text:
    State of Connecticut v. James Leroy
    (11187)
    Lavery, Landau and Freedman, Js.
    Submitted March 24
    decision released June 27, 1995

      Temmy Ann Pieszak, assistant public defender, for the appellant (defendant).

      Jack W. Fischer, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, chief state’s attorney, and Leah Hawley and Keith Duboff assistant state’s attorneys, for the appellee (state).
   Landau, J.

This matter is before us on remand from our Supreme Court. State v. Leroy, 232 Conn. 1, 653 A.2d 156 (1995). The defendant appealed from the judgment of conviction, rendered after a jury verdict, of assault in the second degree with a motor vehicle while intoxicated in violation of General Statutes (Rev. to 1983) § 53a-60d (a). He claimed that the trial court improperly (1) instructed the jury as to proximate cause, (2) denied a motion to strike expert testimony on the ground of lack of an evidentiary foundation and (3) instructed the jury as to reasonable doubt thereby diluting the state’s burden of proof. When this matter was first before us, we agreed with the defendant’s first claim and, accordingly, reversed the judgment of the trial court and ordered a new trial. State v. Leroy, 33 Conn. App. 232, 242, 635 A.2d 305 (1993), rev’d, 232 Conn. 1, 653 A.2d 161 (1994). Upon certification, our Supreme Court reversed our decision and remanded the case to this court for consideration of the defendant’s remaining claims. State v. Leroy, supra, 232 Conn. 17.

A summary of the facts that the jury could have reasonably found is as follows. On September 29, 1984, at approximately 3 a.m., the defendant was involved in a two vehicle collision with Leslie Daniel in Enfield. Ralph Adamczyk was the only eyewitness to the accident. He was traveling behind Daniel’s, car and observed both headlights of the defendant’s oncoming car as it came around a corner. As the defendant’s car approached, the driver’s side headlight disappeared twice from Adamczyk’s view. Both cars swerved to avoid a collision. At the accident scene, police officers noted the smell of alcohol on the defendant, who had difficulty maintaining his balance and exhibited slurred speech. The defendant was unable to perform two field sobriety tests satisfactorily and his subsequent breathalyzer test yielded a blood alcohol reading of 0.215. Daniel was seriously injured as a result of the accident.

I

The defendant first claims that the trial court improperly denied his motion to strike expert testimony on the ground of lack of an evidentiary foundation. He argues that the court permitted the state to offer an expert opinion based on a fact not in evidence.

The following additional facts are pertinent to this claim. The state presented the expert testimony of Joel Milzoff, chief of toxicology for the state department of health. The state asked Milzoff to give his opinion of the number of alcoholic beverages that an individual weighing 170 pounds would have had to consume to arrive at a blood alcohol reading of 0.215. The defendant objected to this question on the ground that evidence of his body weight had not been presented. The trial court permitted the question subject to the state’s connecting it to the defendant’s weight.

Milzoff then testified that an individual having a blood alcohol concentration of 0.215 and weighing 170 pounds would have had to consume a minimum of the equivalent of ten and one-half twelve ounce beers. When asked to assume that the same individual ate a certain meal at about 5 p.m., drank during the course of the evening until approximately 1 a.m. and took the breath test at 4:07 a.m., Milzoff stated that the individual would have had to consume at least thirteen and one-half twelve ounce beers.

Later in its case, the state presented Officer Patrick Droney of the Enfield police department, who had processed the defendant following his arrest. Droney testified that he believed that the defendant had told him that he weighed 170 pounds. Droney identified an alcohol influence report as the one that he had filled out in reference to the defendant on the night of the defendant’s arrest. The report, which was marked for identification only, indicated that the defendant’s weight was 170 pounds. Droney stated that he recorded the background information, including the defendant’s weight, before the defendant took the breathalyzer test.

During cross-examination, after viewing the videotape taken during the processing of the defendant, Droney admitted that the defendant did not state his weight on the tape. Droney stated that his earlier testimony that he had recorded the defendant’s weight prior to the breathalyzer test had been his best recollection. After viewing the tape, Droney testified that he could not specifically recall the defendant’s stating his weight and that he could have recorded that information after the breathalyzer test. Droney insisted, however, that if the defendant’s weight was included in his report, which it was, he wrote it there.

On redirect examination, the state asked Droney if he could have learned the defendant’s weight from his driver’s license. While Droney recalled having seen the license, he could not recall if the license stated the defendant’s weight. Finally, the state asked Droney, “You didn’t make [his weight] up, though, did you?” Droney responded that he had not. At the close of the state’s evidence, the defendant moved to strike that portion of Milzoff’s testimony predicated on a body weight of 170 pounds on the ground that the state had not placed the defendant’s weight into evidence. The trial court denied the defendant’s motion.

“The facts assumed in a hypothetical question must have their basis in the evidence on the record. See Engelke v. Wheatley, 148 Conn. 398, 410-11, 171 A.2d 402 (1961); see generally McCormick, Evidence (2d Ed. 1972) § 14. Whether a proper foundation has been laid to support a hypothetical question is an issue of fact for the trial court. Spoto v. Hayward Mfg. Co., 2 Conn. App. 663, 670, 482 A.2d 91 (1984). . . . ‘ “[W]here the admissibility of evidence depends upon a preliminary question of fact, to be determined by the court, its decision is not to be reversed unless there is clear and manifest error.” Engelke v. Wheatley, [supra, 411].’ Spoto v. Hayward Mfg. Co., supra [670].” (Citations omitted.) Soehard v. St. Vincent’s Medical Center, 8 Conn. App. 6, 9-10, 510 A.2d 1367 (1986).

The issue, then, is whether the trial court properly determined that the defendant’s body weight was a fact in evidence. Droney testified on direct examination that he believed that the defendant told him that his weight was 170 pounds. “[I]t is fundamental that a witness must base his evidence on personal knowledge. Gray v. Mossman, 91 Conn. 430, 437-38, 99 A. 1062 (1917); Daily v. Spann, 110 Conn. 312, 313, 147 A. 807 (1929); 2 Wigmore, Evidence (3d Ed.) 657.” State v. De Santis, 178 Conn. 534, 543, 423 A.2d 149 (1979). Droney’s testimony was based on a statement made to him by the defendant. Thus, Droney’s testimony on direct examination effectively put the defendant’s body weight into evidence. The fact that cross-examination may have cast some doubt on the accuracy of Droney’s recollection or on his credibility goes to the weight to be accorded his testimony by the jury, rather than its admissibility. See State v. Sauris, 227 Conn. 389, 406-407, 631 A.2d 238 (1993); State v. Butler, 36 Conn. App. 525, 536, 651 A.2d 1306 (1995). The hypothetical question posed to Milzoff, then, was based on facts in evidence. For this reason, we conclude that the trial court was correct in denying the defendant’s motion to strike Milzoff’s testimony.

II

The defendant also claims that the trial court’s instructions on reasonable doubt deprived him of a fair trial by diluting the state’s burden of proof. He argues that the court improperly instructed the jury that “if all the evidence has been impartially and thoroughly reviewed by you and it produces in your mind a settled and an abiding belief that you would be willing to act upon it in matters of the highest importance relating to your own affairs, then in that event it would be free from a reasonable doubt and you should declare the defendant to be guilty.” Within this sentence, the defendant specifically challenges the court’s language as to “a settled and abiding belief” and the jurors’ willingness to act.

The defendant concedes that he did not properly preserve this claim, but seeks review pursuant to State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Because this court rejected a similar claim in State v. Ober, 24 Conn. App. 347, 358-59, 588 A.2d 1080, cert. denied, 219 Conn. 909, 593 A.2d 134, cert. denied, 502 U.S. 915, 112 S. Ct. 319, 116 L. Ed. 2d 26 (1991), however, we conclude that the defendant has failed to show that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial.

In Ober, we stated that “[i]n reviewing a constitutionally based challenge to the court’s instructions to the jury, we must examine the charge as a whole to determine whether it is reasonably possible that the jury was misled by the challenged instruction. State v. Snook, 210 Conn. 244, 275-76, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989); State v. Bailey, 209 Conn. 322, 338, 551 A.2d 1206 (1988). The defendant in this case objects only to one sentence in the trial court’s instructions on reasonable doubt. ‘Even if the phrase were incorrect, one single misstatement in the context of an otherwise appropriate charge can be overlooked.’ State v. Kelly, 23 Conn. App. 160, 166, 580 A.2d 520 (1990).” Id., 358.

Our review of the charge as a whole in this case reveals that, as in Ober, the trial court’s instructions on reasonable doubt gave the jurors a clear understanding of the state’s burden of proof. Consequently, we conclude that the defendant’s claim is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       In its opinion reversing this court’s original decision, the Supreme Court stated that the defendant was charged under General Statutes (Rev. to 1985) § 53a-60d. The offense having occurred on September 29, 1984, the statute in effect was General Statutes (Rev. to 1983) § 53a-60d. General Statutes (Rev. to 1983) § 53a-60d (a) provides: “A person is guilty of assault in the second degree with a motor vehicle while intoxicated when, in consequence of his intoxication while operating a motor vehicle, he causes serious physical injury to another person. For the purposes of this section, ‘intoxication’ shall include intoxication by alcohol or by drug or both.”

