innocence standard and shifted the state’s burden of proof. Further, the defendant asserts in his supplemental brief that his conviction of the crime of conspiracy to commit robbery should be vacated because the codefendant in this joint trial was acquitted of the charge. We agree with the defendant’s claim on the conspiracy charge, but affirm the judgments of the trial court on all other claims.

The jury reasonably could have found the following facts. On October 21, 1998, at approximately 4:45 a.m., the defendant and another man alleged to be Israel Garcia purchased food from a grocery store that was owned by William Acevedo and Augberto Gonzalez. Shortly thereafter, Acevedo was confronted by two men dressed in black and wearing black masks. The taller of the two men, later found to be the defendant, held a pistol and stole $160 from Acevedo. When Acevedo resisted, the defendant fired the pistol in the direction of the ground and again in the direction of Acevedo as he fled to the back of the store. The other robber held a customer down on the floor at knifepoint.

William Reilly, a police officer from the Bridgeport police department, arrived at the grocery store to investigate the robbery. He discovered the shell casing of aten millimeter bullet on the floor of the store. After interviewing Acevedo, Reilly disseminated apolice broadcast with the description of the perpetrators and the automobile in which they drove. A few hours later, Officer Daniel Garcia of the Bridgeport police department spotted a motor vehicle that matched the description in the police broadcast. After a short chase, the driver of the motor vehicle pulled over, and the three occupants of the automobile ran away. The driver of the motor vehicle leaped over a fence and escaped, but left his jacket behind. The police officer described the driver as a tall Hispanic male. Inside the jacket pocket, Officer Garcia found a live ten millimeter bullet.

The two other occupants of the car were apprehended shortly thereafter. One of the passengers, a short male wearing dark clothing, was later identified as the codefendant Israel Garcia. The other passenger was identified as Denise Holland. Later that day, Holland provided a statement to the police in which she claimed that the defendant and the codefendant Garcia had robbed the grocery store.

Two days later, on October 23, 1998, while on patrol at a housing project, Brian Fitzgerald, a police officer from the Bridgeport police department, saw a maroon Acura that matched the description of an automobile on the police list of stolen vehicles. As the motor vehicle pulled into a parking space, Fitzgerald’s partner drove the patrol vehicle behind the maroon Acura to prevent it from moving. The four occupants of the maroon Acura got out of the automobile and began to ran away. Fitzgerald observed that the front passenger appeared to have an object in his waistband resembling the shape of a gun and ordered the man to stand still and to show his hands. The front passenger was later identified as the defendant.

The defendant ran away from Fitzgerald, pulled a black handgun out of his waistband and threw the weapon onto the ground. Witnessing the defendant dispose of the weapon, Fitzgerald picked up the handgun and, after a short chase, apprehended the defendant. The handgun was loaded with four rounds. Fitzgerald identified the man as the defendant and arrested him. The defendant was charged in two informations. In the first case, he was charged for the events that transpired when he was apprehended on October 23,1998, and, in the second case, for the events that transpired on October 21, 1998, when the grocery store was robbed.

The defendant and the codefendant Garcia were tried jointly before ajury regarding the charges ofrobberyand conspiracy to commit robbery. On November 19,1999, the defendant was found guilty of all charges and convicted of two counts of robbery in the first degree in violation of § 53a-134 (a) (2), conspiracy to commit robbery in the first degree in violation of § 53a-48, criminal possession of a pistol or revolver in violation of § 53a-217c, carrying a pistol or revolver without a permit in violation of § 29-35 (a) andpossession of a weapon in amotor vehicle in violation of § 29-38. The codefendant Garcia, however, was acquitted of all charges, including the charge of conspiracy to commit robbery. This appeal followed. Additional facts will be discussed where relevant to the claims raised.

I

During the pendency of this appeal, we ordered the parties to submit supplemental briefs to address whether this court should review under the plain error doctrine the issue of whether, in a joint trial, the conviction of one codefendant of the charge of conspiracy to commit robbery can stand when the other codefendant is acquitted of the charge. In his supplemental brief, the defendant contends that his conviction for conspiracy to commit robbery constitutes plain error and a legal impossibility when his codefendant in the joint trial was acquitted of the charge. We agree and conclude that the trial court committed plain error and, therefore, reverse the judgment of conviction of conspiracy to commit robbery in the first degree.

It is well established that this court will exercise plain error review under only the rarest of circumstances. “Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Wright, 207 Conn. 276, 288-89, 542 A.2d 299 (1988). This court may “in the interests of justice notice plain error not brought to the attention of the trial court. ” (Internal quotation marks omitted.) State v. Thornton, 55 Conn. App. 28, 31, 739 A.2d 271 (1999). “As explained in detail in Lynch v. Granby Holdings, Inc., [230 Conn. 95, 98, 644 A.2d 325 (1994)], our sua sponte invocation of plain error review is warranted when the following requirements are satisfied: (1) we discuss the rule and articulate why it is appropriate; and (2) we give the parties an opportunity to brief the issue.” State v. Washington, 39 Conn. App. 175, 179, 664 A.2d 1153 (1995).

“To prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . This doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Furthermore, even if the error is so apparent and review is afforded, the defendant cannot prevail on the basis of an error that lacks constitutional dimension unless he demonstrates that it likely affected the result of the trial. . . . State v. Caprilozzi, 45 Conn. App. 455, 462, 696 A.2d 380, cert. denied, 243 Conn. 937, 702 A.2d 644 (1997).” (Internal quotation marks omitted.) State v. Bradley, 60 Conn. App. 534, 546, 760 A.2d 520, cert. denied, 255 Conn. 921, 763 A.2d 1042 (2000). Here, the defendant was convicted of conspiracy to commit robbery, although his codefendant in this joint trial was acquitted of the same charge. We conclude that the defendant’s conviction constitutes a legal impossibility and that to permit his conviction to stand would not only be manifestly unjust but also would undermine the public’s confidence in these judicial proceedings. Accordingly, we will review this claim under the plain error doctrine.

When one alleged conspirator is convicted of conspiracy and his alleged coconspirator is acquitted, the situation is similar to that where a jury has rendered an inconsistent verdict. Just as we will overturn a legally inconsistent verdict when “the existence of the essential elements for one offense negates the existence of the essential elements for another offense of which the defendant also stands convicted”; State v. Hinton, 227 Conn. 301, 313, 630 A.2d 593 (1993); so, too, will we overturn a conspiracy conviction that is legally impossible because the acquittal of a codefendant negates the possibility of an agreement, which is an essential element of the conspiracy charge.

“To establish the crime of conspiracy under § 53a-48 ... it must be shown that an agreement was made between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. The state must also show intent on the part of the accused that conduct constituting a crime be performed. . . . Further, the prosecution must show both that the conspirators intended to agree and that they intended to commit the elements of the underlying offense.” (Internal quotation marks omitted.) State v. Green, 62 Conn. App. 217, 223, 774 A.2d 157 (2001), quoting State v. Booth, 250 Conn. 611, 657-58, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000). Our Supreme Court “held in States v. Grullon, 212 Conn. 195, 199, 562 A.2d 481 (1989), that our conspiracy statute is bilateral in nature: ‘Our examination of the definition of the crime of conspiracy in § 53a-48 convinces us that the legislature has determined that conspiracy requires a showing that two or more coconspirators intended to engage in or cause conduct that constitutes a crime.’ ” State v. Robinson, 213 Conn. 243, 250, 567 A.2d 1173 (1989).

In Robinson, our Supreme Court addressed the question: “When only two persons are alleged to have conspired to commit a crime and they are tried separately, does the acquittal on the charge of conspiracy of the first person tried bar the state from prosecuting the remaining conspirator for that same conspiracy?” Id., 251. In answering this question in the affirmative, our Supreme Court first concluded that a defendant cannot be convicted of conspiracy in the same proceeding in which all of the alleged coconspirators are acquitted. Id.

Our Supreme Court in Robinson stated that “[i]t has traditionally been held that a single conspirator may not be convicted in the same proceeding or prosecution in which all of the alleged coconspirators are acquitted.

. . . ‘The apparent basis for the traditional rule is the notion that the acquittal of all but one potential conspirator negates the possibility of an agreement between the sole remaining defendant and one of those acquitted of the conspiracy and thereby denies, by definition, the existence of any conspiracy at all.’ ” (Citation omitted.) Id. “The gravamen of the crime of conspiracy is the unlawful combination and an act done in pursuance thereof, not the accomplishment of the objective of the conspiracy. . . . Because the essence of conspiracy is the mental confederation of two or more persons, the crime is in every sense indivisible.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 252-53. Further, this court and our Supreme Court have on several occasions stated that the conviction of one defendant and the acquittal of the other in a joint trial of two alleged coconspirators constitutes a legal impossibility and cannot stand. See State v. DeCaro, 252 Conn. 229, 244 n.13, 425 A.2d 1022 (1997); State v. Stevens, 178 Conn. 649, 654, 425 A.2d 104 (1979); State v. Milner, 46 Conn. App. 118, 122 n.2, 699 A.2d 1022 (1997).

