author: ALVORD, J.

text:
    NICOLE PAUL v. TOWN PLAN AND ZONING COMMISSION OF THE TOWN OF FAIRFIELD
    (AC 31490)
    Bishop, Alvord and Pellegrino, Js.

      Argued March 16
    officially released August 30, 2011

      Richard H. Saxl, for the appellant (defendant).

      John F. Fallon, for the appellee (plaintiff).
   Opinion

ALVORD, J.

The defendant, the Fairfield plan and zoning commission (commission), appeals from the judgment of the trial court sustaining the appeal of the plaintiff, Nicole Paul, from the commission’s denial of her subdivision application. On appeal, the commission claims that the court improperly (1) concluded that the evidence was insufficient to support the commission’s determination that the plaintiff’s proposed subdivision road was a “cul-de-sac” as defined in § 2.1.6 of the Fairfield subdivision regulations (regulations) and (2) concluded that the commission’s requirement for an open space dedication required evidence of an immediate need for the dedicated land. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. During November, 2007, the plaintiff filed an application to subdivide her property on Mill Hill Road in the Southport section of Fairfield (property) into four residential lots. The property is bounded on the north by a public school, on the east by private property, on the south by Mill Hill Road and on the west by a large parcel owned by Albert Garofalo, the plaintiffs deceased grandfather. Located in a residential zone, the total area of the plaintiffs property is 2.63 acres or 114,958 square feet. The lots in the proposed subdivision ranged in size from 21,333 to 29,799 square feet, which was in compliance with the relevant zoning requirements. Access to the lots was provided as follows: Mill Hill Road provided sole access to one of the lots; the proposed subdivision road provided sole access to two of the lots; and the final lot, located on the comer of Mill Hill Road and the proposed subdivision road, could be accessed by either road.

On March 11, 2008, the commission held a public hearing on the application. Most of the discussion at that hearing addressed two principal issues, the safety of the roads in the vicinity of the proposed subdivision and the classification of the proposed subdivision road as either a cul-de-sac or a temporary turnaround. Section 2.1.6 of the regulations provides: “Cul-de-sacs are streets closed at one end and which will not be extended in the future. No such street shall provide sole access to more than ten (10) building lots nor shall any such street provide sole access to less than three (3) building lots.” The plaintiff acknowledged that the proposed subdivision road provided sole access to only two building lots. She indicated, however, that she was one of the beneficiaries of her grandfather’s estate and that the plan was to subdivide the estate property, which consisted of approximately twenty-six acres of largely undeveloped land. When the estate property was subdivided, the plaintiff stated that her proposed subdivision road would likely provide sole access to as many as four additional lots. She therefore requested that the commission either waive the limitation of § 2.1.6 or find that the proposed subdivision road was not a cul-desac because the road would be extended in the future.

Following an executive session held on March 25, 2008, the commission voted to deny the plaintiffs subdivision application. The application was denied for the stated reasons that her proposal (1) failed to provide a safe and convenient system for present and prospective traffic, (2) contained a proposed cul-de-sac with sole access to two lots, which was not in conformance with § 2.1.6 of the regulations and (3) failed to dedicate open space pursuant to § 2.3.1 of the regulations.

The plaintiff appealed to the Superior Court from the commission’s denial. During the pendency of that appeal, the court granted the commission’s motion to allow evidence outside of the record with respect to the “recreational” use of the athletic field abutting the plaintiffs property. Subsequently, on May 15, 2009, the court held a hearing on the plaintiffs appeal. The court issued its memorandum of decision on June 11, 2009. After determining that the plaintiff was aggrieved, the court acknowledged the commission’s concession that its first reason for denial, i.e., the failure to provide a safe and convenient system for traffic pursuant to § 2.1.5, was not an appropriate reason for denial and could not be sustained by the court. The court then concluded that the denial of the application could not be sustained on the basis of the commission’s stated reason that the proposed subdivision road was a culde-sac. Specifically, the court determined that the commission ignored the definition of cul-de-sac in the regulations, having made no finding that the road would “not be extended in the future.” Moreover, the court found that the record was devoid of any evidence that would support such a conclusion.

With respect to open space dedication, the court noted that the regulations do not require applications for small subdivisions, which are less than four acres and fewer than five lots, to provide for open space. However, the commission may in its discretion, pursuant to § 2.3 of the regulations, require open space dedication in small subdivisions if it determines that the subject property is adjacent to “existing open space, park or recreational land” and that such a dedication would accomplish one or more of the objectives set forth in § 2.3.1 of the regulations. The court concluded that there was no evidence in the record to support the commission’s determination that the dedication of open space in the plaintiffs proposed subdivision would further any of those objectives.

The court also noted that the issue of whether the application could be denied for the plaintiffs failure to provide open space arose for the first time during the executive session on March 25, 2008, which was after the close of the public hearing. From its review of the transcript, the court determined that there was “little or no discussion of any need for open space arising out of the proximity of the plaintiffs property to the Mill Hill School” at the public hearing.

Having determined that none of the stated reasons for denial was supported by substantial evidence in the record, the court sustained the plaintiffs appeal. The commission filed the present appeal after this court granted its petition for certification.

We first set forth the applicable legal principles and standard of review that guide our analysis. In reviewing the plaintiffs subdivision application, the commission was acting in an administrative capacity. See Pansy Road, LLC v. Town Plan & Zoning Commission, 283 Conn. 369, 374, 926 A.2d 1029 (2007). “When acting in its administrative capacity, a planning commission has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance.” (Internal quotation marks omitted.) Id.

Additionally, “a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [a zoning] commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission] .... If a trial court finds that there is substantial evidence to support a zoning board’s findings, it cannot substitute its judgment for that of the board.” (Citation omitted; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004). “[E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Internal quotation marks omitted.) Heithaus v. Planning & Zoning Commission, 258 Conn. 205, 221, 779 A.2d 750 (2001).

I

The commission’s first claim is that the court improperly concluded that the evidence was insufficient to support the commission’s determination that the plaintiffs proposed subdivision road was a “cul-de-sac” as defined in § 2.1.6 of the regulations. As previously noted, § 2.1.6 defines a cul-de-sac as a street “closed at one end and which will not be extended in the future . . . .” The commission argues that the court interpreted the phrase “in the future” to mean that there was no “ ‘realistic possibility’ ” that the street would ever be extended, whereas the commission interpreted the phrase to mean within the immediate or reasonably foreseeable future.

The commission’s claim requires an interpretation of the town’s subdivision regulations, which is a question of law. See Thomas v. Planning & Zoning Commission, 98 Conn. App. 742, 745, 911 A.2d 1129 (2006). “Because the interpretation of the regulations presents a question of law, our review is plenary. . . . [Z]oning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes. . . . Moreover, regulations must be interpreted in accordance with the principle that a reasonable and rational result was intended. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language [or . . . the relevant zoning regulation] as applied to the facts of the case, including the question of whether the language does so apply.” (Internal quotation marks omitted.) Trumbull Falls, LLC v. Planning & Zoning Commission, 97 Conn. App. 17, 21-22, 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006).