       After being transported to the police station, the defendant was escorted into a processing room. A videotape recorded the processing from the time the defendant walked into the room until he took the breathalyzer test.

       In its ruling, the trial court stated: “My recollection of the testimony of the officer is that he did specifically indicate that he obtained certain factual information, and that factual information was obtained from the defendant, and that one of those facts that he obtained was his weight, height and then other factors which were indicated on the alcohol influence report, to which he testified after refreshing his recollection.”

       Under State v. Golding, supra, 213 Conn. 239-40, the defendant can prevail on an unpreserved claim of constitutional error “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.”

       In State v. Ober, supra, 24 Conn. App. 358, the defendant claimed that the court improperly instructed the jury that “ ‘if all of the evidence has been impartially and thoroughly reviewed by you and it produces in your mind a settled and abided belief that you would be willing to act upon in matters of the highest importance relative to your own affairs, then in that event you would be free from a reasonable doubt and should declare the defendant to be guilty.’ ”


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    General Accident Insurance Company of America v. Powers, Bolles, Houlihan and Hartline, Inc.
    (13272)
    Foti, Lavery and Landau, Js.
    Argued April 20
    decision released June 27, 1995

      William F. Corriqan, for the appellant-appellee (plaintiff).

      Joseph T. Sweeney, with whom was Daniel P. Scapel-lati, for the appellee-appellant (defendant).
   Foti, J.

The underlying action in this case was brought by the plaintiff insurance carrier against the defendant insurance agency. The action alleged both breach of contract and negligence on the part of the defendant. The jury returned a verdict in favor of the plaintiff on the breach of contract claim and in favor of the defendant on the negligence claim. The plaintiff filed motions to set aside the verdict and for additur, which the trial court denied. The defendant filed a motion to set aside the verdict on the breach of contract claim only, which the trial court denied. The plaintiff appeals, claiming that the trial court improperly (1) denied its motion for additur, (2) refused to submit separate verdict forms to the jury, (3) refused to instruct the jury as to the writing requirement of General Statutes § 38a-336 (a) (2), and (4) precluded one of the plaintiffs expert witnesses from testifying as to whether the writing requirement of § 38a-336 (a) (2) was satisfied. The defendant has filed a cross appeal, claiming that the trial court improperly denied its motion to set aside the verdict on the breach of contract claim.

The relevant facts are as follows. On January 19, 1990, the plaintiff and the defendant were parties to an insurance agency agreement. At that time, the defendant processed an application from Barbara Zakr-zewski to the plaintiff, requesting automobile insurance for each of two automobiles owned by Zakrewski. The application form utilized by the plaintiff was entitled the “Acord Personal Automobile Application.” This form was completed by the defendant and signed by Zakrzewski. It requested $100,000 of liability coverage and $40,000 of uninsured-underinsured motorist coverage for each of her two automobiles. At the time of Zakrzewski’s application for automobile insurance, General Statutes (Rev. to 1989) § 38-175c (now § 38a-336) required that every automobile liability insurance policy “issued or renewed on and after July 1,1984” was to have uninsured motorist coverage equal to the liability coverage of the policy “unless the insured requests in writing a lesser amount.”

On July 19,1990, Zakrzewski’s son, John Sliwka, was seriously injured in a motor vehicle accident when the car in which he was a passenger went off the road and overturned. Sliwka filed a claim against the operator’s insurance carrier, which paid its policy limit of $20,000. Sliwka then filed a claim against the plaintiff for underinsured motorist coverage under Zakrzewski’s policy. Sliwka alleged that there had been no written request by Zakrzewski for uninsured-underinsured motorist coverage in an amount less than the liability coverage, as required under § 38a-336. Because the policy provided for $100,000 of liability coverage, Sliwka filed a claim based on $100,000 of uninsured-underinsured motorist coverage for each of two vehicles. Sliwka’s claim was for $180,000.

After determining that the Acord application signed by Zakrzewski did not fulfill the statutory requirement of a written request for a lower limit of uninsured-underinsured motorist coverage, the plaintiff concluded that it owed Sliwka up to $200,000 in uninsured-underinsured motorist coverage. The plaintiff subsequently settled the claim with Sliwka for $160,404.

Thereafter, the plaintiff filed a two count complaint against the defendant, alleging both breach of contract and negligence. The plaintiff alleged that the defendant was liable for failing to obtain a written request from Zakrzewski for uninsured-underinsured motorist coverage in an amount less than the liability coverage. The plaintiff claimed damages of $105,530, the amount by which the plaintiffs payment to Sliwka exceeded the intended coverage under the policy.

The focal point of the evidence during trial was the Acord application form, which had been filled out by the defendant and signed by Zakrzewski on January 19,1990. The primary liability issue was whether that Acord application satisfied the written request requirement imposed by § 38a-366. The defendant conceded that it had a duty to obtain a sufficient written request to comply with the statute, but it argued that the Acord application satisfied that statutory requirement. The plaintiff argued that the Acord application did not satisfy the statute and that the defendant should have utilized a separate, supplemental application form which the plaintiff had prescribed. The jury returned a verdict in favor of the plaintiff on the breach of contract count, awarding $20 in damages, and in favor of the defendant on the negligence count. The verdict was accepted and recorded on September 21, 1993.

While the plaintiff raises several issues on appeal, we find the issue dealing with the statutory written request requirement to be dispositive of this appeal. Therefore, we will discuss this first.

The plaintiff argues that the trial court improperly refused to instruct the jury as to the writing requirement of § 38a-336. We agree.

At trial, the main liability issue was whether the Acord application satisfied the writing requirement imposed by § 38a-336. Both parties submitted proposed requests to charge on this issue. In these proposed requests to charge, both parties indicated that the interpretation of § 38a-366 was a question of law. The plaintiffs proposed request to charge provided in part: “As a matter of law,-I direct you that the statute requires that the written request rise to the level of a rejection or waiver. ... A writing that reflects only that the insured selects the lowest possible legal amount is insufficient because it does not specifically reject or waive the mandated higher amount. . . . It is for you to determine whether the Acord Application meets this statutory requirement.” The defendant’s proposed request to charge provided in part: “As a matter of law, I instruct you that so long as you find that [the] . . . Acord Application form . . . was filled out so as to request that Ms. Zakrzewski be issued an insurance policy providing her with only a $40,000 limit of underinsured motorist coverage while at the same time providing her with a $100,000 limit of liability insurance coverage, and so long as you find that that form was signed by the applicant . . . then . . . you must find that [the] . . . Acord Application form does fulfill the written request . . . requirement of § 38a-336 ff

The trial court did not give either party’s proposed jury instruction. Instead, the trial court furnished the jury with a copy of the statute and in its charge stated: “The law is that the amount of the uninsured or underinsured motorist coverage be equal to that of the liability coverage unless the insured elects a lesser amount of coverage in writing. Such a decision on the part of the insured must be purposeful and knowing.” The trial court went on to charge the jury that the plaintiff was claiming that the defendant did not use reasonable care to obtain a written request from the insured that was knowing and purposeful. Both parties took an exception to this charge.

The plaintiff argues that the trial court’s charge mis-characterized the plaintiffs claim as well as the law. The plaintiff also argues that the charge failed to provide the jury with any guidance for determining whether the Acord application met the statutory requirement of a written request for a lesser amount of uninsured-underinsured motorist coverage.

“In reviewing a challenge to jury instructions, we must examine the charge in its entirety. . . . Although the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury.” (Citations omitted; internal quotation marks omitted.) Tester v. Johnson, 23 Conn. App. 536, 538, 583 A.2d 133 (1990), cert. denied, 217 Conn. 806, 584 A.2d 1192 (1991). “The test to determine if a jury charge is proper is whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . .” (Citations omitted; internal quotation marks omitted.) Lemonious v. Burns, 27 Conn. App. 734, 740, 609 A.2d 254, cert. denied, 223 Conn. 915, 614 A.2d 828 (1992). A 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 on the jury in guiding them to a correct verdict in the case. State v. Kwaak, 21 Conn. App. 138, 160, 572 A.2d 1015, cert. denied, 215 Conn. 811, 576 A.2d 540 (1990). In determining whether a jury instruction was misleading, it is appropriate to consider how it bears on the issues in the case. State v. Shaw, 12 Conn. App. 294, 305, 530 A.2d 653 (1987). Instructions that force the jury to decide a material question of law are impermissible. See Bell v. Bihary, 168 Conn. 269, 273, 362 A.2d 963 (1975).