The state contends that the import of the Robinson case does not apply to this situation and that the defendant’s conviction of conspiracy to commit robbery should stand because the acquittal of the alleged coconspirator Garcia does not negate the fact that another coconspirator existed and entered into a conspiracy to commit robbery with the defendant. In essence, the state argues that it was not required to prove the identity of the coconspirator to sustain a finding of guilty of conspiracy, and, therefore, the acquittal of Garcia does not eradicate the fact that the defendant entered into a conspiracy with someone else. To support its proposition, the state distinguishes this situation from that in Robinson by claiming that in Robinson, unlike in the present case, it was assumed that all potential conspirators had been charged. We are not persuaded.

The state prosecuted this case against both the defendant and the codefendant Garcia, jointly, as codefendants and coconspirators of the robbery of the grocery store on October 21, 1998. Here, the state charged only one person as a coconspirator, Garcia, and did not allege nor introduce evidence to establish that another person had engaged in a conspiracy to commit robbery with the defendant on October 21, 1998. During the trial, the state presented witnesses to prove that the defendant and Garcia had entered into a conspiracy to commit the robbery of the grocery store and then robbed the grocery store. Holland testified that in the early morning of October 21, 1998, she drove around in an automobile with the defendant and the codefendant Garcia, and that the defendant and Garcia purchased food from the grocery store. Further, Holland described that, when the defendant and Garcia returned to the automobile, they donned sweatshirts and ski masks and then reentered the grocery store. When the defendant and Garcia came back, they got into the automobile and quickly drove away. Acevedo, an owner of the grocery store that was robbed, testified that two men wearing ski masks, one short and one tall, had robbed the grocery store. Officer Garcia testified that he had pursued a vehicle that was wanted in connection with the robbery of the grocery store on October 21,1998. When the automobile pulled over, the driver of the car, a tall man, escaped, and the two passengers, the codefendant Garcia and Holland, were apprehended.

During closing arguments, the prosecutor detailed the evidence allegedly proving that the defendant and the codefendant Garcia had conspired to and had robbed the grocery store on October 21, 1998. In describing the evidence regarding the conspiracy count, the prosecutor stated, “Now, intent for conspiracy. They [the defendant and the codefendant] have to intended to have committed the robbery. And they both put on the hoodies [hooded sweatshirts] and the mask, and they go in there, and one has a gun and one has a knife.”

Here, for the defendant to have been legally convicted of conspiracy, the jury must have found that another person, namely, the codefendant Garcia, also was guilty of participating in the conspiracy. Garcia’s “culpability was thus an essential element of the defendant’s offense.” State v. Robinson, supra, 213 Conn. 253. Because Garcia was acquitted, he may not be considered as a coconspirator. See State v. Green, supra, 62 Conn. App. 221. The state failed to present any evidence to prove that anyone other than Garcia had conspired with the defendant to commit the robbery. Therefore, the record lacks any evidence of separate acts or circumstances to support an agreement to conspire between the defendant and anyone else. See id., 224. Accordingly, the defendant’s conviction of conspiracy to commit robbery must be set aside, as it constitutes a legal impossibility.

II

The defendant next claims that the court improperly denied his motion for a mistrial because evidence of his prior convictions had been admitted improperly. We do not agree.

The following facts are necessary for the disposition of this claim. Before the jury trial began, the state and the defendant entered into a stipulation that provided that the defendant lacked a pistol permit and registration on both October 21, 1998, and October 23, 1998, the date that he was arrested. Furthermore, the parties stipulated that the defendant had prior convictions for carrying a pistol without a permit on February 18,1997, and for possession of narcotics on March 22, 1995. Certified copies of the defendant’s prior convictions were then introduced into evidence. When the trial court questioned the defendant’s attorney as to whether he had any objection to the stipulations, the defendant’s attorney responded, “No, Your Honor. In fact, since we’ve discussed them, my understanding is that the certified copies will come in today, as well.”

During the trial, the state offered into evidence the certified copies of the defendant’s prior convictions and the defendant’s stipulation that he did not have a permit to carry a pistol. In response, the defendant’s attorney objected and requested a mistrial on the grounds that the introduction of certified copies of the defendant’s criminal record would unfairly prejudice the jury against him and because the defendant had not testified in the case. The trial court denied the defendant’s motion for a mistrial, and the stipulations were presented before the jury. The trial court then informed the juiy that it was to consider the stipulations “only with regard to that second information [the charge of criminal possession of a pistol or revolver in violation of § 53a-217c]

“In our review of the denial of a motion for a mistrial, we have recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. McIntyre, 250 Conn. 526, 533, 737 A.2d 392 (1999), quoting State v. Newsome, 238 Conn. 588, 628-29, 682 A.2d 972 (1996). The trial court possesses great discretion in determining whether to grant a motion for a mistrial. State v. Taft, 57 Conn. App. 19, 22, 746 A.2d 813, cert. granted on other grounds, 253 Conn. 909, 753 A.2d 942 (2000). On appeal, “we hesitate to disturb a decision not to declare a mistrial. . . . [W]e afford every reasonable presumption ... in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) State v. Davis, 51 Conn. App. 171, 176-77, 721 A.2d 146 (1998).

Pursuant to § 53a-217c, a prior conviction of a felony is an element of the crime of criminal possession of a pistol or revolver. Without presenting proof of a prior conviction here, a violation of § 53a-217c could not be established. See id., 180. “[AJlleging possession of a firearm [in this case a pistol or revolver] without reciting the prior criminal conviction would not set forth a cognizable criminal offense.” State v. Joyce, 45 Conn. App. 390, 405, 696 A.2d 993 (1997), appeal dismissed, 248 Conn. 669, 728 A.2d 1096 (1999).

This court has addressed on numerous occasions the issue of whether the introduction at trial of a prior criminal conviction to establish a violation of § 53a-217c results in substantial prejudice to a defendant or deprives a defendant of a fair trial. See State v. Taylor, 52 Conn. App. 790, 793-96, 729 A.2d 226 (1999); State v. Davis, supra, 51 Conn. App. 180-84; State v. Joyce, supra, 45 Conn. App. 403-405; State v. Banta, 15 Conn. App. 161, 166-72, 544 A.2d 1226, cert. denied, 209 Conn. 815, 550 A.2d 1086 (1988). In Joyce, we concluded that the defendant was not prejudiced or deprived of a fair trial because the jury was informed of his prior conviction through a stipulation and because the trial court advised the jury that it was to consider the prior conviction solely for purposes of establishing an element of the crime charged. State v. Joyce, supra, 405.

When analyzing whether a defendant was prejudiced by the introduction of evidence of prior convictions for purposes of establishing the elements of a violation of § 53a-217, this court utilizes five factors as set forth in Banta: “(1) the manner in which the evidence entered the case and the extent of the jury’s knowledge of the facts underlying the prior felony conviction, (2) the adequacy of any cautionary instructions given by the court, (3) the use of the prior felony evidence by the prosecution in argument to the jury, (4) the likelihood that the prior felony conviction evidence will inflame the passions of the jurors in light of the nature of the offenses charged and (5) the strength of the evidence against the defendant. See [State v. Banta, supra, 15 Conn. App. 170-71].” State v. Davis, supra, 51 Conn. App. 181-82.

The record and transcripts in this case lead us to conclude that the introduction of evidence of the defendant’s prior convictions did not prejudice the defendant, nor did it deprive him of a fair trial. Here, the jury learned of the defendant’s prior felony convictions by way of a stipulation and was presented with a copy of the defendant’s convictions for possession of narcotics and possession of a pistol. The jury did not receive any other information regarding the defendant’s prior convictions. The trial court informed the jury that it was to consider the defendant’s prior convictions only with regard to the charge of a violation of § 53a-217c. Further, during closing arguments the prosecutor referred only once to the prior convictions. The prosecutor stated that the stipulations of the prior convictions did not “say anything to [the defendant’s] character; that’s not the point of it. The point of that is that those are underlying elements in the crime of criminal possession of a firearm.” Additionally, given the cursory mention of the defendant’s prior convictions, it is unlikely that the jurors’ passions were inflamed to such a degree as to unduly prejudice the defendant.

Finally, the evidence that the state presented against the defendant was neither sparse nor unconvincing. Acevedo testified that the defendant purchased goods from him prior to the robbery and that the robber resembled the defendant. Holland identified the defendant as one of the men who had robbed the grocery store. Further, the pistol that the defendant disposed of on October 23, 1998, was the same pistol as the one used in the robbery on October 21,1998, and a bullet from the pistol was also found in the defendant’s jacket pocket. Given the substantial evidence presented against the defendant, it is extremely unlikely that the stipulation of the defendant’s prior felony conviction prejudiced the jury so as to affect the outcome of the case.