Although a commission’s interpretation of its regulations is entitled to some deference, we are not bound by its legal interpretation. See Northeast Parking, Inc. v. Planning & Zoning Commission, 47 Conn. App. 284, 293, 703 A.2d 797 (1997), cert. denied, 243 Conn. 969, 707 A.2d 1269 (1998). Likewise, our review of the trial court’s interpretation of the subdivision regulations is plenary. See Balf Co. v. Planning & Zoning Commission, 79 Conn. App. 626, 635, 830 A.2d 836, cert. denied, 266 Conn. 927, 835 A.2d 474 (2003).

As indicated by the court, the commission did not expressly state that it found the proposed subdivision road to be a cul-de-sac because the road will not be extended in the future. Instead, in its stated reasons for denial, the commission found that the road was a cul-de-sac pursuant to § 2.1.6 because “[t]he proposed turnaround has been designed in accordance with the provision for public cul-de-sacs in [§] 2.1.7.” The plaintiffs proposed subdivision road has a radius of fifty feet at one end. The court did not address the commission’s reference to the design standards of § 2.1.7, except to say that the commission used “an inapplicable engineering' standard to reach its conclusion . . . .’’It concluded that the commission ignored the specific language in the regulation, “will not be extended in the future,” and ignored all the representations made at the public hearing regarding the intent to develop the estate property into additional lots that would depend on the plaintiffs proposed subdivision road for access. For that reason, the court concluded that “the commission acted in an arbitrary and capricious manner and abused its discretion.”

We agree with the trial court that the record does not support the commission’s stated reason for denial, but we disagree with some of the court’s reasoning in reaching that conclusion. “It is axiomatic that [w]e may affirm a proper result of the trial court for a different reason.” (Internal quotation marks omitted.) Florian v. Lenge, 91 Conn. App. 268, 281, 880 A.2d 985 (2005). The court concluded that the commission should not have considered the engineering standards set forth in § 2.1.7 of the subdivision regulations in determining whether the proposed subdivision road was a permanent culde-sac or a temporary turnaround. We disagree. “When examining the regulations, [w]e . . . are guided by the principle that the [commission] is always presumed to have created a harmonious and consistent body of law .... [T]his tenet of statutory construction . . . requires us to read statutes together when they relate to the same subject matter . . . .” (Internal quotation marks omitted.) Kraiza v. Planning & Zoning Commission, 121 Conn. App. 478, 492, 997 A.2d 583, cert. granted on other grounds, 298 Conn. 904, 3 A.3d 70 (2010).

In making its finding as to whether the proposed subdivision road was a cul-de-sac or a temporary turnaround, the commission could consider the design standards set forth in § 2.1.7 to make a determination as to the future use of that road. Even though the commission did not state expressly that the road will not be extended in the future, a fair reading of its reason for denial is that the commission inferred that the cul-desac would not be extended in the future because the plaintiff had designed the road in accordance with the engineering standards required for a permanent cul-desac rather than the less rigorous design standards for a temporary turnaround. The plaintiffs proposed subdivision road, having a radius of fifty feet at one end, met the design requirements for a permanent cul-de-sac. If the plaintiff intended the road to be extended in the future, the commission argues that it would have designed the road with a radius of forty feet in accordance with the standards for a temporary turnaround.

In its stated reason for denial, the commission relied solely on the fact that the proposed road met the engineering requirements for a permanent cul-de-sac as set forth in § 2.1.7. The fatal flaw in the commission’s argument is the actual language of that regulation. A permanent cul-de-sac must have “a minimum radius of fifty (50) feet” whereas a dead-end street that will be extended “at some future date” must have a turnaround with “a minimum radius of forty (40) feet.” (Emphasis added.) Fairfield Subdivision Regs., § 2.1.7. The commission claims that the plaintiffs road is not a road that will be extended in the future because its radius is fifty feet rather than forty feet. The regulation, however, provides that a temporary turnaround must have a minimum of forty feet. The fact that the plaintiffs road provides a greater radius, ten feet more than the stated minimum, cannot, by itself, logically lead to the conclusion that it was not intended to be a temporary turnaround. The proposed road meets the criteria established for a temporary turnaround, i.e., a road to be extended in the future, because it has a minimum radius of forty feet.

We therefore conclude that the commission’s determination that the plaintiffs proposed subdivision road was a cul-de-sac was improper because (1) the road does meet the engineering requirements for a temporary turnaround, (2) the evidence in the record established that the plan was for the road to be extended in the future to accommodate additional lots and (3) there was no evidence in the record that the road would not be extended in the future. Accordingly, that stated reason for the commission’s denial of the plaintiffs subdivision application cannot be upheld.

II

The commission next claims that the court erroneously concluded that its denial of the plaintiffs application for her failure to provide open space was improper. It argues that the court reached that conclusion on the basis of an incorrect assumption that an immediate need for open space must be demonstrated before dedication can be required. We disagree with the commission’s interpretation of the court’s decision, and we conclude that the court properly determined that there is nothing in the record that indicates that any of the open space objectives listed in § 2.3.1 of the regulations would be furthered by the dedication of open space in the plaintiffs proposed subdivision.

At the public hearing on March 11, 2008, the issue of open space was not discussed to any significant degree. Twice it was mentioned that the size of the proposed subdivision did not trigger mandatory open space dedication: once by a commission member and once by the plaintiffs counsel. The discussion then turned to whether the subsequent addition of lots from the estate property would trigger that requirement, and the consensus was that open space would have to be provided because of the acreage of the estate property.

At only one point during the public hearing was it mentioned that the plaintiffs property was adjacent to Mill Hill School. One of the commissioners, who referred to the provision allowing the commission to require open space in small subdivisions if a dedication would further any of the stated objectives in § 2.3.1, inquired if it would be possible to provide open space in this subdivision. The plaintiffs engineer responded: “No. We’re pretty tight with the area in our lots. If you have been to that baseball field, it’s a fair distance away—the backstop [is] a fair distance away from the property line, and when you get to the property line, this property goes up fairly steeply. So, I don’t see that there would be any benefit to giving any portion of that property as open space. . . . That would severely impact the lots. It probably would eliminate one.” The issue was not discussed any further. No comments were made by commission members or by any other speakers addressing the desirability of having the plaintiff dedicate open space next to the school for recreational purposes. Significantly, no commission member ever requested that the plaintiff dedicate open space pursuant to §§ 2.3 and 2.3.1 of the subdivision regulations.

In an executive session held on March 25, 2008, the commission members discussed the plaintiff’s pending subdivision application. The public hearing had already been closed, and the plaintiff was not a participant at the executive session. The issue of whether the proposed subdivision road was a permanent cul-de-sac or a temporary turnaround was discussed at length. One of the commission members then indicated that he had visited the site and stated that “[t]here is no way I could vote for this without having an open space requirement from 2.3 of our subdivision [regulations].” Later, another commission member stated that he was in agreement with the comment about requiring an open space dedication because the proposed subdivision is near a school and “it meets our open space objective to take it even just for extra property to the school, additional buffer.” In denying the application, the failure to dedicate open space was given as one of the stated reasons for the commission’s decision.

In its June 11, 2009 memorandum of decision, the trial court found that there was substantial evidence in the record that the baseball field located on the grounds of Mill Hill School constituted “ ‘recreational land.’ ” The court determined, however, that there was no evidence in the record to show that a dedication of open space would enhance the recreational purposes or that the current field was not fully functional in its present state. Further, as noted by the court, the evidence before the commission confirmed that the plaintiffs property was significantly higher than the school property, “making it highly unlikely that any portion of the plaintiffs property could be used to enhance the existing recreational facilities on that property.”