Statutory construction involves a question of law. Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995). To the extent that an issue involves a matter of statutory construction, it is a question of law, but to the extent that it involves an application of the statute to the actual circumstances of the case, it requires appropriate findings of fact at the trial level. See Aero Technology, Inc. v. Administrator, 25 Conn. App. 130, 134, 593 A.2d 154 (1991).

The interpretation of § 38a-366 was a question of law for the trial court. The meaning of the word “writing” as used in the statute is a matter of its construction and, therefore, a matter of law. The trial court did not make any findings regarding this question of law. Rather, it submitted the issue to the jury. In doing so, the trial court also failed to instruct the jury adequately regarding the factual findings that underlie the question of law. There were several questions here for the trier of fact to decide. These included whether there was a writing, whether the writing was signed, whether it was Zakrzewski’s signature, and whether Zakrzewski’s written request for a lesser amount of uninsured motorist coverage had been made purposefully and knowingly. See Travelers Indemnity Co. v. Malec, 215 Conn. 399, 403, 576 A.2d 485 (1990). The jury heard testimony related to these issues. The only instruction the trial court gave was that the jury was required to find that the insured’s request for a lesser amount of uninsured motorist coverage had been purposeful and knowing.

The charge was harmful in this case because it did not provide sufficient guidance to the jury in making necessary factual findings and it allowed the jury to consider a question of law. It would have been appropriate for the trial court to direct the jury, as a matter of law, that the Acord application did or did not satisfy the statutory requirement for a written request, depending on the jury’s determination of the underlying factual questions.

The defendant has agreed, in both its brief and oral argument, that the applicability of § 38a-336 to this case is a question of law, which should have been decided by the trial court rather than having been submitted, as a question of fact, to the jury. The defendant goes on to argue, however, that to the extent the issue was treated as one of fact for the jury to determine, the trial court’s instruction was adequate and not harmful to the plaintiff. We find this argument to be without merit.

Our full and independent review of the entire jury instruction discloses that the court’s charge with respect to § 38a-366 (a) (2) was inadequate to guide the jury on issues of fact and impermissibly forced the jury to decide a material question of law. While a determination of a question of law is subject to a plenary review on appeal, we cannot make the necessary factual findings that underlie the question of law. Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 88, 612 A.2d 1130 (1992); State v. Zollo, 36 Conn. App. 718, 726, 654 A.2d 359 (1995). As our disposition of this issue requires the case to be remanded for a new trial consistent with this opinion, we find it unnecessary to review the other claims raised by the plaintiff. We also find it unnecessary to review the issue raised by the defendant’s cross appeal.

On the plaintiff’s appeals, the judgment is reversed and the case is remanded for a new trial; the defendant’s cross appeal is dismissed.

In this opinion the other judges concurred.

       Uninsured motorist coverage provides “protection against operators of uninsured and underinsured motor vehicles, as well as insured motor vehicles whose insurers become insolvent.” American Motorists Ins. Co. v. Gould, 213 Conn. 625, 628, 569 A.2d 1105 (1990). Statutory provisions applying to uninsured motorist policies apply equally to underinsured motorist situations. Id.

       General Statutes (Rev. to 1989) § 38-175c (a) (2) provides in pertinent part: “Notwithstanding any provision of this section to the contrary, each automobile liability insurance policy issued or renewed on and after July 1, 1984, shall provide uninsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless the insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112.”

       This figure-is the total of $100,000 of uninsured-underinsured motorist coverage for each of two vehicles. This was reduced by $20,000, which Sliwka received from the automobile operator’s insurance carrier.

       The plaintiff claimed that the intended coverage under the policy was $60,000. The policy called for $40,000 of uninsured-underinsured motorist coverage for each of two vehicles, totaling $80,000. This was to be reduced by the $20,000 Sliwka received from the operator’s insurance carrier, leaving a total of $60,000. The difference between the plaintiff’s actual payment to Sliwka and the $60,000 came to $105,530.

       This supplemental form specifically dealt with uninsured-underinsured motorist coverage and options available to an insured.

       During the trial, the jury heard testimony from one of the plaintiffs employees that if Zakrzewski’s policy had provided $100,000 of uninsured motorist coverage per car, rather than the $40,000, the premium price would have been $20 higher than the premium price actually charged.

         “ ‘In order to preserve a claim related to the giving of or failure to give a jury instruction, a party is obligated either to submit a written request to charge covering the matter or to take an exception immediately after the charge is given. See Practice Book § 315.’ ” Barry v. Posi-Seal International, Inc., 36 Conn. App. 1, 8-9, 647 A.2d 1031, cert. denied, 231 Conn. 942, 653 A.2d 942 (1994).

       Specifically, the trial court charged: “The plaintiff asks you to find . . . that the defendant did not use reasonable care to obtain a written request from . . . Zakrzewski that was knowing, that is, that she had full understanding of the effect of her conduct, and purposeful, that she meant her conduct to result as it did.”

       One of the plaintiff’s claims is that the trial court improperly refused to submit separate verdict forms to the jury. The form utilized by the trial court contained separate questions for each of the two counts alleged in the plaintiff’s complaint, but only one question related to damages. The plaintiff argues that there should have been separate questions related to damages because the trial court had given different instructions on the measure of damages for each count. We note that the verdict form utilized by the trial court was almost identical to the plaintiff’s proposed special interrogatories. Because we remand for a new trial, the plaintiff is again free to submit proposed interrogatories that include separate verdict forms for each count.


author: Landau, J.

text:
    Eleanor Fuller v. First National Supermarkets, Inc.
    (13485)
    Dupont, C. J., and Landau and Hennessy, Js.
    Argued February 9
    decision released June 27, 1995

      Daniel E. Ryan III, for the appellant (defendant).

      Kevin R. Murphy, with whom, on the brief, was Alan J. Chandler for the appellee (plaintiff).
   Landau, J.

In this negligence action, the defendant appeals from the judgment of the trial court rendered on a jury verdict in favor of the plaintiff. The defendant claims (1) that the trial court improperly instructed the jury on the issue of notice of the existence of a defective condition and (2) that there was insufficient evidence to support the verdict.

The jury could have reasonably found the following facts. On January 14,1990, while shopping for groceries at the defendant’s supermarket, the plaintiff slipped on something sticky and fell, sustaining personal injuries. While on the floor, she observed a number of pricing stickers scattered around her and found one sticker on the heel of her shoe. The plaintiff instituted this negligence action against the defendant, claiming that the accumulation of pricing stickers had caused her fall and injuries.

I

The defendant first claims that the trial court improperly instructed the jury on the issue of notice of the existence of a defective condition. It asserts that the allegations set forth in the plaintiff’s complaint support a claim that the defendant was negligent only in not discovering and remedying a defective condition on its floor. To prevail on such a claim, the plaintiff was required to prove that the defendant had either actual or constructive notice of the defective condition. Consequently, the defendant argues, the trial court’s charge was improper for two reasons. First, the court failed to instruct the jury that the plaintiff had the burden of proving actual or constructive notice of the specific condition causing the injury. Also, the court improperly submitted to the jury the issue of whether the defendant created the defective condition, which theory of liability does not require the plaintiff to prove notice.

It is the plaintiff’s position that her entire case was tried on the premise, as alleged broadly in her complaint, that the defendant created the condition that resulted in her injuries and therefore had actual notice of the existence of the condition. Consequently, the plaintiff asserts, she did not need to prove notice and the trial court correctly instructed the jury.

For the plaintiff to recover for the breach of a duty owed to her as a business invitee, she had to allege and prove that the defendant had actual or constructive notice of the presence of the specific unsafe condition that caused her fall. LaFaive v. DiLoreto, 2 Conn. App. 58, 60, 476 A.2d 626 (1984); see Monahan v. Montgomery, 153 Conn. 386, 390, 216 A.2d 824 (1966). “Either type of notice must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it.” LaFaive v. DiLoreto, supra, 60. If the plaintiff, however, alleges an affirmative act of negligence, i.e., that the defendant’s conduct created the unsafe condition, proof of notice is not necessary. Holody v. First National Supermarkets, Inc., 18 Conn. App. 553, 556, 559 A.2d 723 (1989).

The defendant’s claim hinges on the premise that the allegations in the plaintiff’s complaint support a claim that the defendant was negligent for not discovering and remedying the accumulation of pricing stickers on its floor, rather than for creating the defective condition. In fact, the defendant concedes in its appellate brief that if the issue at trial was whether the defendant caused the defective condition, “the plaintiff would not have needed to prove notice.”