On the basis of the foregoing, we conclude that the trial court did not abuse its discretion in denying the defendant’s motion for a mistrial.

Ill

The defendant next contends that the court improperly denied his motion for a judgment of acquittal because the state failed to present sufficient evidence to support his conviction of robbery in the first degree and conspiracy to commit robbery in the first degree. We disagree.

“In reviewing a sufficiency [of the evidence] claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994), quoting State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993).

“The evidence must be construed in a light most favorable to sustaining the juiy’s verdict. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable.” (Citations omitted; internal quotation marks omitted.) State v. Ingram, 43 Conn. App. 801, 809, 687 A.2d 1279 (1996), cert. denied, 240 Conn. 908, 689 A.2d 472 (1997), quoting State v. Ford, 230 Conn. 686, 692, 646 A.2d 147 (1994). “[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Boykin, 27 Conn. App. 558, 563-64, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992).

To convict a defendant of the crime of robbery in the first degree, the state must prove beyond a reasonable doubt that “in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, [the defendant] 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 . . . .” General Statutes § 53a-134 (a). “The state [has] the burden of proving beyond a reasonable doubt the defendant’s identity as the robber . . . and the issue of the identity of the defendant as the robber was one of fact for the jury.” (Citation omitted.) State v. Ingram, supra, 43 Conn. App. 810-11.

In the present case, ample evidence exists supporting the juiy’s verdict of guilty on the charge of robbery in the first degree. Various witnesses provided testimony linking the defendant to the robbery at the grocery store on October 21,1998. The victim, Acevedo, testified that the defendant, who wore black clothing, purchased food from him early in the morning of October 21,1998, and that the robber who had entered a few minutes later was of a similar height and also was dressed in all black, with the addition of a black mask. Holland testified that she drove around in a grey station wagon with tinted windows with the defendant and the codefendant Garcia throughout the early hours of October 21, 1998, before, during and after the robbery. She described how after purchasing food from the victim’s store, the defendant returned to the motor vehicle, dressed himself in a dark hooded sweatshirt and ski mask, and reentered the victim’s grocery store. A few minutes later the defendant came back out and drove away from the scene. She noticed a pistol resting on the seat beside the defendant. Further, Marshall Robinson, a firearm and tool mark expert examiner, testified that the spent bullet shell discovered on the floor of the victim’s grocery store and the live bullet found in the defendant’s jacket pocket were both at one time chambered in the pistol that the defendant possessed on October 23, 1998. Viewing the evidence in a light most favorable to upholding the jury’s verdict, we con-elude that the evidence was sufficient to support the verdict of guilty of robbery in the first degree.

In challenging the verdict of guilty of the robbery charges, the defendant argues that the jury improperly relied on the testimony of Holland because it was untrustworthy. The defendant further contends that the jury improperly relied on the testimony of other state witnesses due to their lack of personal knowledge of the robbery incident.

“It is the [jury’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses.” (Internal quotation marks omitted.) State v. Marsala, 44 Conn. App. 84, 96, 688 A.2d 336, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997), quoting State v. Martin, 38 Conn. App. 731, 744, 663 A.2d 1078 (1995), cert. denied, 237 Conn. 921, 676 A.2d 1376 (1996). It is the right and duty of the jury to determine whether to accept or to reject the testimony of a witness, and what weight, if any, to lend to the testimony of a witness and the evidence presented at trial. Nolan v. Nationwide Mutual Ins. Co., 60 Conn. App. 68, 73, 758 A.2d 432, cert. denied, 255 Conn. 920, 763 A.2d 1042 (2000). Accordingly, the jury was entitled to credit the testimony of the state’s witnesses.

On the basis of the foregoing, we conclude that sufficient evidence exists supporting the jury’s verdict of guilty on the charge of robbery in the first degree.

IV

The defendant next contends that he received ineffective assistance of trial counsel when his counsel (1) entered a plea of guilty to “the gun charges” without his consent, (2) failed to object at trial and to move for an acquittal on the charge of criminal possession of a firearm, (3) failed to raise the issue before the trial court that the conviction of robbery in the first degree and criminal possession of a pistol violated Ms constitutional rigM agamst double jeopardy and (4) failed to object to prosecutorial misconduct and errors that occurred during the trial. Because the defendant has improperly raised issues of meffective assistance of trial counsel before tMs court, we decline to address these claims.

“We have long held that the proper forum m wMch to address claims of meffective representation of counsel is m the habeas forum or in a petition for a new trial, rather than on direct appeal.” (Internal quotation marks omitted.) State v. Laracuente, 57 Conn. App. 91, 97, 749 A.2d 34, cert. denied, 253 Conn. 923, 754 A.2d 798 (2000), quoting State v. Jones, 46 Conn. App. 640, 660, 700 A.2d 710, cert. denied, 243 Conn. 941, 704 A.2d 797 (1997). “As our Supreme Court has stated, an ineffective assistance claim should be resolved, not in piecemeal fasMon, but as a totality after an evidentiary hearing m the trial court where the attorney whose conduct is in question may have an opportumty to testify.” (Internal quotation marks omitted.) State v. Laracuente, supra, 97. Therefore, we conclude that the defendant improperly brought this claim in his direct appeal and that this issue should be raised in a petition for a writ of habeas corpus. State v. Johnson, 57 Conn. App. 156, 158 n.4, 748 A.2d 334, cert. denied, 253 Conn. 912, 754 A.2d 162 (2000).

V

The defendant also claims that certain instructions to the jury regarding the jury’s duty violated his constitutional rights because the instructions were unfairly balanced in favor of conviction. The defendant additionally contends that the court’s charge to the jury diminished the presumption of innocence standard and thereby deprived him of a fair trial. We disagree.

When analyzing a claim of improper jury instructions, the standard of review to be applied is whether it is reasonably possible that the jury was misled by the challenged instructions. State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995). “In determining whether it was indeed reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . 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.” (Citations omitted; internal quotation marks omitted.) Id.

A

We first address the defendant’s claim that the trial court improperly emphasized the jury’s duty to convict. In State v. Walton, 227 Conn. 32, 62, 630 A.2d 990 (1993), our Supreme Court addressed a challenge to almost identical language contained in a jury instruction. In concluding that the instruction did not deprive the defendant of his due process rights, our Supreme Court stated: “[I]t would be preferable for a trial court either to omit those references entirely or frame the instructions so that the laudatory references are included with respect to both jury functions — acquittal as well as conviction. . . . That does not mean, however, that the defendants are correct in their characterization of the message the language in issue may have conveyed to the jury . . . .” Id., 63-64. Further, this court in several cases has upheld jury instructions containing substantially similar language, finding that such language “did not lessen the state’s burden to prove the defendant guilty beyond a reasonable doubt and did not undermine the presumption of innocence.” State v. Lopez, 37 Conn. App. 509, 515, 657 A.2d 647, cert. denied, 234 Conn. 902, 660 A.2d 858 (1995); see State v. Bush, 33 Conn. App. 253, 265-66, 635 A.2d 820 (1993), cert. denied, 228 Conn. 923, 638 A.2d 37 (1994); State v. McFadden, 25 Conn. App. 171, 176-77, 593 A.2d 979, cert, denied, 220 Conn. 906, 593 A.2d 972 (1991).

After reading the challenged jury instruction in light of the charge in its entirety, we conclude that the charge did not mislead the jury regarding its duty, and thus the defendant cannot prevail. The portion of the instructions challenged by the defendant is a small part of a larger section of the jury charge that concerns the jury’s duty to view the evidence carefully and objectively, and to render a verdict based on its consideration of the evidence and the law. Immediately prior to the challenged instruction, the court instructed the jury that it was to “render a verdict of not guilty, if the facts and the law require such a verdict.” Shortly afterward, the court stated that “[t]he state is as much concerned as having an innocent person acquitted as having a guilty person punished. ... It is the sworn duty of the courts and the jurors to safeguard the rights of persons charged with a crime by respecting the presumption of innocence which the law imputes to every person charged with a crime.” Viewing the charge as a whole, we conclude that there is no reasonable possibility that the jury was misled. Therefore, the defendant’s claim must fail.

B

As for the defendant’s claim that the trial court diluted the presumption of innocence standard in the jury instructions, we conclude that the defendant has not preserved this claim for our review.

It is well established that this court is not required to review claims that were not properly preserved in the trial court. Practice Book § 60-5. “This court is not bound to review claims of error in jury instructions if the party raising the claim neither submitted a written request to charge nor excepted to the charge given by the trial court.” State v. Jones, 39 Conn. App. 563, 566-67, 665 A.2d 910, cert. denied, 235 Conn. 931, 667 A.2d 800 (1995); see Practice Book § 42-16. Further, the defendant fails to seek review of this claim under either plain error review or State v. Golding, supra, 213 Conn. 239-40. Because the defendant failed to take exception to the charge or to submit a written request regarding this charge, this issue is unpreserved and we will not review it.