Our review of the record supports the court’s determinations. Open space dedication for small subdivisions, such as the plaintiffs subdivision, is not mandatory; it is discretionary and may be required only if the objectives set forth in § 2.3.1 of the subdivision regulations would be furthered by such a dedication. The only evidence before the commission was that the topography of the plaintiffs land made it impractical to require a dedication, because it was uphill from the adjacent school property. There was no discussion at the public hearing as to the need for open space or the benefit that would accrue to the existing recreational area. The record is devoid of any evidence to support this stated reason for the denial of the plaintiffs application.

The judgment is affirmed.

In this opinion the other judges concurred.

       Sections 2.3.1.1 through 2.3.1.6 of the Fairfield subdivision regulations provide the following objectives: “To promote the Town’s Master Plan and other adopted open space and recreation plans for the Town.” Fairfield Subdivision Regs., § 2.3.1.1. “To provide greenbelts, hiking and bridle trails connecting existing parks, trails and open spaces.” Id., § 2.3.1.2. “To preserve land as undeveloped open space which preserves the appearance, character and natural beauty of an area.” Id., § 2.3.1.3. “To preserve land for park and recreation purposes.” Id., § 2.3.1.4. “To preserve land for the purpose of conserving natural resources.” Id., § 2.3.1.5. “To preserve and protect particular areas and terrain having qualities of natural beauty or historic interest.” Id., § 2.3.1.6.

       Section 2.1.7 of the regulations, which specifies the design standards for “turnarounds,” provides in relevant part: “A turnaround with a minimum radius of fifty (50) feet and a paved area with a radius of forty-five (45) feet shall be provided at the closed end of all public cul-de-sac streets and all private cul-de-sac streets with a right-of-way of fifty (50) feet or more. Deadend streets which are to be projected into adjoining property at some future date and which provide sole access to one or more building lots shall be provided at the closed end with a turnaround with a minimum radius of forty (40) feet. ...”

       Although the regulations do not use the word “permanent” in the definition of cul-de-sac, the definition does includes the language “will not be extended in the future”; Fairfield Subdivision Regs., § 2.1.6; which implies permanence. See LePage Homes, Inc. v. Planning & Zoning Commission, 74 Conn. App. 340, 349, 812 A.2d 156 (2002) (“Black’s Law Dictionary [6th Ed. 1990] defines permanent as [cjontinuing or enduring in the same state, status, place, or the like, without fundamental or marked change, not subject to fluctuation, or alteration, fixed or intended to be fixed; lasting; abiding; stable; not temporary or transient. . . . Generally opposed in law to temporary, but not always meaning perpetual.” [Internal quotation marks omitted.]).

       Section 2.1.7 of the regulations also refers to such a dead-end street as a temporary turnaround.

       The estate of Garofalo had not been settled prior to the submission of the subdivision application or the public hearing. During the public hearing, the plaintiff’s counsel repeatedly told the commission members that the proposed road was not a cul-de-sac as defined in § 2.1.6 of the regulations because it would be extended in the future when the estate property was subdivided. The plaintiffs engineer and surveyor, David Huntington, also spoke at the public hearing. Huntington had prepared a preliminary plan, which was submitted to the commission, showing the extension of the road to accommodate additional lots on the estate properly.

       The regulations do not define the term “future.” “Where an ordinance does not define a term, we look to the common understanding expressed in dictionaries.” (Internal quotation marks omitted.) Azzarito v. Planning & Zoning Commission, 79 Conn. App. 614, 623, 830 A.2d 827, cert. denied, 266 Conn. 924, 835 A.2d 471 (2003). The dictionary definition of future is a “time that is to come . . . .” Merriam-Webster’s Collegiate Dictionary 510 (11th Ed. 2003). The commission claims that the term must be interpreted to mean “ ‘immediate or reasonably foreseeable future,’ ” but the regulations do not include that additional language. See Buttermilk Farms, LLC v.
        Planning & Zoning Commission, 292 Conn. 317, 327, 973 A.2d 64 (2009) (“because subdivision regulations adopted by aplanning and zoning commission are in derogation of common-law property rights, the scope of the enabling statute granting the power to adopt such regulations should not be extended by construction beyond the fair import of its language, or to include by implication that which is not clearly within its express terms”).

       At oral argument before this court, the commission argued that the proposed road could not be a temporary turnaround because, if it was, one of the proposed lots would be an “illegal lot” located more than forty feet from the road. This claim was not made to the trial court nor was it briefed on appeal. We therefore decline to review it. “We generally do not consider claims raised for the first time at oral argument.” Zenon v. Mossy, 114 Conn. App. 734, 736 n.2, 970 A.2d 814 (2009).

       Although six objectives are listed, the commission indicated that it was relying on § 2.3.1.4 of the regulations, which permits the commission to require open space in small subdivisions “[t]o preserve land for park and recreation purposes.”

       At the hearing before the court on May 15, 2009, the parties stipulated that the Little League baseball field was under the control of the Fairfield parks and recreation department, that the department developed, maintained and improved the field and that the department scheduled public usage of the field after school hours and on weekends.

       We also are troubled by the fact that the issue of whether the plaintiff’s application could be denied for failure to dedicate open space did not arise until after the close of the public hearing. Because open space dedication was not mandatory, given the size of the proposed subdivision, the plaintiff would have no way of knowing whether the commission would exercise its discretion and require it without some prior notice. If the commission had requested open space dedication at the public hearing, the plaintiff would have been given the opportunity to offer it or to provide explanations as to why the objectives of § 2.3.1 would not be furthered by the requirement. Instead, at an executive session held after the public hearing, the commission members privately determined that the commission could and would require the dedication, and, instead of approving the application with that condition, it chose to deny the application.
      “Although proceedings before administrative agencies ... are informal and are conducted without regard to the strict rules of evidence, the hearings must be conducted so as not to violate the fundamental rules of natural justice. . . . Due process of law requires not only that there be due notice of the hearing but that at the hearing the parties involved have a right to produce relevant evidence, and an opportunity to know the facts on which the agency is asked to act, to cross-examine witnesses and to offer rebuttal evidence.” (Citation omitted; internal quotation marks omitted.) Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 124-25, 977 A.2d 127 (2009).


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. HECTOR ALONZO
    (AC 30725)
    Bishop, Lavine and Beach, Js.

      Argued May 17
    officially released August 30, 2011

      Neal Cone, senior assistant public defender, for the appellant (defendant).