“ ‘It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of [her] complaint.’ (Internal quotation marks omitted.) Lundberg v. Kovacs, 172 Conn. 229, 232, 374 A.2d 201 (1977). However, ‘[t]he modem trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically.’ (Internal quotation marks omitted.) Beaudoin v. Town Oil Co., 207 Conn. 575, 587-88, 542 A.2d 1124 (1988); Fuessenich v. DiNardo, 195 Conn. 144, 150-51, 487 A.2d 514 (1985). As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery. Tedesco v. Stamford, 215 Conn. 450, 459, 576 A.2d 1273 (1990), on remand, 24 Conn. App. 377, 588 A.2d 656 (1991), rev’d, 222 Conn. 233, 610 A.2d 574 (1992); Giulletti v. Connecticut Ins. Placement Facility, 205 Conn. 424, 434, 534 A.2d 213 (1987); see also Web Press Services Corf. v. New London Motors, Inc., 203 Conn. 342, 359-60, 525 A.2d 57 (1987); see also Practice Book §§ 108 and 109.

“Furthermore, ‘a judgment ordinarily cures pleading defects . . . .’ Tedesco v. Stamford, supra, 215 Conn. 458. 'The absence of a requisite allegation in a complaint that would have justified the granting of a motion to strike, however, is not a sufficient basis for vacating a judgment unless the pleading defect has resulted in prejudice. [I]f parties will insist on going to trial on issues framed in a slovenly manner, they must abide the verdict; judgment will not be arrested for faults in statement when facts sufficient to support the judgment have been substantially put in issue and found. . . . Want of precision in alleging the cause of an injury for which an action is brought, is waived by contesting the case upon its merits without questioning such defect.’ (Citation omitted; internal quotation marks omitted.) Id., 457 Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 496-97, 646 A.2d 1289 (1994).

We are satisfied that the complaint, read broadly and realistically, provided the defendant with sufficient notice that the plaintiff was claiming that the defendant caused pricing stickers to accumulate on the floor of the supermarket. Moreover, the evidence presented at trial by the plaintiff supported such a claim. For example, the defendant’s store manager testified that store employees regularly apply pricing stickers to merchandise and that customers do not have access to pricing stickers. He also testified that it was a safe assumption that, if there were pricing stickers on the floor, they would have come from the pricing guns used by store employees. Also, no evidence was presented that some third party caused the stickers to be on the floor. For these reasons, we conclude that the plaintiff’s case was pleaded and tried on the premise that the defendant created the condition that resulted in her injuries.

“In reviewing a challenge to jury instructions, we must examine the charge in its entirety.” Felsted v. Kimberly Auto Services, Inc., 25 Conn. App. 665, 668, 596 A.2d 14, cert. denied, 220 Conn. 922, 597 A.2d 342 (1991). “While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury.” (Internal quotation marks omitted.) Id., quoting Preston v. Keith, 217 Conn. 12, 17, 584 A.2d 439 (1991).

Our review of the charge as a whole in this case reveals that the court’s instructions were clear, accurate, comprehensive and furnished sufficient guidance to the jury. “It was unnecessary for the court to charge as to the necessity of notice to the defendant of the dangerous condition of the premises since upon the evidence that condition was created by its own agent.” Crowell v. Middletown Saving Bank, 122 Conn. 362, 367, 189 A. 172 (1937). Consequently, we conclude that the defendant cannot prevail on this claim.

II

The defendant also claims that, even if the issue in this case was whether the defendant negligently created the unsafe condition, there was insufficient evidence to support the verdict. The trial court denied the defendant’s motion to set aside the verdict in which the defendant claimed, inter alia, that there was insufficient evidence for the jury to conclude that the pricing stickers were dropped on the floor by the defendant’s employees.

“In examining the decision of the trial court on the defendant’s motion, the evidence is to be considered in the light most favorable to the plaintiff. . . . The trial court’s refusal to set aside a verdict is entitled to great weight and its decision will not be disturbed on appeal unless the court clearly abused its discretion. . . . The test employed in analyzing a sufficiency of the evidence claim is whether or not, on the basis of the evidence introduced, a reasonable jury, properly motivated, could bring in a verdict against the defendants. ...” (Citations omitted; internal quotation marks omitted.) Ryan v. Mill River Country Club, Inc., 8 Conn. App. 1, 4, 510 A.2d 462 (1986).

As in Holody v. First National Supermarkets, Inc., supra, 18 Conn. App. 553, the central issue in this case was “whether the plaintiff produced evidence from which the jury could infer and reasonably believe, in the exercise of common sense, that it was more probable than not that the defendant, without any intervening action by any third party”; id.; dropped the pricing stickers on the floor and thereby caused the plaintiff to fall. As noted, the manager of the defendant’s store testified that only store employees have access to the pricing stickers and that it is reasonable to conclude that any pricing stickers on the store floor would have come from employees’ pricing guns. The plaintiff testified that “something sticky” caught her shoe and caused her to fall. When she fell, the store manager and a cashier came to her assistance. In response to the manager’s question as to what had caused the plaintiff’s fall, the cashier responded that all that she could see on the floor were pricing stickers. The plaintiff also testified that, at that time, she noticed a pricing sticker on the heel of her shoe. After reviewing the record before us and considering the evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have found as it did.

The judgment is affirmed.

In this opinion the other judges concurred.

       Paragraph nine of the plaintiffs complaint states: “The plaintiffs injuries and damages were caused by the carelessness and negligence of the defendant, its agents, servants and/or employees in one or more of the following ways in that they:
      “a. failed to maintain a safe and hazard-free floor for the use of patrons;
      “b. failed to properly remove price stickers from said floor, thus creating a hazardous situation;
      “c. permitted price stickers to accumulate on the floor;
      “d. failed to warn patrons, including the plaintiff, of the aforedescribed hazardous conditions;
      “e. failed to close off the aforedescribed hazardous area from use by the public, including the plaintiff;
      “g. permitted patrons to enter upon said floor which they knew or should have known was unsafe;
      “h. failed to properly inspect the aforedescribed floor.”

       Practice Book § 108 provides in pertinent part: “Bach pleading shall contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved . . . . If any such pleading does not fully disclose the ground of claim . . . the court may order a fuller and more particular statement; and, if in the opinion of the court the pleadings do not sufficiently define the issues in dispute, it may direct the parties to prepare other issues, and such issues shall, if the parties differ, be settled by the court.”
      Practice Book § 109 provides in pertinent part: “Acts . . . may be stated according to their legal effect, but in so doing the pleading should be such as fairly to apprise the adverse party of the state of facts which it is intended to prove. ...”


author: Schaller, J.

text:
    State of Connecticut v. Mark Torwich
    (13522)
    Foti, Landau and Schaller, Js.
    Argued March 20
    decision released June 27, 1995

      Mary Miller Haselkamp, assistant public defender, with whom, on the brief, was Chris Lacadie, legal intern, for the appellant (defendant).

      LeonF. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Mary M. Galvin, state’s attorney, and Francis J. McQuade, supervisory assistant state’s attorney, for the appellee (state).
   Schaller, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault of a peace officer in violation of General Statutes § 53a-167c (a) (l), breach of the peace in violation of General Statutes § 53a-181 (a) (l), and threatening in violation of General Statutes § 53a-62 (a) (1) and (2). The defendant claims that (1) the trial court improperly instructed the jury that it could consider constitutionally protected speech in determining whether he was guilty of the charge of breach of the peace, (2) the state presented insufficient evidence of “intent to terrorize another” to support the defendant’s conviction for threatening, and (3) the state presented insufficient evidence that the officer was “acting in the performance of his duties” to support the defendant’s conviction for assault of a peace officer. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At about midnight on August 8, 1993, Officer Gerald Narowski of the Derby police department saw the defendant drive a van through a red light at a high rate of speed at an intersection on Route 34. Narowski turned on the siren and overhead lights of his police car and pursued the van. The defendant turned into a gas station and parked in front of the pumps. Narowski parked his police car behind the van. While the officer was calling police headquarters, the defendant got out of the van and ran toward the police car yelling, demanding to be told why he had been stopped.

While in his police car, Narowski asked the defendant for his driver’s license, the van’s registration, and the van’s insurance card. The defendant gave the officer his driver’s license and informed the officer that the van did not belong to him and that the van’s registration had expired. The officer told the defendant to return to the van. The defendant returned to the van. The defendant, however, approached the police car several times asking the officer not to give him a ticket. Every time the defendant returned to the police car, the officer told him to go back to the van and to stay there. During one of these occasions, as the defendant was returning to the van, the officer heard him say “motherfucker,” and “what a prick.”

Officer Paul Satkowski of the Derby police department arrived to give Narowski assistance. The defendant asked Satkowski if he could do anything for him. Satkowski answered, “No.” Satkowski then asked Narowski if he needed any assistance. Narowski told Satkowski that he did not anticipate any problems and that he did not require any assistance and Satkowski left the area to respond to another call.