VI

The defendant’s final claim is that the prosecutor’s comments during closing arguments improperly shifted the burden of proof onto the defendant. We decline to review this claim because it is unpreserved.

The defendant concedes that he failed to object to the prosecutor’s comments during closing arguments, yet argues that appellate review of this claim is warranted under due process principles. Because this claim is unpreserved, our review is limited to either plain error review; see Practice Book § 60-5; or review pursuant to the Golding doctrine. State v. Golding, supra, 213 Conn. 239-240; see Ghant v. Commissioner of Correction, 255 Conn. 1, 17, 761 A.2d 740 (2000). Here, the defendant failed to seek review under either the plain error doctrine or Golding. “In the absence of such a request, we have, in the past, declined to review a defendant’s claim under similar circumstances.” (Internal quotation marks omitted.) State v. Valinski, 61 Conn. App. 576, 585, 767 A.2d 746 (2001). Further, we note that “[t]he defendant cannot, by identifying isolated remarks [by the prosecutor in closing argument], set forth a claim of constitutional magnitude.” (Internal quotation marks omitted.) State v. Cox, 50 Conn. App. 175, 180, 718 A.2d 60 (1998), aff'd, 251 Conn. 54, 738 A.2d 652 (1999). Accordingly, we decline to review this claim.

The judgment in the second case is reversed only as to the conviction of conspiracy to commit robbery in the first degree and the case is remanded with direction to render judgment of not guilty of that crime and to vacate the sentence for the conspiracy conviction. In all other respects the judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes (Rev. to 1997) § 53a-217c (a) provides in relevant part: “A person is guilty of criminal possession of a pistol or revolver when he possesses a pistol or revolver, as defined in section 29-27, and (1) has been convicted of a felony or of a violation of subsection (c) of section 21a-279, section 53a-58, 53a-61, 53a-61a, 53a-62, 53a-63, 53a-96, 53a-175, 53a-176, 53a-178 or 53a-181d

       General Statutes (Rev. to 1997) § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. . . .”

       General Statutes (Rev. to 1997) § 29-38 provides in relevant part: “Any person who knowingly has, in any vehicle owned, operated or occupied by him, any weapon for which a proper permit has not been issued as provided in section 29-28 or section 53-206, or has not registered such weapon as required by section 53-202, as the case may be, shall be fined not more than one thousand dollars or imprisoned not more than five years or both, and the presence of any such weapon in any vehicle shall be prima facie evidence of a violation of this section by the owner, operator and each occupant thereof. . . .”

       During the pendency of this appeal, this court, sua sponte, ordered the parties to file supplemental briefs to address the following question: “Under the circumstances set forth in the above captioned case, wherein two defendants charged with conspiracy to commit robbery were tried together and one was found not guilty of conspiracy, do we review under the plain error doctrine the issue of whether, in a conspiracy case involving two conspirators, when one is acquitted of conspiracy, the charge of conspiracy can stand against the other? See State v. Robinson, 213 Conn. 243, 251, 567 A.2d 1173 (1989).”

       The suspicious motor vehicle that was the subject of events on October 23, 1998, was not the motor vehicle that the defendant drove away in after robbing the grocery store on October 21, 1998.

       In this joint trial, the codefendant Garcia was tried on the charges of two counts of robbery in the first degree and conspiracy to commit robbery based on the events that occurred at the grocery store on October 21,1998.

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. ...”

       The factual scenario in Robinson resembles the situation in the present case. The defendant in Robinson was charged with and found guilty of murder and of conspiracy to commit murder. At the defendant’s trial, the state alleged and presented evidence regarding one coconspirator. The sole alleged coconspirator, however, was acquitted of the conspiracy charge in a prior trial. Similarly, here, in this joint trial, the defendant and the only alleged coconspirator were tried jointly, yet the alleged coconspirator was acquitted and the defendant was found guilty of conspiracy.

       We note that “[c]onspirators need not all be charged in order to sustain a conviction of one of them for conspiracy.” State v. Shaw, 24 Conn. App. 493, 494 n.1, 589 A.2d 880 (1991). As will be discussed, however, this statement of law does not apply to the present situation because the state presented evidence regarding only one coconspirator.

       Practice Book § 42-43 provides in relevant part: “Upon motion of a defendant, the judicial authority may declare a mistrial at any time during the trial if there occurs during the trial an error or legal defect in the proceedings, or any conduct inside or outside the courtroom which results in substantial and irreparable prejudice to the defendant’s case. . . .”

       As can be found in the statute, proof of a prior felony conviction is not the only basis to establish a violation of § 53a-217c. In this case, however, the defendant’s prior felony convictions form the basis for his being charged with violating § 53a-217c.

       The defendant in Joyce actually was charged with criminal possession of a firearm or electronic defense weapon in violation of General Statutes (Rev. to 199V) § 53a-217 (a). The language and elements of § 53a-217 are very similar to those of § 53a-217c. Pursuant to General Statutes (Rev. to 1997) § 53a-217 (a), “[a] person is guilty of criminal possession of a firearm or electronic defense weapon when he possesses a firearm or electronic defense weapon and has been convicted of a capital felony, a class A felony, except a conviction under section 53a-196a, a class B felony, except a conviction under section 53a-86,53a-l 12 or 53a-196b, a class C felony, except a conviction under section 53a-87, 53a-152 or 53a-153, or a class D felony under sections 53a-60 to 53a-60c .... For purposes of this section, ‘convicted’ means having a judgment of conviction entered by a court of competent jurisdiction.”

       This court generally has employed the test as set forth in Banta in the context of a defendant’s appeal from the trial court’s denial of a motion to sever or bifurcate a trial. See State v. Taylor, supra, 52 Conn. App. 794; State v. Davis, supra, 51 Conn. App. 181-82; State v. Carpenter, 19 Conn. App. 48, 62-63, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989). Although this case involves a denial of a motion for a mistrial, an appeal from a denial of a motion for a mistrial and an appeal from a denial of a motion to sever both involve a similar evaluation of whether prejudice to the defendant occurred. Accordingly, we will apply the principles and rationale from Banta to the present situation.

       Our holding in part I of this opinion disposes of the defendant’s claim regarding the lack of evidence supporting his conviction of conspiracy to commit robbery.

       General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       The defendant also requests that this court review his double jeopardy claim separately from the ineffective assistance of counsel claim. The defendant concedes that he failed to raise the issue of double jeopardy before the trial court. In seeking our review of this claim, however, the defendant fails to request review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. “It is well established that generally this court will not review claims that were not properly preserved in the trial court. ... A defendant may prevail on a claim of constitutional error not preserved at trial, however, if the defendant satisfies the four part standard set forth in State v. Golding [supra, 239-40].” (Internal quotation marks omitted.) State v. Barnett, 53 Conn. App. 581, 598, 734 A.2d 991, cert. denied, 250 Conn. 918, 738 A.2d 659 (1999). Where a defendant fails to seek review of an unpreserved claim under either Golding or the plain error doctrine, this court will not examine such a claim. State v. Marsala, 59 Conn. App. 135, 143, 755 A.2d 965, cert. denied, 254 Conn. 948, 762 A.2d 905 (2000); State v. Barnett, supra, 598. Accordingly, we decline to review the defendant’s double jeopardy claim.

       The defendant challenges the following language contained in the trial court’s instructions to the jury: “These men [the defendants] rely upon you to consider carefully their claims and to evaluate carefully all of the evidence and to render a verdict of not guilty, if the facts and the law require such a verdict. The state of Connecticut and its people . . . look to you as sworn officers of the court to deal with the case fairly, firmly and honestly as strong-minded men and women with the interest placed in your hands as an arm of the court to weigh and uphold the law of the land by rendering a verdicl of guilty, if the facts and the law require such a verdict.” The defendant objected to the phrase “fairly, firmly,” and presently contends that those words improperly placed emphasis on the jury’s duty to convict in violation of his due process rights.

       The defendant challenges the following language: “The presumption of innocence does not have the effect of evidence itself. It’s only effect is to place upon the state the burden of proving the defendant guilty beyond a reasonable doubt.”

       Practice Book § 42-16 provides: “An appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of exception. The exception shall be taken out of the hearing of the jury.”

       Notwithstanding the fact that this issue is unpreserved, this court on numerous occasions has approved similar language regarding the presumption of innocence and has found that such language did not mislead the jury or diminish the presumption of innocence standard. See State v. Lee, 53 Conn. App. 690, 700-701, 734 A.2d 136 (1999); State v. Crosby, 36 Conn. App. 805, 814-15, 654 A.2d 371, cert. denied, 232 Conn. 921, 656 A.2d 669 (1995).