      Raheem L. Mullins, assistant state’s attorney, with whom, on the brief, were Stephen J. Sedensky III, state’s attorney, and David Shannon, assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Hector Alonzo, appeals from the judgment of conviction, rendered following a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and assault in the second degree in violation of General Statutes § 53a-60 (a) (2). On appeal, the defendant claims that the trial court (1) violated his state constitutional right to trial by jury when it instructed the jury that it must unanimously find the defendant not guilty of the assault in the first degree charge before it properly could consider a lesser included charge of assault in the second degree and (2) violated his state constitutional rights to present a defense and to due process of law when it prohibited him from testifying about the alleged prior violent acts of the victim against a third party. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the night of February 4, 2007, the defendant went to the El Milenio Restaurant in Danbury where he encountered the two victims, Fredy Urjiles and Jose Naranjo. An altercation ensued between the defendant and the victims during which the defendant removed a box cutter from his person and stabbed the victims. The defendant was arrested and charged with attempt to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-49, assault in the first degree with a dangerous instrument in violation of § 53a-59 (a) (1) regarding his assault of Urjiles and assault in the second degree in violation of § 53a-60 (a) (2) regarding his assault of Naranjo. During the trial, the state filed a motion in limine requesting that the court prohibit the defendant from testifying about Urjiles’ alleged prior violent acts against a third party, and the court granted the motion. Following the close of evidence, and despite the defendant’s request to the contrary, the court gave the jury an acquittal first instruction, charging that it should proceed to a deliberation of the lesser included crime of assault in the second degree only after it unanimously had found the defendant not guilty of the crime of assault in the first degree. After deliberation, the jury found the defendant not guilty of the attempt to commit murder charge but found him guilty of assault in the first degree with regard to Urjiles and assault in the second degree with regard to Naranjo. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court violated his state constitutional rights to (a) trial by jury and (b) due process of law when it instructed the jury that it should proceed to deliberation of the lesser included offense of assault in the second degree only after it unanimously had determined that the defendant was not guilty of assault in the first degree.

We first set forth our standard of review. “A challenge to the validity of jury instructions presents a question of law over which this court has plenary review.” (Internal quotation marks omitted.) Mann v. Regan, 108 Conn. App. 566, 576, 948 A.2d 1075 (2008). “It is well settled that jury instructions are to be reviewed in their entirety. . . . When the challenge to a jury instruction is of constitutional magnitude, the standard of review is whether it is reasonably possible that the jury [was] misled. ... In determining whether it was . . . 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 .... Individual instructions also are not to be judged in artificial isolation .... Instead, [t]he test to be applied ... is whether the charge ... as a whole, presents the case to the jury so that no injustice will result.” (Citations omitted; internal quotation marks omitted.) State v. Makee R., 117 Conn. App. 191, 198, 978 A.2d 549, cert. granted on other grounds, 294 Conn. 912, 983 A.2d 275 (2009).

A

The defendant claims that the court violated his state constitutional right to trial by jury when it improperly instructed the jury that it should consider the lesser included offense of assault in the second degree only after it had determined that the defendant was not guilty of assault in the first degree. We disagree.

The defendant’s claim that our state constitution prohibits the court’s use of acquittal first jury instructions implicates our duty to interpret the rights and guarantees provided by the Connecticut constitution. In State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992), our Supreme Court set forth six factors to be used in analyzing an independent claim under this state’s constitution: (1) the text of the operative constitutional provisions; (2) related Connecticut precedents; (3) persuasive relevant federal precedents; (4) persuasive precedents of other state courts; (5) historical insights into the intent of our constitutional forebears; and (6) contemporary understandings of applicable economic and sociological norms, or as otherwise described, relevant public policies.

With regard to the text of the operative constitutional provision, article first, § 19, of the Connecticut constitution provides: “The right of trial by jury shall remain inviolate.” We conclude that this language is not directly beneficial to the resolution of the present issue because the provision does not address the manner of a jury’s deliberations.

While there also are no directly applicable precedents in Connecticut, our Supreme Court has narrowly described the relevant state constitutional provision as “the right which every citizen has to demand a trial in that mode; or, in other words, to be secured from having a judgment rendered against him, without the intervention of jury.” Beers v. Beers, 4 Conn. 535, 536 (1823). Our Supreme Court has held, as well, that the right to trial by jury encompasses the right to have the jury serve as the fact finder. Seals v. Hickey, 186 Conn. 337, 349-53, 441 A.2d 604 (1982) (declaring unconstitutional statute that allowed trial judge to interfere injury’s fact-finding function by giving judge discretionary power to adjust verdict in light of partial settlement with another defendant).

Although the defendant has not provided a separate federal constitutional analysis in support of his claim that the acquittal first jury instruction violates his federal constitutional right to trial by jury, we can, nevertheless, look to treatment of the federal constitutional right to a jury trial in our state constitutional analysis because the language of the state and federal constitutional provisions regarding the right to a jury trial are sufficiently similar. On the basis of these linguistic similarities, this court has determined that “federal case law can be turned to for guidance in interpreting the ambit of the fundamental right to a jury trial.” L & R Realty v. Connecticut National Bank, 46 Conn. App. 432, 440, 699 A.2d 291 (1997), rev’d on other grounds, 246 Conn. 1, 715 A.2d 748 (1998).

The United States Supreme Court has concluded that the right to trial by jury signifies “merely that enjoyment of th[at right] be not obstructed, and that the ultimate determination of issues of fact by the jury be not interfered with.” Ex Parte Peterson, 253 U.S. 300, 310, 40 S. Ct. 543, 64 L. Ed. 919 (1920).

The right to trial by jury encompasses both substantive and procedural entitlements. That is, a defendant is entitled to have the state’s charges assessed by a jury of his or her peers; additionally, a defendant is entitled to a jury process that is procedurally fair. As to the substantive right of a defendant to be tried by a panel of his peers, we agree with the defendant that it would be appropriate, as part of a constitutional analysis, to refer to the contours of that right when the common-law right was embedded in our state’s constitution. We disagree, however, with the notion that every procedure regarding jury selection and jury process in existence in 1818 was made part of the constitutional right. Our Supreme Court has recognized that distinguishing procedure from substance can be an elusive task. State v. Clemente, 166 Conn. 501, 507-508, 353 A.2d 723 (1974). Nevertheless, while there is no precise definition of either substantive or procedural law, it generally is agreed that a substantive law is one that “creates, defines, and regulates rights while a procedural law prescribes the methods of enforcing such rights or obtaining redress.” (Internal quotation marks omitted.) D’Eramo v. Smith, 273 Conn. 610, 621, 872 A.2d 408 (2005).

At its core, the right to trial by jury guarantees that the criminally accused will receive a fair trial by a panel of impartial and indifferent jurors. State v. Tucker, 226 Conn. 618, 630, 629 A.2d 1067 (1993). Moreover, it guarantees that the jury will be “impartially selected from a cross section of the community.” State v. Ferraro, 146 Conn. 59, 61, 147 A.2d 478 (1958), cert. denied, 369 U.S. 880, 82 S. Ct. 1155, 8 L. Ed. 2d 283 (1962). These entitlements are “the cornerstone of our criminal justice system”; (internal quotation marks omitted) State v. Tucker, supra, 630; and therefore, are inviolate. We find no support either in historical precedents or in the application of logic for the conclusion that the right to trial by jury necessarily encompasses the court’s instructions to the jury with regard to the process or manner of its deliberations.

Indeed, the United States Supreme Court and our Supreme Court have determined that the procedures that accompany the right to trial by jury are not inviolate. The United States Supreme Court concluded that the right to trial by jury “does not require that old forms of practice and procedure be retained. ... It does not prohibit the introduction of new methods for determining what facts are actually in issue, nor does it prohibit the introduction of new rules of evidence. Changes in these may be made. New devices may be used to adapt the ancient institution to present needs and to make of it an efficient instrument in the administration of justice. Indeed, such changes are essential to the preservation of the right.” Ex Parte Peterson, supra, 253 U.S. 309-10. Similarly, our Supreme Court has observed that although the right to trial by juiy is inviolate in its substantive capacity, there is no “corresponding right that all court rules, procedures and methods current in 1818 would remain unchanged.” Spitzer v. Haims & Co., 217 Conn. 532, 539, 587 A.2d 105 (1991). ln Spitzer, the plaintiff claimed that the trial court violated his constitutional right to trial by jury when it permitted the jurors to question the witnesses, a procedure not previously utilized in Connecticut. Id., 537, 539. Our Supreme Court concluded that a “change in procedure alone did not violate the plaintiffs constitutional right to trial by jury.” Id., 540. This determination in Spitzer underscores the notion that the right to trial by jury need not extend to every feature of jury procedures as they existed in 1818. Similarly, in the present case, the court’s acquittal first instruction to the jury is procedural because it governs the process that the jury must follow in its deliberation of the charges.