Narowski issued the defendant a ticket for driving through a red light and for operating an unregistered motor vehicle. Narowski called for a tow truck for the unregistered van and, when the tow truck arrived, the officer instructed the defendant that he had to get out of the van before it could be towed. The defendant became upset and started to swear at the officer. The defendant’s voice attracted the attention of the customers at the gas station. When Narowski asked the defendant to sign the ticket, he refused and continued yelling. At that point, the officer arrested the defendant for breach of the peace, handcuffed him and placed him in the backseat of the police car.

While Narowski was questioning the passenger in the van, he heard a thumping noise coming from the police car and saw the defendant kicking the window of the rear door causing the window to bend out. Narowski removed the defendant from the car to search him for weapons. As Narowski was searching him, the defendant told the officer, “I’m going to get you for this” and “I’m going to kick your ass.” At this point, Narowski informed the defendant that he was being charged with criminal mischief for damaging the police car. On hearing that, the defendant responded: “Oh, yeah? Well, how about assault too?” The defendant lunged at Narowski, hitting the officer in the left eye with his head, causing the eye to swell. As the two men were struggling, the defendant fell on top of the officer, injuring his arm. While he was struggling with the defendant, Narowski used the radio in his back pocket to call for assistance. Narowski and the defendant got on their feet. Narowski, thinking that the defendant was about to charge, sprayed him with pepper mace. After the defendant was sprayed, he continued to threaten Narowski, telling him that he was going to kill him and that he was going to kick his ass. Narowski put the defendant back in the police car. Shortly afterward, three police officers arrived to assist Narowski. They saw that Narowski’s clothes were disordered, his face red, and he was breathing heavily. During this time, the defendant continued to yell and kick the window of the police car.

As the defendant was being taken to the police station, he threatened Narowski several times, stating that he would find out where the officer lived and kill him. At the station, the defendant told Narowski that he would find out where he lived, burn down his house and kill him.

After leaving the station, Narowski went to the hospital to get treatment for the injuries to his arm and eye. He was still receiving treatment for his arm at the time of the trial.

I

The defendant claims that the trial court’s jury instruction on the breach of the peace charge was improper because the jury was instructed that it could consider constitutionally protected speech as a basis for the conviction. We do not agree. The defendant concedes that this claim was not preserved at trial. Therefore, the defendant may prevail on this claim only if it satisfies the requirements of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

Under Golding, a defendant can prevail on an unpreserved claim of constitutional error “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id., 239-40. “The first two conditions of Golding are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself. Wilson v. Cohen, 222 Conn. 591, 603, 610 A.2d 1177 (1992); State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852 (1994); see also State v. Thurman, 10 Conn. App. 302, 306, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).” State v. Walker, 33 Conn. App. 763, 769, 638 A.2d 1084, cert. denied, 229 Conn. 913, 642 A.2d 1209 (1994).

We will review the defendant’s claim as the record is adequate and the alleged violation is of constitutional magnitude because it involves the right to free speech. U.S. Const., amend. I; Conn. Const., art. I, §§ 4, 5,14. We conclude, however, that the defendant has failed to show that the alleged violation clearly exists and clearly deprived him of a fair trial.

The defendant claims that although he was granted his requested “fighting words” instruction as part of the charge, the jury was permitted to consider protected speech in finding him guilty on the breach of the peace charge. The defendant bases his claim on the portion of the trial court’s charge that instructed, “[hjowever, on the breach of peace count, you are not limited in your deliberations as to whether that crime was committed by simply language. You may utilize all of the conduct as well as the language based on what you believe happened in this case to determine whether or not the charge of breach of peace has been committed.”

In considering the defendant’s claim, we first note that “[t]he charge is to be read as a whole; sections are not to be judged in isolation from the overall charge. State v. Reed, 174 Conn. 287, 305, 386 A.2d 243 (1978). The charge is not to be ‘critically dissected in a microscopic search for possible error.’ State v. Foreshow, 214 Conn. 540, 548, 572 A.2d 1006 (1990). The test to be applied to any part of a charge is whether the charge as a whole presents the case to the jury in a manner to prevent injustice. State v. Maturo, 188 Conn. 591, 599, 452 A.2d 642 (1982). We review the whole charge to determine whether it sufficiently guided the jury to a proper verdict. State v. Shaw, 24 Conn. App. 493, 499, 589 A.2d 880 (1991).” State v. Hester, 28 Conn. App. 469, 472, 612 A.2d 120 (1992); State v. Jenkins, 29 Conn. App. 262, 272-73, 614 A.2d 1249, cert. denied, 224 Conn. 916, 617 A.2d 171 (1992).

We find that the trial court carefully instructed the jury as to the significance of “fighting words” in its consideration of the breach of the peace charge. The court stressed that “[i]f the words that Mr. Torwich which you find to be proven allegedly [spoke] in this case did not cross that point, then his words would be protected from criminal prosecution and you couldn’t find him guilty based on those words of the breach of peace statute.” The court presented a proper definition of “fighting words” to the jury, and then stressed again, “If you find based on what you believe the defendant did or did not say, that those words constituted fighting words, then you may utilize that with reference to this particular charge. If you feel that they did not reach the fighting word, you may not use the language on the breach of peace count.” Accordingly, if the jury found that the words used by the defendant rose to the level of “fighting words” as defined in the court’s instruction, the jury could consider those words in determining the defendant’s guilt under the breach of peace statute.

“This conclusion is consistent with the 'fighting words’ limitation that must be applied when the conduct sought to be proscribed consists purely of speech. Chaplinsky v. New Hampshire, 315 U.S. 568, 573, 62 S. Ct. 766, 86 L. Ed. 2d 1031 (1942); State v. Anonymous (1978-4), 34 Conn. Sup. 689, 695, 389 A.2d 1270 (1978). The Chaplinsky doctrine permits the state to prohibit speech that has a direct tendency to inflict injury or to cause acts of violence or a breach of the peace by the persons to whom it is directed. See Statewide Grievance Committee v. Presnick, 18 Conn. App. 316, 559 A.2d 220 (1989).” State v. Indrisano, 228 Conn. 795, 812, 640 A.2d 986 (1994). Because the conduct that the breach of the peace statute punishes may include speech, an instruction that complies with the Chaplinsky doctrine is required. The instruction given in this case complies with that doctrine. See State v. Lavorgna, 37 Conn. Sup. 767, 775, 437 A.2d 131 (1981); State v. Anonymous (1978-4), 34 Conn. Sup. 689, 695, 389 A.2d 1270 (1978). We conclude that the trial court properly instructed the jury on the breach of the peace charge, giving the required “fighting words” instruction.

II

The defendant next claims that the state offered insufficient evidence of an “intent to terrorize” to support his conviction for threatening under General Statutes § 53a-62 (a) (2). We do not agree.

Section 53a-62 (a) (2) provides in relevant part: “A person is guilty of threatening when . . . he threatens to commit any crime of violence with the intent to terrorize another . . . .” “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. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993); see also State v. Traficonda, 223 Conn. 273, 278, 612 A.2d 45 (1992); State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991).

It is well established that the question of intent is purely a question of fact. State v. Adams, 14 Conn. App. 119, 124, 539 A.2d 1022 (1988). “The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proven by circumstantial evidence . . . .” (Citation omitted.) State v. Rodriguez, 180 Conn. 382, 404, 429 A.2d 919 (1980); see State v. Williams, 202 Conn. 349, 356, 521 A.2d 150 (1987); State v. Crump, 201 Conn. 489, 495, 518 A.2d 378 (1986); State v. Ghere, 201 Conn. 289, 296, 513 A.2d 1226 (1986). “Intent may be and usually is inferred from conduct.... [Wjhether such an inference should be drawn is properly a question for the jury to decide.” (Citations omitted; internal quotation marks omitted.) State v. Morrill, 193 Conn. 602, 609, 478 A.2d 994 (1984), quoting State v. Sober, 166 Conn. 81, 92-93, 347 A.2d 61 (1974).

At the gas station, the defendant told Narowski, “I’m going to get you for this,” and “I’m going to kick your ass.” During the ride to the police station, the defendant told Narowski several times that he would find out where Narowski lived and he would kill him. At the police station, the defendant threatened Narowski that he would burn his house down, and kill him. Moreover, the defendant physically attacked Narowski at the Petrol Plus gas station. The jury reasonably could have inferred from the defendant’s statements and his conduct that he was threatening to commit crimes of violence and that he intended to terrorize Narowski. Construing the evidence in the light most favorable to the state and considering the inferences that could be drawn from this evidence, the jury could have found beyond a reasonable doubt that the defendant’s conduct and statements were intended to terrorize Narowski. “We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and gauge their credibility.” State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).

Ill

The defendant next claims that the state presented insufficient evidence to show that Narowski was “acting in the performance of his duties” to support the defendant’s conviction for assault of a peace officer. We do not agree.

General Statutes § 53a-167c (a) provides in pertinent part: “A person is guilty of assault of a peace officer . . . when, with intent to prevent a reasonably identifiable peace officer . . . from performing his duty, and while such peace officer ... is acting in the performance of his duties, (1) he causes physical injury to such peace officer . . . .” We apply the same standard set out in part II when reviewing the sufficiency of the evidence claim. See State v. Greenfield, supra, 228 Conn. 76.