       The defendant contends that the following statements by the prosecutor during summation were improper: “With that said, this case is a very simple case. There was a robbery over at 741 East Main Street at Zaidas Market.
      . . . There is no evidence that a robbery did not take place”; and “[l]et’s go back to the 21st day of October when the robbery occurred. As I said earlier, there’s no dispute that arobbery took place. There’s been no evidence to show a robbery did not take place.”


source: Caselaw Access Project

author: LAVERY, C. J.

license: Public Domain

text:
    RONALD SURPRENANT v. JOHN BURLINGHAM
    (AC 20407)
    Lavery, C. J., and Foti and Daly, Js.

      Argued March 1
    officially released July 24, 2001

      Dennis A. Ferdon, for the appellant (plaintiff).

      Joel M. Fain, with whom, on the brief, was Mary J. Ambrogio, for the appellee (defendant).
   Opinion

LAVERY, C. J.

The plaintiff, Ronald Surprenant, appeals from the judgment rendered by the trial court in favor of the defendant, John Burlingham, after the court granted the defendant’s motion for summary judgment. On appeal, the plaintiff claims that the court improperly (1) concluded that the defendant was not engaged in the “operation” of a motor vehicle at the time of the accident that gave rise to the plaintiffs injuries and (2) rendered summary judgment notwithstanding the existence of a genuine issue of material fact as to whether the defendant was exercising control and direction over the dump truck at the time of the accident. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our review of the issues raised in this appeal. Both parties were employees of the Old Lyme Development Corporation on March 22,1996. They were working on that date at a construction site on Mile Creek Road in Old Lyme. The plaintiffs work involved operating a Mack dump truck; the defendant was the operator of a front end loader (payloader). The dump truck had a known electrical problem that caused it to stall frequently and need to be jump started. The defendant frequently assisted the plaintiff in this process. The process entailed having the operator of the dump truck release the clutch and engage the gears as the truck was pushed or pulled by the payloader. As the dump truck gained momentum, the operator would release the clutch while the dump truck was moving and thereby start the engine. Once the engine in the dump truck was started, the person in the dump truck would stop it, and the chains by which it was attached to the payloader would be disengaged.

On March 22, 1996, the dump truck stalled while the plaintiff was operating it. The plaintiff walked to where the defendant was working and told him that the truck needed to be jump started. A chain was attached to the dump truck and the payloader. The plaintiff sat in the dump truck, depressing the clutch pedal, ready to release the clutch once the dump truck gained momentum. The defendant operated the payloader, which was pulling the dump truck. When the dump truck had moved approximately three feet, the chain broke near the point where it was attached to the payloader and flew through the dump truck’s windshield, striking the plaintiffs head.

The plaintiff subsequently brought this action, alleging negligence on the part of the defendant as the cause of the accident and the plaintiffs injuries. The defendant asserted the exclusivity provision, General Statutes § 31-293a, of the Workers’ Compensation Act (act), General Statutes § 31-275 et seq. as a special defense. The plaintiff conceded that he has received the benefits to which he is entitled under the act. The plaintiff contested, however, the defendant’s assertion that the exclusivity provision applies to him and claimed instead that the motor vehicle exception referred to in § 31-293a applies to this situation.

The defendant subsequently filed a motion for summary judgment, asserting essentially the same claim raised in his special defense, namely, the exclusivity provision of the act. The defendant further claimed that he was not operating a motor vehicle at the time of the accident because the payloader that he was operating at the time of the accident (1) was used principally at construction sites, (2) was only incidentally moved over highways and (3) was not registered with the department of motor vehicles. The court rendered summary judgment in favor of the defendant, concluding that the defendant was not operating the dump truck, but was operating only the payloader. This appeal followed.

I

The plaintiff first claims that the court improperly concluded that the defendant was not engaged in the operation of a motor vehicle at the time of the accident. We are not persuaded.

Before considering the merits of the plaintiffs claim, we note the applicable standard of review. “The standard of review of a trial court’s decision to grant summary judgment is well established. [W]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Internal quotation marks omitted.) Gillum v. Yale University, 62 Conn. App. 775, 780-81, 773 A.2d 986, cert. denied, 256 Conn. 929, 776 A.2d 1146 (2001). “On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Isidro v. State, 62 Conn. App. 545, 548, 771 A.2d 257 (2001).

The parties agree, and the trial court found, that the payloader that the defendant was using to try to jump-start the dump truck is not a motor vehicle as that term is defined in General Statutes § 14-1 (a) (47). The parties also agree, and the court also found, that, the dump truck that the plaintiff was attempting to start at the time of the incident is a motor vehicle. The issue is whether the defendant’s actions in operating the pay-loader in such a way as to try to start the dump truck constituted operation of the dump truck, notwithstanding that at no time was the defendant actually in the driver’s seat of the dump truck.

The plaintiff seeks to avail himself of the exception to the general exclusivity provision of the workers’ compensation statute that permits an employee who has received workers’ compensation benefits to bring an action against a fellow employee for negligence in the operation of a motor vehicle that caused the injuries. Before he can do so, however, he must show that the facts of his case fit within that exception.

“[Our Supreme Court has] long held that . . . exceptions to statutes are to be strictly construed with doubts resolved in favor of the general rule rather than the exception .... Gay & Lesbian Law Students Assn. v. Board of Trustees, 236 Conn. 453, 473-74, 673 A.2d 484 (1996); see Conservation Commission v. Price, 193 Conn. 414, 424, 479 A.2d 187 (1984); Aaron v. Conservation Commission, 183 Conn. 532, 549, 441 A.2d 30 (1981); see also 2A J. Sutherland, Statutory Construction (5th Ed. Singer 1992) §§ 47.08 and 47.11. [W]here express exceptions are made, the legal presumption is that the legislature did not intend to save other cases from the operation of the statute. Gay & Lesbian Law Students Assn. v. Board of Trustees, supra, 476; see Iovieno v. Commissioner of Correction, 222 Conn. 254, 258, 608 A.2d 1174 (1992); Chairman s. Freedom of Information Commission, 217 Conn. 193,200, 585 A.2d 96 (1991).” (Internal quotation marks omitted.) Ensign-Bickford Realty Corp. v. Zoning Commission, 245 Conn. 257, 268, 715 A.2d 701 (1998).

The plaintiffs contention that the defendant, as the operator of the payloader, which was helping to jump-start the dump truck, was also the operator of the dump truck, runs counter to the language of § 14-1 (a) (54). That statute, which defines an “operator” of a motor vehicle, also provides for the determination of the operator in a case where one vehicle tows another. Section 14-1 (a) (54) provides in relevant part: “ ‘Operator’ means any person who operates a motor vehicle or who steers or directs the course of a motor vehicle being towed by another motor vehicle . . . .” The defendant neither steered nor directed the course of the dump truck as it was being jump started.

Our Supreme Court has stated that “[t]here is nothing to suggest that the use of any mechanical or electrical device not an integral part of the motor vehicle being driven can be considered operation of a motor vehicle.” Davey v. Pepperidge Farms, Inc., 180 Conn. 469, 472 n.1, 429 A.2d 943 (1980). This is what the defendant was doing — using a mechanical device (the payloader) that was not an integral part of the motor vehicle being driven (the dump truck) in an attempt to start the dump truck. No reasonable trier of fact could conclude that the payloader was an integral part of the dump track, no matter how many times it had been used to jump start the dump track.

In Davey, the court also noted that “operation,” for purposes of the exception contained in the act, means “driving or movement of the vehicle itself or a circumstance resulting from the movement of the vehicle.” Id. It is undisputed that, whatever the defendant was doing, he was not driving the dump track. He was thus not “operating” the dump truck.

In this case, applying the rale of statutory construction that we strictly construe exceptions, as articulated previously, we cannot say that the plaintiff has shown that his case clearly fits within the motor vehicle exception. It is undisputed that the payloader, which the defendant controlled, was not a motor vehicle. The fact that the plaintiff solicited the defendant’s assistance in jump-starting the dump truck, which admittedly is a motor vehicle, does not affect our analysis.

We, therefore, conclude that the court properly concluded that the defendant’s operation of the payloader to jump-start the plaintiffs dump truck did not constitute “operation of a motor vehicle” so as to bring the incident within the exception contained in § 31-293a.

II

The plaintiff also claims that the court improperly granted the motion for summary judgment in the face of an issue of material fact, namely, whether the defendant had control over the dump truck at the time of the accident that injured the plaintiff. We disagree.

The plaintiff mischaracteiizes the essence of the dispute here. There is no real factual dispute in the parties’ respective recitations of the events that took place. Their argument is over whether the court drew the proper conclusion from the facts set before it on the issue of whether the defendant had control over the dump truck.