In support of his argument that the constitutional right to trial by jury includes the right of a jury to consider a lesser included offense without first concluding whether the state has proven the greater offense, the defendant relies on A Digest of the Laws of the State of Connecticut, written by former Connecticut Supreme Court Chief Justice Zephaniah Swift. In that treatise, Justice Swift describes the jury’s right to convict a defendant on the lesser included offense rather than the greater offense, asserting that “[w]here the accusation includes an offence of an inferior degree, the jury may discharge the defendant of the higher crime, and convict him of the less atrocious.” 2 Z. Swift, A Digest of the Laws of the State of Connecticut (1823) p. 413. Justice Swift later noted that “[i]n respect to the form in which a verdict should be given, which thus partially convicts, or acquits, it is holden that it ought to find specifically not guilty of the higher, and guilty of the inferior charge: and if it merely find the defendant guilty of the inferior charge, it will be of no avail." (Emphasis added.) Id., p. 414. This description appears to require the use of the acquittal first approach. The defendant argues, however, that the two aforementioned excerpts, taken together, constitute an endorsement of the “modified” acquittal first instruction, rather than the traditional acquittal first instruction. Under this approach, the jury may consider both the greater and lesser offenses in any order that it chooses. We decline to speculate, however, that the conjunctive reading of these excerpts constitutes an endorsement of the modified acquittal first instruction. To the contrary, we believe that an objective reading of these passages from Justice Swift does not lend support to the defendant’s argument based on historical factors.

Moreover, even if Justice Swift’s statements constituted an endorsement of the modified acquittal first instruction procedure, our appellate courts consistently have observed that not every aspect of the right to trial by jury that existed in 1818 is applicable today. For example, at the time of the ratification of the Connecticut constitution, an individual was required to own property in order to be eligible to serve as a juror. J. Proffatt, A Treatise on Trial by Jury, Including Questions of Law and Fact (1877) pp. 160-61. More than twenty years later, referencing the Act of 1837, our Supreme Court dispensed with the property qualification. See Ladd v. Prentice, 14 Conn. 108, 118 (1840) (asserting that act of 1837 removed freehold qualification). Despite this property ownership requirement at the time of the ratification of the Connecticut constitution, it is understood in the present day that an individual is not disqualified from a jury on the ground that he does not own property.

Similarly, in Colt v. Eves, 12 Conn. 242, 251 (1837), our Supreme Court concluded that although the city charter’s provision, which allowed the jury to be “taken from the city, and not from the body of the county,” did not conform to the exact process used in England to collect jurors, it did not violate the party’s right to trial by jury. Our Supreme Court reasoned that requisite conformity to English procedures would be impossible under the developing American system. Otherwise, the court would be obliged to prohibit then existing procedures such as the right to a jury of six or the ability of any elector to serve as a juror. Id., 252. Our Supreme Court concluded that, so long as the right to trial by jury was not impaired, “although it may be subject to new modes, and even rendered more expensive, if the public interest demanded such an alteration, it would not be a violation of the constitution.” Id. The court observed that there was a distinction between the substantive right to trial by jury, which could not be abridged, and the procedural application of such right, which was malleable. Id., 252-53.

Lastly, we have found no authority to suggest that any applicable economic or sociological norms exist that would influence our determination of the permissibility of acquittal first instructions. Pursuant to our Geisler analysis, therefore, we conclude that the defendant’s right to trial by jury was not violated by the court’s instructions with regard to the jury deliberation process.

B

The defendant also claims that the acquittal first instruction violated his state constitutional right to due process of law because it created the possibility that the jury would engage in a compromise verdict. We disagree.

The term “compromise verdict” normally is used to denote the practice of “some jurors exchang[ing] their convictions on one issue in return for concession by other jurors on another issue.” Stein v. New York, 346 U.S. 156, 178, 73 S. Ct. 1077, 97 L. Ed. 1522 (1953). Our Supreme Court has noted that although it has recognized that jurors may in fact compromise, it has never sought to encourage compromise and certainly has never openly advocated it. State v. Sawyer, 227 Conn. 566, 586, 630 A.2d 1064 (1993). In advancing this argument, the defendant invites this court to speculate that the jury likely would reach a compromise verdict simply because it was charged with an acquittal first instruction. We decline to engage in such speculation as we are unconvinced by the defendant’s argument that an acquittal first instruction creates any momentum toward a compromise verdict.

On the basis of this precedent and our review of the court’s instruction to the jury in the present case, we conclude that there was no reasonable possibility that the jury believed that a compromise verdict was permissible.

II

The defendant next claims that the court improperly prohibited him from testifying about Urjiles’ alleged prior violent acts against a third party in violation of his state constitutional rights to present a defense and to due process of law. We disagree.

The following additional facts are necessary to the resolution of this issue. During the trial, the state filed a motion in limine requesting that the court preclude the defendant from testifying in regard to any alleged act of violence by Urjiles toward anyone other than the defendant. At trial, the defendant objected to the state’s motion on the grounds that the failure to admit such evidence would curtail his ability to present a defense and would preclude evidence that demonstrated the defendant’s state of mind at the time that he committed the crime. The court granted the state’s motion and precluded the evidence on the grounds that State v. Muhammad, 91 Conn. App. 392, 881 A.2d 468, cert. denied, 276 Conn. 922, 888 A.2d 90 (2005), prohibited testimony regarding Urjiles’ alleged specific acts of violence against third parties. We agree.

In Muhammad, the court refused to allow the defendant to testify about his victim’s alleged prior assault of a third party. This court concluded that although “[ejvidence of specific acts of violence previously committed by a victim against a defendant offered in support of the defendant’s self-defense claim [i]s admissible to show the state of mind of the defendant at the time of the [incident]”; State v. Stavrakis, 88 Conn. App. 371, 379-80, 869 A.2d 686, cert. denied, 273 Conn. 939, 875 A.2d 45 (2005), citing State v. Collins, 68 Conn. App. 828, 838, 793 A.2d 1160, cert. denied, 260 Conn. 941, 835 A.2d 58 (2002); we have “decline[d] to extend th[is] exception to alleged prior violent acts by the victim against a third party.” State v. Muhammad, supra, 91 Conn. App. 406 n.10. Because the defendant in the present case sought to testify about the alleged prior violent acts of Urjiles against a third party, the court properly denied the admission of such testimony.

On the basis of our review of the entire record, we conclude that the ruling did not violate the defendant’s state constitutional right to present a defense or to due process of law. Accordingly, we conclude that the court did not abuse its discretion in prohibiting the defendant from testifying about the alleged prior violent acts of Urjiles against a third party.

The judgment is affirmed.

In this opinion the other judges concurred.