“If [the officer] is acting under a good faith belief that he is carrying out [his] duty, and if his actions are reasonably designed to that end, he is acting in the performance of his duties.” (Internal quotation marks omitted.) State v. Biller, 5 Conn. App. 616, 620, 501 A.2d 1218 (1985), cert. denied, 199 Conn. 803, 506 A.2d 146, cert. denied, 478 U.S. 1005, 106 S. Ct. 3296, 92 L. Ed. 2d 711 (1986). “The phrase ‘in the performance of his official duties’ means that the police officer ‘is simply acting within the scope of what [he] is employed to do. The test is whether the [police officer] is acting within that compass or is engaging in a personal frolic of his own.’ ” State v. Privitera, 1 Conn. App. 709, 722, 476 A.2d 605 (1984). The question of whether a police officer was acting in good faith in the performance of his duties is a factual question “for the jury to determine on the basis of all the circumstances of the case and under appropriate instructions from the court.” Id.

The defendant asserts that Narowski was engaging in a personal frolic from the point when he placed the defendant under arrest for breach of the peace. He claims that Narowski was provoked to violence by the remarks made by the defendant. The defendant further argues that Narowski initiated the physical confrontation by taking the defendant out of the car when the defendant began kicking the window, instead of controlling the situation by putting the seat belt on the defendant. Narowski explained that he took the defendant out of the car so he could search him for weapons after observing the defendant kicking the window of the car. Moreover, after Narowski informed the defendant that he would be charged with criminal mischief, the defendant stated, “Well, how about assault too?” before he butted the officer in the eye with his head. Construing the evidence in the light most favorable to the state and considering the inferences that could be drawn from this evidence, the jury could have found beyond a reasonable doubt that Narowski was acting under a good faith belief that he was performing his duty in a reasonable manner when he took the defendant out of the car to search for weapons and that the defendant was guilty of assaulting him. “[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Grant, 219 Conn. 596, 604, 594 A.2d 459 (1991).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-167c provides in pertinent part: “(a) A person is guilty of assault of a peace officer . . . when, with intent to prevent a reasonably identifiable peace officer . . . from performing his duty, and while such peace officer ... is acting in the performance of his duties, (1) he causes physical injury to such peace officer . . . .”

       Genera] Statutes § 53a-181 provides in pertinent part: “(a) A person is guilty of breach of the peace when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place >>

       General Statutes § 53a-62 provides in pertinent part: “(a) A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury, or (2) he threatens to commit any crime of violence with the intent to terrorize another . . . .”

       Because the defendant apparently does not press on appeal his claim raised at trial that the trial court improperly instructed the jury that it could consider the defendant’s conduct, both before and after his arrest, in determining whether he was guilty of the charge of breach of the peace, that claim is considered abandoned. State v. Ramsundar, 204 Conn. 4, 16, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987).


text:
    Dan A. Willocks v. Arthur O. Klein
    (13298)
    Foti, Lavery and Landau, Js.
    Argued April 20
    decision released June 27, 1995

      Arthur O. Klein, pro se, the appellant (defendant), with whom, on the brief, was Sanford C. Nadler.

      James C. Wing, Jr., with whom, on the brief, was Kenneth R. Bunk, for the appellee (plaintiff).
   Foti, J.

The defendant appeals from a postjudgment order of the trial court setting a specific closing date on property owned by the defendant that was the subject of an underlying stipulated judgment. The defendant filed his appeal from the “judgment ordering the transfer of real property from the defendant to the plaintiff.” As a preliminary matter, we must determine whether the defendant is aggrieved; General Statutes § 52-263; Gaudio v. Gaudio, 23 Conn. 287, 303-304, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990); and whether his appeal is properly filed from a final judgment. See State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983).

The underlying judgment in this matter is based on an agreement of the parties, executed on November 24, 1992, that called for the transfer of certain property from the defendant to the plaintiff within ninety days. On October 25, 1993, the plaintiffs motion for a judgment in accordance with the stipulation was heard by the trial court. The defendant argued, unsuccessfully, that the stipulation provided for a transfer of the subject property within ninety days of November 24,1992, and that, since that time had passed, the agreement was ineffective. The court rendered judgment, over the defendant’s objection, based on the agreement, and set a new ninety day period for transfer of the property. The defendant neither moved to correct the judgment nor filed an appeal. The defendant did not transfer the property as required by the judgment, and, on December 2,1993, the plaintiff filed a motion for contempt. A hearing was held on January 3, 1994, at which time the court denied the plaintiff’s motion for contempt, but ordered a ninety day extension of the date for closing. The new date was set for April 5, 1994.

On appeal, the defendant argues, however, that he is aggrieved by the postjudgment order setting the time within which he must comply with the order of transfer in the underlying judgment. He also argues that the original ninety day period of the agreement was the only time within which he agreed to convey the property and he should not now be forced to do so.

“A threshold inquiry of this court upon every appeal presented to it is the question of appellate jurisdiction . . . [and a] requisite element of appealability is that the party claiming error in the decision of the trial court be aggrieved . . . .’’(Internal quotation marks omitted.) Scarsdale National Bank & Trust Co. v. Schmitz, 24 Conn. App. 230, 232, 587 A.2d 164 (1991). “The test for demonstrating aggrievement is well settled: First, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision. . . .” (Citations omitted; internal quotation marks omitted.) In re Robin M., 36 Conn. App. 146, 148-49, 649 A.2d 257 (1994).

The defendant claims to be appealing from the court’s order specifically setting the date for the closing as on or before April 5,1994. The defendant cannot demonstrate that he is aggrieved by this order, since it extends, rather than limits, the period within which he may comply with the judgment.

The defendant agrees that although the denial of a motion for contempt is a final judgment for purposes of appeal; Potter v. Board of Selectmen, 174 Conn. 195, 196, 384 A.2d 369 (1978); he is not aggrieved by the court’s denial of the motion for contempt because he did not bring the motion but rather was the party against whom it was brought. The defendant has failed to establish that his interest has been specially and injuriously affected by the decision from which he is appealing.

The defendant’s argument that the original ninety day period set out in the November 24, 1992 stipulation was the only period within which he agreed to convey the property is the same argument that he raised in the trial court when he objected to the entry of the original judgment. As an attack on that original judgment, this claim should have been raised as an appeal from that judgment. Since it was not, it may not be raised now. We conclude that the order to convey, as part of the underlying judgment from which no appeal was taken, may not be raised as part of this appeal.

The right of appeal is purely statutory, originating in § 52-263. Not only must the appellant be aggrieved by the decision of the court, but the appeal must be taken from the final judgment of the court. The defendant agrees that the judgment rendered on October 25, 1993, was a final judgment from which no appeal was taken. The defendant is appealing from the postjudgment order that extended the date of closing. While some rulings on postjudgment motions may be appealed in their own right, the defendant can point to no authority allowing an appeal from this postjudgment order.

We conclude that the defendant is neither aggrieved by the decision of the court, nor does he appeal from a final judgment.

The appeal is dismissed.

In this opinion the other judges concurred.

       The defendant is an attorney acting pro se.

       General Statutes § 52-263 provides: “Upon the trial of all matters of fact in any cause or action in the superior court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court or of such judge, or from the decision of the court granting a motion to set aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in sections 8-8 and 8-9.”

       The parties were notified prior to oral argument to be prepared to address these issues. The defendant declined our offer to continue the matter and indicated that he was prepared to argue.

       If a party claims a lack of conformity between the agreement and the judgment rendered by the court, that party may properly appeal from the denial of the court of that party’s motion to correct the judgment. Bank of Boston Connecticut v. DeGroff 31 Conn. App. 253, 256, 624 A.2d 904 (1993).

       The trial court noted: “All right, judgment is still in effect. The closing is continued and will take place within ninety days ... I kind of like to have a specific date ... I know you object generally, Mr. Klein, and I don’t ask you to agree to that, but just in terms of the date being a fixed date of April 5, 1994, rather than ninety days from today. Does anybody have a problem with that?” Neither party objected to that date.

       Since aggrievement implicates appellate jurisdiction, the issue of the appellant’s lack of aggrievement must be reviewed even if such a claim was not raised at the trial level. Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 307, 592 A.2d 953 (1991).

       See footnote 2.


author: O’Connell, J.

text:
    Lynn F. Pickles v. Louis S. Goldberg, Commissioner of Motor Vehicles
    (13656)
    O’Connell, Lavery and Schaller, Js.
    Argued February 10
    decision released June 27, 1995

      Priscilla J. Green, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (defendant).

      David R. Babbitz, with whom, on the brief, was Daniel A. Lyons, Jr., for the appellee (plaintiff).
   O’Connell, J.