In Kiriaka v. Alterwitz, 7 Conn. App. 575, 580, 509 A.2d 560 (1986), we had before us a situation where the underlying facts were not in dispute, and the only issue, as here, was whether the defendant was operating a motor vehicle within the meaning of § 31-293a. We held in Kiriaka that there was no genuine issue of material fact and that the trial court properly rendered summary judgment. Id. The same is true here. The issue of whether the defendant was engaged in the operation of a motor vehicle at the time of the accident was an issue of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the trial court’s memorandum of decision recites the date as March 22,1997, all of the pleadings filed in the court, as well as both parties’ briefs, refer to the date as March 22, 1996. Accordingly, we will treat the 1997 date used by the trial court as a scrivener’s error.

       General Statutes § 31-293a provides in relevant part: “If an employee . . . has a right to benefits or compensation under this chapter on account of injury . . . caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee . . . and no action may be brought against such fellow employee unless such wrong-was wilful or malicious or the action is based on the fellow employee’s negligence in the operation of a motor vehicle as defined in section 14-1. For purposes of this section, contractors’ mobile equipment such as bulldozers, powershovels, rollers, graders or scrapers, farm machinery, cranes, diggers, forklifts, pumps, generators, air compressors, drills or other similar equipment designed for use principally off public roads are not ‘motor vehicles’ . . .

       GeneralStatu1.es § 14-1 (a) (47) provides in relevant part: “ ‘Motor vehicle’ means any vehicle propelled or drawn by any nonmuscular power, except . . . road rollers . . . agricultural tractors, farm implements . . . and any other vehicle not suitable for operation on a highway

       See footnote 2.


text:
    DOWNES-PATTERSON CORPORATION ET AL. v. FIRST NATIONAL SUPERMARKETS, INC.
    (AC 20506)
    Lavery, C. J., and Spear and O’Connell, Js.
    Argued February 21
    officially released July 24, 2001

      Robert M. Shields, Jr., with whom were Wesley W. Horton and, on the brief, Michael J. Quinn, for the appellants (plaintiffs).

      Everett E. Newton, for the appellee (defendant).
   Opinion

LAVERY, C. J.

The plaintiffs, Downes-Patterson Corporation (Downes-Patterson) and S.S. Brooklyn, LLC, appeal from the judgment of the trial court setting aside a jury verdict in their favor. The plaintiffs claim on appeal that the court abused its discretion in setting aside the verdict because the evidence presented at trial was sufficient to support the jury’s finding that the defendant had (1) violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and (2) tortiously interfered with the plaintiffs’ business expectancies under a lease with a third party. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts, most of which were stipulated to by the parties. In 1959, the defendant purchased real property in the town of Brooklyn from Pauline Schulze. The defendant subsequently sold the property to ECONN Associates (ECONN) and leased it back, operating a Finast supermarket thereon since 1965.

Between 1960 and 1965, Downes-Patterson purchased adjacent property from Schulze. Pursuant to a prior agreement between Schulze and the defendant, Downes-Patterson held its property subject to a restrictive covenant. The restrictive covenant barred the owner of the land from operating a supermarket on the premises. Downes-Patterson did not develop the land but, around 1990, began negotiating with Stop & Shop Supermarkets, Inc. (Stop & Shop), with the aim of constructing a supermarket on the property. It was intended that Stop & Shop would lease the supermarket from the plaintiffs upon its completion.

At about that time, the plaintiffs brought a declaratory judgment action against ECONN and the defendant. The plaintiffs sought to have the restrictive covenant preventing the operation of a supermarket on their property declared invalid. The court, Rittenband, J., found that, because it contained no time limitation, the restrictive covenant was void as against public policy, and the defendant appealed. That decision is not at issue for purposes of the present appeal; the events giving rise to the present appeal occurred while the appeal concerning the validity of the restrictive covenant was pending before our Supreme Court.

The Supreme Court heard oral argument on the appeal on December 2, 1994. The defendant’s position before the court was that a time limitation should be implied as to the restrictive covenant, that limitation being for as long as the defendant or its successor operated its neighboring supermarket. The defendant argued that, once it ceased to operate a supermarket on its property, the restrictive covenant would have no purpose and no longer would be valid.

On February 24,1995, before the Supreme Court had rendered a decision on the parties’ appeal, the plaintiffs learned from a local newspaper that the defendant planned to close its supermarket in early March, 1995. Shortly thereafter, the defendant did close the supermarket. Considering that the defendant’s argument on appeal had been undermined by its closing of the store, the plaintiffs approached the defendant on March 2, 1995, and asked whether the defendant had any objections to the plaintiffs’ beginning construction of a Stop & Shop store on their parcel. The defendant told the plaintiffs that it had no objections to the proposed construction.

On March 16, 1995, the plaintiffs signed a long-term lease agreement with Stop & Shop. The agreement provided that, if the pending litigation between the plaintiffs and the defendant was not finally resolved by May 1, 1995, Stop & Shop could terminate the lease, with an option to reinstate it within one year if it so desired. The plaintiffs commenced construction of the physical plant that was to become the Stop & Shop store.

During the next two months, the plaintiffs’ attorney, Eric Lukingbeal, and the defendant’s attorney, Richard C. Robinson, communicated regularly via facsimile and telephone. Lukingbeal advised Robinson that the plaintiffs needed signed releases of the restrictive covenant from both the defendant and its landlord, ECONN, to obtain title insurance. Robinson agreed to relay the requests to his clients. On April 4, 1995, Robinson received from Lukingbeal two release of covenant forms. Robinson forwarded them to ECONN and the defendant. ECONN executed and returned its release form on April 19, 1995. The defendant did not sign and return its release form.

Lukingbeal called Robinson repeatedly throughout April, 1995, asking for the defendant’s release form. During an April 21,1995 telephone conversation, Lukingbeal expressed urgency and concern that the defendant had not yet signed the release. On April 26, 1995, Lukingbeal wrote Robinson a letter, warning that unspecified “serious financial consequences” would result if the release were not signed and that the plaintiffs would seek indemnification from the defendant if this occurred. The letter did not mention the plaintiffs agreement with Stop & Shop or the May 1, 1995 deadline. At that point in time, the parties still were awaiting a decision from the Supreme Court on the appeal.

The next day, the defendant filed a motion with the Supreme Court asking that the appeal be withdrawn. Robinson informed Lukingbeal of the motion and obtained the plaintiffs’ consent to the granting of the motion. Both attorneys believed that withdrawal of the appeal would satisfy the plaintiffs’ requirements. On May 1, 1995, to the surprise of all of the parties, the Supreme Court denied the defendant’s motion. Lukingbeal again called Robinson, who told Lukingbeal that the defendant would not sign the release. Lukingbeal sent the defendant another letter on May 4,1995, warning for the first time that Stop & Shop, “which is going to occupy the store under a lease when it is built, and which is financing the construction, may decide not to close on the construction loan if this issue is not resolved quickly.” Nonetheless, the letter did not mention that the lease already had been signed or that it contained a termination provision contemplating an already passed deadline. The defendant did not sign the release. '

On May 9,1995, the Supreme Court advised the defendant that it would reconsider the defendant’s motion to withdraw the appeal. A hearing was scheduled for May 24, 1995. On May 12, 1995, Lukingbeal notified Robinson that Stop & Shop had terminated its lease with the plaintiffs on May 10,1995. The plaintiffs blamed the defendant for that development and again threatened litigation. On May 19, 1995, the defendant delivered a photocopy of the executed release to the plaintiffs. On May 24, 1995, the hearing on the motion to withdraw the parties’ appeal was held as scheduled and, on June 1, 1995, the Supreme Court granted the motion, terminating the litigation over the validity of the restrictive covenant. Stop & Shop nonetheless declined to exercise its option to reinstate the lease. Construction on the store ceased and, in November, 1996, the plaintiffs brought an action against the defendant. The plaintiffs alleged, among other things, that the defendant’s refusal to sign the release of the restrictive covenant constituted tortious interference with the plaintiffs contract with Stop & Shop and, further, that the refusal amounted to a CUTPA violation.

After a short trial, the jury found in favor of the plaintiffs on each of those allegations and awarded the plaintiffs $2.8 million in damages. The court, Aurigemma, J., set aside the jury’s verdict, reasoning that there could be no tort or CUTPA violation because the defendant had no legal duty to sign the release of restrictive covenant form as demanded by the plaintiffs. This appeal followed.