       We will hereinafter refer to this instruction as an “acquittal first” instruction. See State v. Sawyer, 227 Conn. 566, 586, 630 A.2d 1064 (1993).

       The defendant claims, as well, that the acquittal first instruction violated his federal constitutional right to trial by jury and to due process of law. Because, as noted subsequently in this opinion, the federal and Connecticut constitutions contain parallel language, and previous decisional law has indicated that we may look to treatment of the federal constitutional right to trial by jury to assess our similar state provision, we need not provide a separate analysis of the defendant’s federal constitutional claim.

       The defendant alleged that the victim had physically and sexually assaulted a third party with whom both the defendant and the victim allegedly had a personal relationship.

       The defendant’s request to charge stated in relevant part: “The defendant excepts to any instruction requiring that the jury be satisfied unanimously that the defendant is not guilty of the greater offense before deliberating on the lesser included offense, and hereby requests this Honorable Court, pursuant to Practice Book §§ 42-17 and 42-18, Article I, Sections 8, 9 and 19 of the Connecticut constitution, and the 5th, 6th, and 14th Amendments to the United States Constitution, to charge the jury with the following request: If you find that the elements of assault in the first degree have not been proven beyond a reasonable doubt, or if you are unable to agree unanimously that the elements of assault in the first degree have been so proved, you may then consider whether the defendant is guilty of the lesser included offense of assault in the second degree. In other words, when you deliberate you may consider the lesser included offense if you cannot reach agreement on the greater offense.”

       The state argues that State v. Sawyer, 227 Conn. 566, 630 A.2d 1064 (1993), is dispositive with regard to the permissibility of acquittal first jury instructions in Connecticut. Our Supreme Court in Sawyer, however, did not determine the federal or state constitutionality of such instructions but, rather, addressed them as a matter of common law. Although the language of Sawyer is broad, we conclude that the issue of the constitutionality of the acquittal first jury instruction was not decided in Sawyer and therefore requires an independent analysis in the appeal at hand.

       In performing the Geisler analysis, we also must consider the relevant federal and state precedents. After a thorough search, we are able to find only one federal or state court appellate decision that explicitly declared the acquittal first jury instruction unconstitutional and that determination later was vacated by the United States Supreme Court on appeal. See Spisak v. Mitchell, 465 F.3d 684, 708-11 (6th Cir. 2006), vacated sub nom. Hudson v. Spisak, 552 U.S. 945, 128 S. Ct. 373, 169 L. Ed. 2d 257 (2007). Moreover, in reference to a death penalty case, the United States Supreme Court observed, in dicta, that it never has concluded that jury instructions were unconstitutional for requiring the jury to “unanimously reject a death sentence before considering other sentencing alternatives.” (Internal quotation marks omitted.) Smith v. Spisak, 558 U.S. 139, 149, 130 S. Ct. 676, 175 L. Ed. 2d 595 (2010); see also Bobby v. Mitts, U.S. , 131 S. Ct. 1762, 1765, 179 L. Ed. 2d 819 (2011) (relying on its decision in Smith v. Spisak, supra, 149, to conclude that similar jury instructions were not invalid).
      Additionally, several federal circuit courts and state courts have concluded that the acquittal first jury instruction is not constitutionally deficient. See, e.g., United States v. Tsanas, 572 F.2d 340, 346 (2d Cir.) (concluding that neither reasonable efforts instruction nor acquittal first instruction was wrong as matter of law), cert. denied, 435 U.S. 995, 98 S. Ct. 1647, 56 L. Ed. 2d 84 (1978). In Tsanas, the United States Court of Appeals for the Second Circuit also determined that the court could give the instruction that it preferred if the defendant expressed no choice. Id. If the defendant expressed a choice, however, the Second Circuit concluded that the court should give the form of instruction which the defendant seasonably elects. Id. Because this language represents a discretionary policy preference rather than a legal mandate, it is of no avail to the defendant’s constitutional argument.
      See also United States v. Harvey, 701 F.2d 800, 806 (9th Cir. 1983) (finding no error with acquittal first instruction), overruled on other grounds by United States v. Chapel, 55 F.3d 1416, 1417 (9th Cir. 1995); United States v. Moccia, 681 F.2d 61, 64 (1st Cir. 1982) (referring to acquittal first jury instruction as “well-established”); State v. Goodwin, 278 Neb. 945, 965-66, 774 N.W.2d 733 (2009) (concluding that acquittal first instructions are not constitutionally deficient); People v. Boettcher, 69 N.Y.2d 174, 183, 505 N.E.2d 594, 513 N.Y.S.2d 83 (1987) (concluding that court’s acquittal first instruction was acceptable); State v. Davis, 266 S. W.3d 896, 905 (Tenn. 2008) (concluding that acquittal first instructions did not offend defendant’s right to jury trial under Tennessee constitution), cert. denied, 557 U.S. 906, 129 S. Ct. 2790, 174 L. Ed. 2d 294 (2009); State v. Labanowski, 117 Wn. 2d 405, 424, 816 P.2d 26 (1991) (concluding that neither “ ‘acquittal first’ ” nor “ ‘unable to agree’ ” type of instruction was erroneous as matter of law).

       Article first, § 8, of the constitution of Connecticut provides in relevant part: “In all criminal prosecutions, the accused shall have a right ... in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. . . .”

       The defendant also claims that the acquittal first instruction encroaches on the province of the jury as fact finder. This argument, however, previously was resolved by our Supreme Court in State v. Sawyer, 227 Conn. 566, 579, 630 A.2d 1064 (1993) (“[i]t is, moreover, the duty of the court to structure the jurors’ deliberations in a manner that permits them to perform in an orderly fashion their fact-finding function in relation to the charged crime and any lesser included offenses”). Additionally, the defendant argues that an acquittal first jury instruction is problematic when utilized in conjunction with a cognate pleadings approach in which the greater offense may not encompass all of the elements of the lesser included offense. The defendant claims that by preventing the jury from considering the lesser offense before deciding the greater offense, the jury is thereby precluded from considering elements of the lesser offense that could cast reasonable doubt on the state’s claims regarding the greater offense. In making this argument, however, the defendant asks this court to speculate that the jury would not follow the court’s instructions regarding the state’s burden of proof regarding the greater offense, a speculation we are unwilling to undertake. State v. Mitchell, 110 Conn. App. 305, 314, 955 A.2d 84, cert. denied, 289 Conn. 946, 959 A.2d 1012 (2008). Additionally, because the defendant does not claim that the greater offense in this instance does not contain all the elements of the lesser offense, this aspect of his claim is tantamount to a request for an advisory opinion. For both reasons, we reject this claim as lacking in merit.

       “The jury is presumed, in the absence of a fair indication to the contrary, to have followed the court’s instructions.” (Internal quotation marks omitted.) State v. Wallace, 290 Conn. 261, 276, 962 A.2d 781 (2009).

       Because State v. Muhammad, supra, 91 Conn. App. 392, is dispositive of this issue, we need not address the defendant’s second claim that Urjiles’ alleged prior violent acts against a third party were not too remote in either time or connection to preclude their admission.


author: SCHALLER, J.

text:
    JP MORGAN CHASE BANK, SUCCESSOR TRUSTEE (BANK ONE, NATIONAL ASSOCIATION) v. DEAN A. GIANOPOULOS ET AL.
    (AC 32681)
    DiPentima, C. J., and Beach and Schaller, Js.