The defendant commissioner of motor vehicles (commissioner) appeals from the trial court’s judgment reversing his decision to suspend the plaintiff’s motor vehicle operator’s license pursuant to General Statutes § 14-111 (c). The defendant claims that the trial court improperly (1) found that the record did not support the conclusion that the plaintiff was operating her motor vehicle at an unreasonable speed, (2) concluded that the record did not support the conclusion that the plaintiff failed to keep her motor vehicle under proper control, and (3) found that the plaintiff was exempt from the requirements of the exit ramp traffic control signs. We reverse the judgment of the trial court.

On November 18, 1988, the plaintiff, an employee of the state department of transportation (DOT), was operating a nine ton capacity DOT dump truck traveling east on Interstate Route 1-95 in West Haven. The truck was filled with loam, which the plaintiff was transporting to a landfill. Because she was unfamiliar with the area, the plaintiff followed another DOT truck to the landfill on her first trip. That truck exited 1-95 at exit 43, and the plaintiff followed. The ramp was clearly posted with two “No Trucks” signs. Despite the clear prohibition, the plaintiff used exit 43 on her second trip to the landfill.

On the second trip, as she turned onto the ramp, the plaintiff was unable to slow her vehicle enough to keep it under control. She went through a red light at the bottom of the ramp and was attempting to turn right onto Campbell Avenue when her truck overturned onto a car that was stopped at the traffic light, killing the driver.

Pursuant to General Statutes § 14-111, a hearing was held on May 23 and July 18, 1991, at which the plaintiff was present and represented by counsel. The commissioner, acting through his hearing officer rendered his decision on August 17, 1991, concluding that the plaintiff was responsible for the fatality, and ordering that her operator’s license be suspended for eighteen months. The plaintiff appealed to the Superior Court, which sustained the appeal and reversed the commissioner’s decision. The commissioner brings this appeal.

“Judicial review of the commissioner’s actions is governed by the Uniform Administrative Procedure Act . . . and the scope of that review is very restricted.” Lawrence v. Kozlowski, 171 Conn. 705, 707, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977). “Neither this court nor the trial court may retry the case or substitute its own judgment for that of the defendant.” Buckley v. Muzio, 200 Conn. 1, 3, 509 A.2d 489 (1986). “The ‘substantial evidence’ rule governs judicial review of administrative factfinding under [General Statutes § 4-183 (j)]. . . . Such a standard of review allows less room for judicial scrutiny than does the ‘weight of the evidence’ rule or the ‘clearly erroneous’ rule. ... In determining whether an administrative finding is supported by ‘substantial evidence,’ a court must defer to the [commissioner’s] assessment of the credibility of the witnesses and to the [commissioner’s] right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part.” (Citations omitted.) Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217, 554 A.2d 292 (1989). “[I]f there is evidence . . . which reasonably supports the decision of the commissioner, [the court] cannot disturb the conclusion reached by him.” DiBenedetto v. Commissioner of Motor Vehicles, 168 Conn. 587, 589, 362 A.2d 840 (1975). The primary concern on appeal is that the hearing was conducted in a fundamentally fair manner. Briggs v. State Employees Retirement Commission, supra, 218.

The commissioner first contends that the trial court improperly found that the record did not sustain the commissioner’s conclusion that the plaintiff was operating her vehicle at an unreasonable speed. We conclude that there was ample evidence to support the commissioner’s conclusion.

The plaintiff testified that she thought she exited 1-95 at about twenty-five miles per hour, the posted ramp speed. Her own expert testified that if the plaintiff had been traveling at twenty-five or thirty miles per hour at the top of the ramp, he believed that she would have been able to stop at the bottom. It is logical to extrapolate that, because she could not stop at the bottom of the ramp, the plaintiff was traveling faster than the posted speed limit, which is presumptively unreasonable. The credibility of witnesses and the weight to be given to their testimony are matters within the province of the commissioner as finder of fact. Briggs v. State Employees Retirement Commission, supra, 210 Conn. 217.

Sergeant Albert Lindblom of the West Haven police department testified that the plaintiff’s truck was traveling at an excessive rate of speed to be able to negotiate the turn at the bottom of exit 43. Although there was some seemingly conflicting testimony from Lindblom about what speed would be reasonable under the circumstances, it is up to the trier of fact to weigh conflicting evidence, and there is evidence that reasonably supports the commissioner’s conclusion of unreasonable speed.

The commissioner next argues that the trial court improperly determined that the record did not sustain the conclusion that the plaintiff failed to keep her vehicle under control. We conclude that the hearing officer reasonably found that the plaintiff failed to maintain control of her vehicle. The trial court recited in its memorandum of decision that the plaintiff did not stop at the bottom of the ramp “due to the failure of the braking system of the truck.” The court went on to say that “[a]n examination of the vehicle by the West Haven police department found the vehicle to be in good mechanical condition ‘other than the brakes not holding sufficiently.’ ”

There was neither allegation nor evidence that the brakes failed between the plaintiff’s first uneventful use of exit 43 and the second. Rather, the testimony indicated that the braking system was generally inadequate for the weight and speed of the truck. As the plaintiff’s expert testified, the “brake system was too small to be able to bring the truck to a proper stop for the conditions that existed on ramp 43.”

The hearing officer found that the plaintiff was unable to “sufficiently slow her vehicle to keep it under control [and] was unable to stop the dump truck by braking and downshifting . . . .’’He found further that “[a]n examination of the dump truck by the West Haven police revealed no mechanical defects in the braking system.” It was reasonable for the hearing officer to infer from the evidence that the first time the plaintiff used exit 43, she was not traveling too fast for the braking system to control the truck, and the second time she was traveling too fast for the braking system and, consequently, lost control of the truck.

Finally, the commissioner argues that the trial court improperly found that the plaintiff was exempt from the requirements of the exit ramp traffic control signs. The hearing officer found that the plaintiff used exit 43, despite two “No Trucks” signs, and that that contributed to her responsibility for the fatality.

General Statutes § 14-290 (b) exempts maintenance vehicle operators from specified statutes “so far as such exemption is necessary, while such operators and equipment are engaged in or are preparing to engage in or are departing from highway maintenance operations on any highway . . . .” The plaintiff was not required to use exit 43 to reach the landfill, nor did her supervisor order her to use that ramp. In fact, according to police testimony, her use of the ramp displayed poor judgment.

The hearing officer could reasonably have found that it was not necessary for the plaintiff to use exit 43, that she could have used a nonrestricted exit ramp, and, therefore, that she was not exempt from the traffic control signs. Even if the plaintiff were exempt from the truck prohibition, that would not save her. Her use of the restricted ramp was just one of the findings that led the hearing officer to conclude that the plaintiff was responsible for the fatality and thus to suspend the plaintiff’s operator’s license.

There is evidence that reasonably supports the commissioner’s decision. In light of this evidence, the commissioner did not act unreasonably, arbitrarily, illegally or in abuse of his discretion.

The judgment is reversed and the case is remanded with direction to render judgment denying the plaintiff’s appeal.

In this opinion the other judges concurred.

       General Statutes § 14-111 (c) provides in relevant part: “suspension of license after fatal accident. The commissioner shall not suspend the license of any operator concerned in any motor vehicle accident resulting in the death of any person solely because such death has occurred, unless the facts as ascertained by the commissioner, after a hearing, indicate responsibility on the part of such operator for such accident, and, if, after such hearing, the commissioner finds that such operator has caused or contributed to such death through the violation of any provision of this chapter or of chapter 248 or through negligence or carelessness, such suspension shall be for not less than one year . . . .”

       The plaintiffs conviction of negligent homicide with a motor vehicle in violation of General Statutes § 14-222a was affirmed by this court in State v. Pickles, 28 Conn. App. 283, 610 A.2d 716 (1992).

       The hearing officer concluded as follows: “That Lynn F. Pickles caused or contributed and is responsible for the death of Frank A. Giaimo in that she failed to keep her vehicle under proper control, in that she faded to obey the traffic control signage on 1-95 exit ramp and in that she was operating at an unreasonable speed.”

       Our Uniform Administrative Procedure Act is codified in General Statutes §§ 4-166 through 4-189. The standards for judicial review under the UAPA are set out in § 4-183 ©, which provides in pertinent part: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. . . .”

       General Statutes § 14-218a (a) provides in relevant part that “the State Traffic Commission may determine speed limits which are reasonable and safe on any state highway . . . built or maintained by the state . . . Any speed in excess of such limits . . . shall be prima facie evidence that such speed is not reasonable . . .

       By measuring skid marks left by the truck at the bottom of the ramp, the police were able to calculate that the truck was traveling at about eleven miles per hour at the time of the skid.