We begin by articulating our standard of review. “A court is empowered to set aside a jury verdict when, in the court’s opinion, the verdict is contrary to the law or unsupported by the evidence. ... A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion. . . . Before determining whether the granting of a motion to set aside is proper, the trial court must look at the relevant law that it gave the jury to apply to the facts, and at the facts that the jury could have found based on the evidence. The law and evidence necessarily define the scope of the trial court’s legal discretion. . . . This discretion vested in the trial court is not an arbitrary or capricious discretion, but, rather, it is legal discretion to be exercised within the boundaries of settled law. . . . This limitation on a trial court’s discretion results from the constitutional right of litigants to have issues of fact determined by a jury. . . . The trial court, upon a motion to set aside the verdict, is called on to question whether there is a legal reason for the verdict and, if there is not, the court must set aside the verdict.” (Citations omitted; internal quotation marks omitted.) PAR Painting, Inc. v. Greenhorne & O’Mara, Inc., 61 Conn. App. 317, 322-23, 763 A.2d 1078, cert. denied, 255 Conn. 951, 770 A.2d 31 (2001).

“In reviewing a trial court’s decision to set aside a jury verdict, we must consider the evidence in the light most favorable to the party who succeeded before the jury. . . . While an appellate court must give great weight to a trial court’s decision to set aside a verdict, an appellate court must carefully review the jury’s determinations and evidence, given the constitutional right of litigants to have the issues decided by a jury. Great weight should be given to the action of the trial court and the presumption is that a verdict is set aside only for good and sufficient reason. However, the record must support that presumption and indicate that the verdict demonstrates more than poor judgment on the part of the jury. . . . While we do not attempt to substitute our judgment for that of the trial judge, we must determine whether the jury award was such that the trial judge could have properly substituted his judgment for that of the jury. ... An appellate court, therefore, in reviewing whether a trial court abused its legal discretion, must review the entire record and [all] the evidence.” (Citation omitted; internal quotation marks omitted.) Id., 323.

The jury found that the defendant tortiously interfered with the plaintiffs’ contract with Stop & Shop. Further, the jury found the defendant’s conduct to be the basis of a CUTPA violation. Pursuant to the standards previously outlined, we must review the law governing those claims and the evidence presented at trial to determine whether the court abused its discretion in setting aside the jury’s verdict.

I

The plaintiffs first claim that the court abused its discretion in setting aside the jury’s finding that the defendant, in refusing to sign the release of the restrictive covenant, violated CUTPA. The plaintiffs argue that the court improperly imputed a duty requirement to a CUTPA cause of action. We disagree.

In setting aside the jury’s verdict, the court ruled as follows: “[T]he issue of whether or not [the defendant] had a duty to issue this release is a question of law. As a matter of law ... I rule, that they had no duty. If they had a duty, then there is nothing other than Stop & Shop’s own incredibly tight time frame, of which First National was not aware, that required that this duty be exercised by May 1st or May 10th. As a matter of fact, it appears that once [the defendant] learned that there was this time frame, and that by not issuing this release something had been — a lease had been forfeited. They issued the release. So if they had a duty to do it, they did it. There is nothing that required them to act so expeditiously as Stop & Shop required, so there can be no interference when the active interference is the failure to do that which one does not have a duty to do. And if there is no duty to issue this release, there can be no unfair trade practice.”

“Connecticut courts, when determining whether a practice violates CUTPA, will consider (1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen). . . . Thus, a violation of CUTPA may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy.” (Citation omitted; internal quotation marks omitted.) Kenney v. Healey Ford-Lincoln-Mercury, Inc., 53 Conn. App. 327, 330, 730 A.2d 115 (1999).

The plaintiffs are correct in pointing out that, as a general matter, the existence of a duty is not a prerequisite to a finding of a CUTPA violation. Where a plaintiff alleges that a defendant’s passive conduct violates CUTPA, however, common sense dictates that a court should inquire whether the defendant was under any obligation to do what it refrained from doing. That is illustrated by the cases in which we have held that defendants did not violate CUTPA by failing to disclose information when they were under no legal obligation to disclose that information. See, e.g., id., 330-31 (used car dealer did not violate CUTPA in failing to disclose to purchaser that car had been part of rental fleet and had been in prior collision), citing Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 523, 646 A.2d 1289 (1994) (bank did not violate CUTPA by failing to disclose to judgment creditor the reason debtor’s account had insufficient funds to satisfy judgment); Southington Savings Bank v. Rodgers, 40 Conn. App. 23, 28-29, 668 A.2d 733 (1995) (bank did not violate CUTPA by failing to notify defaulting debtor-depositors that hold had been placed on their accounts), cert. denied, 236 Conn. 908, 670 A.2d 1307 (1996).

We find those holdings to be instructive. Just as the failure to disclose what one is not required to disclose does not violate public policy, the failure to release a right that one is not required to release similarly does not contravene public policy. Here, the defendant possessed a property right that it had bargained for when it purchased its land from Schulze in 1959. The final adjudication of the validity of the right still was pending. The plaintiffs promised Stop & Shop that they would achieve a result that it was not within their power to compel. Although the plaintiffs hoped and even expected that the defendant would sign a release of the right, the defendant was under no statutory or contractual obligation to do so. Under those circumstances, the defendant did not violate CUTPA by declining to do that which it simply was not required to do. The analysis does not differ because the plaintiffs, effectively, gambled on an expectation that the defendant would choose to proceed differently than it did and, subsequently, lost that gamble.

After reviewing the evidence and the law governing the plaintiffs’ CUTPA claim, we hold that the court did not abuse its discretion in setting aside the jury’s verdict thereon on the basis that the defendant was under no duty to release the restrictive covenant.

II

The plaintiffs next claim that the court abused its discretion in setting aside the jury’s finding that the defendant, in refusing to sign the release of the restrictive covenant, tortiously interfered with the plaintiffs’ business expectancy under their lease with Stop & Shop. Again, the plaintiffs argue that the court improperly imputed a duty requirement into their tortious interference claim. We disagree.

“[I]n order to recover for a claim of tortious interference with business expectancies, the claimant must plead and prove that: (1) a business relationship existed between the plaintiff and another party; (2) the defendant intentionally interfered with the business relationship while knowing of the relationship; and (3) as a result of the interference, the plaintiff suffered actual loss.” Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 32-33, 761 A.2d 1268 (2000).

Although Connecticut courts “long [have] recognized a cause of action for tortious interference with contract rights or other business relations . . . [the case law indicates, nonetheless,] that not every act that disturbs a contract or business expectancy is actionable. . . . [F] or a plaintiff successfully to prosecute such an action it must prove that the defendant’s conduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation ... or that the defendant acted maliciously. . . . [An] action for intentional interference with business relations . . . requires the plaintiff to plead and prove at least some improper motive or improper means. . . . The plaintiff in a tortious interference claim must demonstrate malice on the part of the defendant, not in the sense of ill will, but intentional interference without justification. . . . In other words, the [plaintiff] bears the burden of alleging and proving lack of justification on the part of the [defendant].” (Citations omitted; internal quotation marks omitted.) Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 805-806, 734 A.2d 112 (1999).

“Stated simply, to substantiate a claim of tortious interference with a business expectancy, there must be evidence that the interference resulted from the defendant’s commission of a tort. [A] claim is made out [only] when interference resulting in injury to another is wrongful by some measure beyond the fact of the interference itself. . . . [Not e]very act of interference is . . . tortious.” (Internal quotation marks omitted.) Golembeski v. Metichewan Grange No. 190, 20 Conn. App. 699, 703-704, 569 A.2d 1157, cert. denied, 214 Conn. 809, 573 A.2d 320 (1990), quoting Blake v. Levy, 191 Conn. 257, 261, 464 A.2d 52 (1983).

Although the plaintiff again is correct in its assertion that the test for tortious interference contains no explicit duty requirement, we think that the discussion in part I regarding the role of the concept of duty in the analysis of the CUTPA claim is equally applicable here and, as such, does not bear repeating. Furthermore, we conclude that the evidence submitted by the plaintiffs to prove the defendant’s tortious interference otherwise was lacking, to the extent that it could not support the verdict issued by the jury.

First, the evidence submitted was insufficient to show that the defendant knew of an active lease between the plaintiffs and Stop & Shop with a critical May 1, 1995 deadline. Lukmgbeal’s April 26, 1995 letter to Robinson warned only generally that the plaintiffs would suffer “serious financial consequences” if the defendant did not sign the release, but mentioned nothing of an existing agreement with Stop & Shop containing a termination provision. See footnote 5. Lukingbeal’s May 4,1995 (postdeadline) letter mentions that “Stop & Shop ... is going to occupy the store under a lease when it is built” and that “title insurance is necessary in order for Stop & Shop to proceed to enter into a lease for the property.” Those statements imply a future, not current, lease agreement and again, there is no mention of the critical deadline date or termination provision. See footnote 6. Lukingbeal testified, equivocally, that he believed that he had informed Robinson that there was a lease.