      Argued May 26
    officially released August 30, 2011

      Sophie Gianopoulos, pro se, the appellant (defendant).

      Jessica L. Braus, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The self-represented defendant Sophie Gianopoulos appeals from the judgment of strict foreclosure, as opened and modified, rendered in favor of the plaintiff, JP Morgan Chase Bank, successor trustee in interest to Bank One, National Association. She claims that during a hearing on the plaintiffs motion to open the judgment for the purpose of setting new law days, when attorney Stuart Ratner identified himself as representing “the defendant,” the court abused its discretion by failing to inquire whether Ratner represented her interests as well as those of Dean A. Gianopoulos, the named defendant. The plaintiff maintains that, in light of the procedural history of this case and the defendant’s failure to provide any record in support of her claim on appeal, this appeal was taken solely for the purpose of delay. It requests that this court dismiss the appeal and enter the order nunc pro tunc. We dismiss the appeal but decline to enter the order nunc pro tunc.

The following facts and procedural history are relevant. The plaintiff commenced this foreclosure action in December, 2007. In its complaint, it alleged that Dean A. Gianopoulos defaulted on a note secured by a mortgage on the subject premises, a residence in Stamford. It further alleged that the defendant is the record owner of the premises and is in possession thereof. Ratner filed an appearance on the defendant’s behalf on January 8, 2008, and filed an appearance on behalf of Dean A. Gianopoulos on February 1, 2008. The court rendered judgment of foreclosure by sale on February 4, 2008, and set a sale date of August 9, 2008.

The defendant, appearing pro se, filed a petition in the United States Bankruptcy Court for the District of Connecticut (Bankruptcy Court) dated July 8, 2008,. which served to stay the foreclosure proceedings automatically. The plaintiff obtained from the Bankruptcy Court an order granting it relief from the bankruptcy stay. The plaintiff filed a motion to open the foreclosure judgment for the purpose of setting a new sale date, which the court granted, setting a sale date of November 1, 2008. The sale did not go forward as scheduled because the defendant filed notice that the Bankruptcy Court had revived the stay. The bankruptcy action eventually was dismissed without prejudice in July, 2009. On the plaintiffs motion, the court opened the judgment for the purpose of setting a new sale date, which the court set for October 31, 2009. Days before the scheduled sale, the defendant again sought bankruptcy protection, which again stayed the foreclosure proceedings. The Bankruptcy Court dismissed the action on December 16, 2009.

On December 18, 2009, the plaintiff filed another motion to open the foreclosure judgment for the purpose of resetting the sale date. On January 25, 2010, the trial court ordered that the foreclosure by sale be converted to a strict foreclosure and set February 23, 2010, as the law day for the owner of the equity of redemption. Prior to the law day, the defendant moved the Bankruptcy Court to vacate the dismissal of her petition, and the foreclosure action was again stayed. The bankruptcy action was dismissed on August 5, 2010.

On August 6, 2010, the plaintiff filed another motion to open the foreclosure judgment; this time, the motion was for the purpose of setting a new law day. At a hearing on the motion on August 16, 2010, the court made an updated finding of debt and an updated finding of the fair market value of the property and rendered judgment setting the new law days to begin September 21, 2010.

On September 7,2010, the defendant filed the present appeal and, consequently, the automatic appellate stay provision pursuant to Practice Book § 61-11 (a) is in

effect. The plaintiff filed amotion to dismiss this appeal nunc pro tunc, which this court denied without prejudice to the plaintiff including those arguments in its brief on the merits.

The defendant’s sole claim of error on appeal is that the court abused its discretion because it failed to inquire whether Ratner represented both her and Dean A. Gianopoulos at the hearing. She appears to argue that, as a result, her interest was not properly represented at the August 16, 2010 hearing on the plaintiffs motion because there was a “distinct possibility that . . . Ratner was purporting to express agreement only on behalf of Dean [A. Gianopoulos] . . . .” The defendant filed with this court a transcript of the hearing in which Ratner identified himself as representing “the defendant.” In her brief, the defendant argues that it was incumbent on the court to consider “the relevant circumstances to determine whether there was actual agreement on the foreclosure orders, including the law date.” She cites a single case for the general proposition that the trial court may consider all relevant circumstances to ensure that “complete justice is done,” but provides no facts or analysis to suggest that the court acted improperly in any way.

The appellant is responsible for providing this court with an adequate record for review; see Stechel v. Foster, 125 Conn. App. 441, 444, 8 A.3d 545 (2010), cert. denied, 300 Conn. 904, 12 A.3d 572 (2011); Practice Book § 61-10; which includes providing a memorandum of decision or a signed transcript of the court’s oral decision pursuant to Practice Book § 64-1. “Despite an appellant’s failure to satisfy the requirements of Practice Book § 64-1, this court has, on occasion, reviewed claims of error in light of an unsigned transcript as long as the transcript contains a sufficiently detailed and concise statement of the trial court’s findings.” (Internal quotation marks omitted.) Stechel v. Foster, supra, 445. The defendant’s claim of error is that the court failed to inquire whether counsel represented both civil defendants. The defendant provided an unsigned transcript of the challenged proceedings. The transcript provided allows us to conclude that the court did not, in fact, make such an inquiry. The defendant, however, offers no factual or legal basis for us to conclude that the court should have done otherwise.

The transcript contains detailed findings regarding the foreclosure judgment and demonstrates that the court canvassed Ratner about each updated aspect of the judgment. The court and Ratner specifically discussed whether the defendant’s bankruptcy action had been dismissed. The trial court file reveals that Ratner filed an appearance on behalf of the defendant on January 8,2008, and there is no indication that the defendant ever filed an appearance in the trial court in lieu of or in addition to Ratner’s appearance in the present matter prior to that proceeding. On this record, and considering this procedural history, we cannot conceive of a factual or legal basis that would allow us to conclude that this appeal was taken for anything other than dilatory purposes. See Glenfed Mortgage Corp. v. Crowley, 61 Conn. App. 84, 88-89, 763 A.2d 19 (2000); Wilton v. McGovern, 33 Conn. App. 517, 520, 636 A.2d 870, cert. denied, 228 Conn. 929, 640 A.2d 116 (1994); Connecticut National Bank v. Zuckerman, 31 Conn. App. 440, 442, 624 A.2d 1163 (1993). The appeal must be dismissed.

We next consider whether we should grant the plaintiff the extraordinary relief it has requested, which is to dismiss the appeal nunc pro tunc. Neither this court nor our Supreme Court has dismissed an appeal from a foreclosure judgment nunc pro tunc in a published decision. A discussion of the law of foreclosure is useful. Generally, foreclosure means to cut off the equity of redemption, the equitable owner’s right to redeem the property. See Barclays Bank of New York v. Ivler, 20 Conn. App. 163, 166, 565 A.2d 252, cert. denied, 213 Conn. 809, 568 A.2d 792 (1989). “Under our law, an action for strict foreclosure is brought by a mortgagee who, holding legal title, seeks ... to foreclose an equity of redemption unless the mortgagor satisfies the debt on or before his law day. Cook v. Bartholomew, 60 Conn. 24, 27, 22 A. 444 (1891).” Barclays Bank of New York v. Ivler, supra, 166. The holder of the equity of redemption has until the passing of his law day to redeem the premises. Law days are set for subsequent encumbrancers in the inverse order of their priorities thereafter. The effect of the passing of the law day is that such right to redeem the premises is cut off and title to the property becomes unconditional in the encumbrancer. See City Lumber Co. of Bridgeport, Inc. v. Murphy, 120 Conn. 16, 25, 179 A. 339 (1935). “[L]aw days are ineffective pending the [appellate] stay because to treat them otherwise would carry out the judgment in violation of the stay.” RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 683-84, 899 A.2d 586 (2006). Accordingly, when this court dismisses an appeal from a judgment of strict foreclosure, we remand to the trial court for the purpose of setting new law days. Connecticut National Bank v. Zuckerman, supra, 31 Conn. App. 442; see also Dreambuilders Construction, Inc. v. Diamond, 121 Conn. App. 554, 564, 997 A.2d 553 (2010) (affirming judgment and remanding for purpose of setting new law day); Chase Home Finance, LLC v. Fequiere, 119 Conn. App. 570, 580, 989 A.2d 606 (same), cert. denied, 295 Conn. 922, 991 A.2d 564 (2010).

The plaintiff is, in effect, asking this court to terminate the appellate stay retroactively, which would leave this case in a posture as if the law days had run as ordered beginning on September 21, 2010. The plaintiff maintains that this result is necessary to save the plaintiff from unjust prejudice because it would be inequitable for this court to permit the defendant to continue to delay the running of the law days. The plaintiff cites cases for the proposition that a bankruptcy court has the authority to grant retroactive relief from the automatic bankruptcy stay, but cites no authority supporting its position that an appellate court can grant such relief, in effect, by dismissing an appeal nunc pro tunc.

Although we recognize that “[a] foreclosure action is an equitable proceeding,” we also recognize that “[t]he determination of what equity requires is a matter for the discretion of the trial court.” (Emphasis added; internal quotation marks omitted.) Webster Trust v. Mardie Lane Homes, LLC, 93 Conn. App. 401, 405-406, 891 A.2d 5 (2006). Practice Book § 61-11 (c) provides in relevant part that “[i]f the judge who tried the case is of the opinion that (1) an extension to appeal is sought, or the appeal is taken, only for delay or (2) the due administration of justice so requires, the judge may at any time after a hearing, upon motion or sua sponte, order that the stay be terminated.” (Emphasis added.) The trial court’s decision to terminate an appellate stay is subject to review only pursuant to a timely motion for review. Lucas v. Deutsche Bank National Trust Co., 103 Conn. App. 762, 763, 931 A.2d 378 (dismissing as moot appeal from discharge of judgment lien when defendant did not file motion for review of order terminating appellate stay), cert. denied, 284 Conn. 934, 935 A.2d 151 (2007); see also First Connecticut Capital, LLC v. Homes of Westport, LLC, 112 Conn. App. 750, 761, 966 A.2d 239 (2009); Practice Book § 61-14.

A dismissal nunc pro tunc not only would affect the defendant’s right to redeem, but also would affect the rights of subsequent encumbrancers, whose interests would be foreclosed by the running of the law days subsequent to the law day set for the defendant. Our rules of practice and well established precedent provide a party with a means to obtain from the trial court relief from an appellate stay. The plaintiff did not pursue this relief adequately, and we decline to afford it the extraordinary relief it has requested.

The appeal is dismissed and the case is remanded for the purpose of setting new law days.

In this opinion the other judges concurred.

       The plaintiff also named Central Credit Union, Questech Financial, LLC, and the United States Internal Revenue Service as defendants. Because only Sophie Gianopoulos has appealed, we refer to her as the defendant for purposes of this opinion.

       The filing of a bankruptcy petition with the Bankruptcy Court operates as a stay, applicable to all actions or proceedings against the debtor. The Bankruptcy Court, however, has the power to grant relief from the automatic stay. See Stec v. Raymark Industries, Inc., 114 Conn. App. 81, 85 n.3, 968 A.2d 960 (2009), rev’d on other grounds, 299 Conn. 346, 10 A.3d 1 (2010).

       The record does not contain a memorandum of decision or a transcript of the proceedings concerning this change, neither party has provided to this court an explanation for it, and no timely appeal was taken from this decision.

       On August 5, 2010, the Bankruptcy Court conducted a hearing on the defendant’s motion to vacate the dismissal, as well as the plaintiffs motion for a relief from stay. The defendant made an oral motion to continue the hearing. The court denied this motion and dismissed the case.

       Practice Book § 61-11 (a) provides in relevant part: “Except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment or order shall be automatically stayed until the time to take an appeal has expired. If an appeal is filed, such proceedings shall be stayed until the final determination of the cause. . . .”

       For example, in some circumstances, a trial court may be required to inquire as to whether a conflict of interest exists in the representation of a criminal defendant, where conflict free representation is of “constitutional dimension.”Inre Christina M., 280 Conn. 474, 488-89, 908 A.2d 1073 (2006). Even in that context, however, it is well established that “[t]rial courts necessarily rely in large measure upon the good faith and good judgment of defense counsel.” (Internal quotation marks omitted.) Id., 490. “[I]t is a high threshold that must be satisfied before the trial court affirmatively must inquire as to whether a conflict exists.” Id.

       “The underlying principle on which judgments nunc pro tunc are sustained is that such action is necessary in furtherance of justice and in order to save a party from unjust prejudice . . . caused by the acts of the court or the course of judicial procedure. In other words, the practice is intended merely to make sure that one shall not suffer for an event which he could not avoid. . . . Ireland v. Connecticut Co., 112 Conn. 452, 454, 152 A. 614 [(1930) (ordering interest paid nunc pro tunc when trial court erroneously granted motion to set aside verdict)].” (Citation omitted; internal quotation marks omitted.) Gary Excavating Co. v. North Haven, 163 Conn. 428, 430, 311 A.2d 90 (1972) (ordering interest on judgment paid nunc pro tunc).

       Practice Book § 61-14 provides in relevant part: “The sole remedy of any party desiring the court to review an order concerning a stay of execution shall be by motion for review under Section 66-6. Execution of an order of the court terminating a stay of execution shall be stayed for ten days from the issuance of notice of the order, and if a motion for review is filed within that period, the order shall be stayed pending decision of the motion, unless the court having appellate jurisdiction rules otherwise. . . .”

       At oral argument, the plaintiff represented to this court that it had obtained from the other defendants of record a stipulation that each would not object to the relief from the appellate stay being granted nunc pro tunc, which stipulation was filed with the trial court in February, 2011. See footnote 10 of this opinion.

       In November, 2010, after the law days had passed, the plaintiff filed a motion to terminate the appellate stay pursuant to Practice Book § 61-11 (d). The trial court did not act on the plaintiffs motion, and the plaintiff failed to pursue it further. This court, consequently, is without a trial court decision to review. “It is well settled that [an appellate] court cannot find facts, nor, in the first instance, draw conclusions of facts from primary facts found, but can only review such findings to see whether they might legally, logically and reasonably be found.” (Internal quotation marks omitted.) Appliances, Inc. v. Yost, 186 Conn. 673, 676-77, 443 A.2d 486 (1982); cf. Webster Trust v. Mardie Lane Homes, LLC, supra, 93 Conn. App. 404 n.6 (noting that this court granted defendant’s motion for review and vacated trial court’s ruling terminating appellate stay).