Even when viewing the evidence in the light most favorable to sustaining the verdict and, therefore, assuming that the jury found Lukingbeal’s testimony more credible than his letters, there still remains no evidence whatsoever that Robinson ever was made aware of the critical terms of that lease. In fact, Lukingbeal testified that he, himself, was not aware that May 1, 1995, was a significant date in the Stop & Shop agreement. Because there was no evidence that the defendant was aware that its failure to sign the release of covenant form by May 1, 1995, would give Stop & Shop the option to terminate its agreement with the plaintiffs, the jury could not reasonably have reached the conclusion that the defendant, by its inaction, “intentionally interfered with the business relationship [of the plaintiffs] while knowing of the relationship . . . .” Hi-Ho Tower, Inc. v. Com-Tronics, Inc., supra, 255 Conn. 33.

Second, the plaintiffs provided insufficient evidence of the defendant’s alleged “improper motive or improper means.” As previously explained, to prevail on a tortious interference claim, a plaintiff must prove “interference [that is] wrongful by some measure beyond the fact of the interference itself.” (Internal quotation marks omitted.) Golembeski v. Metichewan Grange No. 190, supra, 20 Conn. App. 703. Here, the plaintiffs showed only that the defendant declined to release a property right that it was under no obligation to release. No evidence was put forth that tended to show that the defendant was acting maliciously, other than the fact that Finast and Stop & Shop were competing chains, and the plaintiffs’ bare assertion that there was no reason for the defendant to refuse to sign the form. In fact, the defendant at trial offered several plausible reasons for its refusal. Further, the fact that the defendant moved to withdraw its appeal from the Supreme Court, a gesture that all parties believed would meet the plaintiffs’ requirements, undercuts the plaintiffs’ assertion that the defendant maliciously was seeking to interfere with the Stop & Shop deal.

The lack of evidence of improper motive also is documented in Lukingbeal’s letters to Robinson. In the April 26, 1995 letter, Lukingbeal wrote that the defendant “has not manifested any objection to [releasing the covenant].” In the May 4,1995 letter, Lukingbeal wrote that “[t]here has never been any objection to the release language, nor has there been any reason given for not signing it” and that the plaintiffs could “only speculate as to [the defendant’s] reasons, as none have been offered.” Because of the dearth of evidence in that regard, we conclude that the jury likewise could only speculate as to the defendant’s motive and, therefore, its finding that it was an improper one was not reasonable.

After reviewing the evidence and the law governing the plaintiffs’ tortious interference claim, we hold that the court did not abuse its discretion in setting aside the jury’s verdict thereon.

The judgment is affirmed.

In this opinion the other judges concurred.

       Downes-Patterson is the owner of the real property implicated in this appeal. S.S. Brooklyn, LLC, is a development company owned 99 percent by Downes-Patterson and 1 percent by Downes-Patterson’s principal, Paul Klotz. In this opinion, we will refer to Downes-Patterson and S.S. Brooklyn, LLC, collectively as the plaintiffs.

       The trial court did not rule on the defendant’s motion for a directed verdict until after the jury returned a verdict in favor of the plaintiffs. After the verdict was returned, the court granted the defendant’s motion, in effect setting aside the verdict. See Practice Book § 16-37.

       First National Supermarkets, Inc., formerly was the defendant. Topps, Inc., successor to First National Supermarkets, Inc., was substituted as the defendant on May 16,2000. In this opinion, we will refer to them interchangeably as the defendant.

       Specifically, § 7.1 (a) (i) of the lease provides in relevant part that “[i]f, prior to the Approval Date, Landlord is unable to obtain the Required Approvals and/or there has not been a final determination in the matter of Downes-Patterson, Inc. vs. First National Supermarkets, Inc. and ECONN Plaza Associates Limited Partnership filed in the Judicial District of Windham County, Connecticut at Putnam (the ‘Existing Litigation’) such that there will be no restriction against Tenant’s use of the demised premises as contemplated by Section 9.1 hereof, Tenant may elect to terminate this Lease at any time thereafter by sending written notice thereof to Landlord, whereupon this Lease will terminate as of the date specified in the Tenant’s notice and Landlord and Tenant shall have no further obligation to each other.”
      Section 7.1 (a) (iii) of the lease provides in relevant part that “[i]n the event this Lease shall be terminated by Tenant ... if, at any time within twelve (12) months of said termination by Tenant (the ‘reinstatement period’), there is a final determination in the Existing Litigation to the extent contemplated by subparagraph (i) herein .... Tenant shall have the right and option to reinstate this Lease . . . .”

       The text of the April 26, 1995 letter is as follows:
      “Dear Rick:
      “I write to request that you put your client, First National Supermarkets, on notice of the risk of a potential claim against it by Downes-Patterson, Inc.
      “Several weeks ago, in response to my inquiry whether it would be appropriate for Downes-Patterson to begin construction on the Brooklyn site, you relayed a message to me via voice mail to go ahead. My inquiry was prompted by a newspaper article that First National was closing its Brooklyn store. In a later conversation, you asked me to send to you the necessary forms for your clients to sign releasing any claims that the restrictive covenant was enforceable. First National has now had the release form, and has not manifested any objection to it, for a considerable time. In reliance upon the foregoing, and in the expectation that the signed form would soon be in hand, Downes-Patterson has in fact commenced construction.
      “While we are very appreciat[ive] of your efforts to get the release form signed, we must ask you to inform your client that serious financial consequences may result if the form is not promptly signed and returned. DownesPatterson will look to First National Supermarkets for indemnification should it suffer any damages caused by the delay in First National’s signing the form.
      “Very truly yours,
      “Eric Lukingbeal”

       The text of the May 4, 1995 letter is as follows:
      “Dear Rick:
      “In response to my letter dated April 26, 1995, your client, First National Supermarkets, Inc., filed a motion to withdraw its appeal. As you know, the Supreme Court denied the motion on May 1, without explanation. We have requested, again, that First National sign the release of restrictive covenant.
      “Today, you advised me that First National would not sign the release of restrictive covenant (which we had sent to you over a month ago). No reason was given. You also told me that First National could not enforce the covenant even if the Supreme Court upholds it. That is a position with which we agree, and the fact that it is your client’s position makes it all the more puzzling that First National will not sign the release. This was the release you asked me to send to you for First National to sign. There has never been any objection to the release language, nor has there been any reason given for not signing it.
      “The financial risk First National is now running is quite substantial. Downes-Patterson proceeded in reliance on First National’s actions, all as described in my April 26, 1995 letter. No one has challenged anything said in that letter. Stop & Shop, which is going to occupy the store under a lease when it is built, and which is financing the construction, may decide not to close on the construction loan if this issue is not resolved quickly. Stop & Shop has already put Downes-Patterson on notice that Downes-Patterson is proceeding at its own risk in continuing with construction. DownesPatterson would not have done so absent First National’s conduct. The release language has been reviewed and approved by the title insurance company, and title insurance is necessary in order for Stop & Shop to proceed to enter into a lease for the property. We intend to hold First National liable for whatever damages Downes-Patterson may incur in the event the construction loan does not close, in the event Stop & Shop decides not to proceed further, or in the event Downes-Patterson is damaged in any other way.
      “Everyone involved is amazed that First National would willingly continue to run such a risk of incurring potential liability so easily avoided. We can only speculate as to its reasons, as none have been offered. This letter is written to point out the gravity and urgency of the situation, and with the hope that reason may still prevail.
      “I look forward to your response after consultation with your clients.
      “Very truly yours,
      “Eric Lukingbeal”

       The defendant, without acknowledging culpability, offered to provide the original of the executed release of restrictive covenant in exchange for a release of liability from the plaintiffs.

       The $2.8 million represented lost profits under the lease. Stop & Shop fully reimbursed the plaintiffs for the costs they had expended on construction.

       General Statutes § 42-110b (a) provides: “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

       We note that the court, in its charge to the jury, accurately relayed the elements of a claim of tortious interference with a business expectancy. It went on to explain that to establish the element of intentional interference under the circumstances of this case, the plaintiffs needed to show that the defendant had a duty to sign the release before May 1, 1995. The court explained its reasoning to the parties’ attorneys on the record prior to charging the jury: “I have a question mark in my mind as to whether inaction can ever be intentional interference. I can really fmd no case on that, but I think that’s a problem here. But assuming inaction can constitute interference, which we must assume if you’re going to have any sort of a cause of action, then the question becomes, was there a duty to sign anything on the part of First National? Because, obviously, if inaction can be tortious interference or interference, the failing to do something can only be interference where you have a duty to do it. So, that’s the real question here. Was there a duty to sign the release?” Those portions of the record make it clear that the court applied the proper legal rule, but considered that, under the circumstances of this case, duty was a necessary subelement of the element of intentional interference. We agree.

       “We may affirm a proper result of the trial court for a different reason.” Biro v. Hirsch, 62 Conn. App. 11, 16 n.7, 771 A.2d 129, cert. denied, 256 Conn. 908, 772 A.2d 601 (2001).

       For example, Robert W. Sullivan, a former attorney for the defendant, testified that different levels of intracorporate approval were necessary to authorize a gratuitous release of the covenant.