       During cross-examination of Lindblom, the following exchange took place:
      “[Defense Counsel]: Yes, Sergeant Lindblom, you stated that due to the truck’s speed and load that the truck made a clockwise rotation at the intersection and flipped onto its side; however, you also testified this morning that at the time of the skid you were able to mark that the truck was traveling approximately eleven miles per hour. Would you consider that an excessive rate of speed considering someone is suppose to be making a left turn at the time into the intersection?
      “Sergeant Lindblom: Yes, I would. It resulted in a truck flipping. It was too fast for the vehicle.
      “[Defense Counsel]: You didn’t listen carefully to the question. Assuming the truck was going to make a left turn onto Campbell Avenue, but swerved to the right to attempt to avoid hitting the other vehicle or to avoid the corner — my question is on the left turn on Campbell Avenue of that exit; would that have been an excessive speed under normal circumstances for a truck of that load and size?
      “Sergeant Lindblom: I couldn’t really say. It’s possible that that is a reasonable speed.”


text:
    Kerin Agency, Inc. v. West Haven Painting and Decorating, Inc., et al.
    (13417)
    Dupont, C. J., and Landau and Schaller, Js.
    Submitted on briefs April 26
    decision released July 4, 1995

      Alexander J. Trembicki filed a brief for the appellant (defendant Thomas Laugeni).

      John C. Fitzgerald, Jr., filed a brief for the appellee (plaintiff).
   Landau, J.

The plaintiff, an insurance agency, brought this action to recover outstanding premiums owed to it for insurance policies and bonds purchased by the defendant West Haven Painting and Decorating, Inc. (West Haven Painting). The defendant Thomas Laugeni appeals from the judgment on the corrected report of the trial referee in favor of the plaintiff. He claims that the trial court improperly rendered judgment on the report because the oral guarantee on which the plaintiff based its claim against him is unenforceable pursuant to the statute of frauds, General Statutes § 52-550 (a) (2).

The facts found by the attorney trial referee reveal that in 1983 the Thomas Laugeni Trust, of which Laugeni was the trustee, owned one third of the shares in West Haven Painting. Also, a corporation in which Laugeni had an ownership interest was the landlord of West Haven Painting and received rent from it. In 1983, Laugeni orally told Mark Kerin, president of the plaintiff, that he personally guaranteed the money then owed by West Haven Painting to the plaintiff, as well as any further debts incurred by it for insurance and bond premiums. On the strength of this undertaking by Laugeni, the plaintiff made advances to West Haven Painting and allowed it to carry balances due. The trial referee found that Laugeni’s guarantee of payments extended only to debts incurred by West Haven Painting on or before July 16, 1986.

In 1989, the plaintiff commenced this action against West Haven Painting to recover its outstanding debt and subsequently was permitted to cite in Laugeni as a party defendant on the basis of his oral personal guarantee of West Haven Painting’s debt. After a default judgment entered against West Haven Painting, an attorney trial referee heard the case as to Laugeni. At trial, Laugeni argued that his oral guarantee was unenforceable by virtue of the statute of frauds, § 52-550 (a) (2). The trial referee found that Laugeni’s guarantee was an original undertaking and, consequently, was not within the statute of frauds. The trial court rendered judgment, in accordance with the report of the trial referee, in favor of the plaintiff against Laugeni, and this appeal followed.

The statute of frauds provides that an oral promise made to answer for the debt of another is unenforceable. General Statutes § 52-550 (a) (2). The statute does not apply, however, if the promise is an original undertaking rather than a collateral one. Otto Contracting Co. v. S. Schinella & Son, Inc., 179 Conn. 704, 710, 427 A.2d 856 (1980). “Fundamentally the distinction between a contract which falls within the condemnation of the statute of frauds and one which does not is that the former is a collateral undertaking to answer in case of a default on the part of the obligor in the contract, upon whom still rests the primary liability to perform, whereas in the latter the obligation assumed is a primary one that the contract shall be performed.” Bartolotta v. Calvo, 112 Conn. 385, 389, 152 A. 306 (1930).

“The test established by our cases is that stated in Bartolotta v. Calvo, [supra, 112 Conn. 391]: ‘If . . . there is a benefit to the promisor which he did not before, and would not otherwise, enjoy and in addition the act is done upon his request and credit there ordinarily arises an original undertaking not within the statute.’ ‘The question as to whom credit was given, which is determinative of whether the agreement was an original undertaking not within the statute, is one of fact.’ Meyers v. Arm, 126 Conn. 579, 583, 13 A.2d 507 (1940); Cordner v. Manevetz, 92 Conn. 587, 590, 103 A. 842 (1918).” Otto Contracting Co. v. S. Schinella & Son, Inc., supra, 179 Conn. 711. Consequently, the finding of the trial court is subject only to limited appellate review to determine whether it is clearly erroneous in light of the evidence in the whole record. Stelco Industries, Inc. v. Bette, 2 Conn. App. 17, 21, 475 A.2d 1105 (1984); Otto Contracting Co. v. S. Schinella & Son, Inc., supra, 709.

Upon review of the whole record, we conclude that the finding of the trial referee was not clearly erroneous. The trial referee found that the advances to West Haven Painting by the plaintiff were made on the strength of Laugeni’s credit. The testimony at trial established that the plaintiff extended credit to West Haven Painting on the basis of Laugeni’s personal guarantee and a review of Laugeni’s personal financial statement. The trial referee also found that it is plausible that Laugeni had benefited from the credit extended to West Haven Painting. Laugeni was the trustee of a trust that owned one third of West Haven Painting and an owner of a corporation that received rents from it. The trial referee correctly noted, however, that “it is not necessary for an original undertaking to be taken out of the statute of frauds that the promisor receive any benefit from his promise. It is enough that the promise was an inducement for the extension of credit. Equipment Distributors, Inc. v. Adams, 33 Conn. Sup. 528, 531, 358 A.2d 367 (1976). And it need not be the only inducement. Grillo v. Canis-traro, 147 Conn. 1, 5, 155 A.2d 919 (1959).”

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-550 provides in pertinent part: “(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged . . . (2) against any person upon any special promise to answer for the debt, default or miscarriage of another...."


author: Dupont, C. J.

text:
    Richard F. Nicoll v. State of Connecticut
    (14266)
    Dupont, C. J., and Foti, Landau, Heiman and Hennessy, Js.
    Considered May 15
    decision released June 5, 1995

      Robert A. Whitehead, assistant attorney general, in support of the motion.
   Dupont, C. J.

This court granted a motion to dismiss this appeal on February 8,1995. That motion had been filed on behalf of the state by the commissioner of administrative services on January 9, 1995. The appeal was dismissed by order, without written decision. The defendant’s motion raised two grounds for dismissal. The first was untimeliness of the appeal, and the second was a defect in the wording of the appeal form. Subsequently, on April 24, 1995, our Supreme Court granted the pro se plaintiff’s petition for certification limited to the following issue: “Under the circumstances of this case, was the Appellate Court correct in dismissing the plaintiff’s appeal?” Nicoll v. State, 233 Conn. 902, 903, 657 A.2d 643 (1995).

On May 8, 1995, the defendant filed a request that we issue an articulation of the “circumstances of the case” that formed the basis for our dismissal of the appeal. In its motion, the defendant concedes, as it must, that there is no rule of practice that permits such a request from this court. The defendant, therefore, bases its request on the “good cause” language of Practice Book § 4187, which provides that this court may suspend the requirements of the rules “[i]n the interest of expediting decision, or for other good cause shown . . . .”

Because there is no provision in our rules or any statute that permits either of the state’s appellate courts to entertain requests for articulation, motions for articulation addressed to us must be dismissed as improper. See State v. Ellis, 224 Conn. 711, 621 A.2d 250 (1993). There is, therefore, no rule that may be suspended to allow us to act upon the motion to articulate, and Practice Book § 4187 has no application.

Although we must dismiss the defendant’s motion to articulate, we have determined that in this case we will, sua sponte, reconsider the motion of the defendant to dismiss the appeal to provide guidance to the members of the bar and the public with regard to our treatment of late appeals when a timely motion to dismiss an appeal has been made. See Gibbs v. Mase, 11 Conn. App. 289, 290, 526 A.2d 7 (1987).

It is well settled that this court has jurisdiction to consider late appeals if, in our discretion, we choose to do so. Kelley v. Bonney, 221 Conn. 549, 559 n.4, 606 A.2d 693 (1992). This is so even when a party timely moves to dismiss an untimely appeal. Connelly v. Doe, 213 Conn. 66, 69 n.5, 566 A.2d 426 (1989). Given the large number of appeals and motions filed in this court, however, we have adopted a policy that gives precedence to those appeals that are timely filed in compliance with Practice Book § 4009. Therefore, when a motion to dismiss that raises untimeliness is, itself, timely filed pursuant to Practice Book § 4056, it is ordinarily our practice to dismiss the appeal if it is in fact late, and if no reason readily appears on the record to warrant an exception to our general rule.

This practice is based in part on the fact that if the untimely appeal is entertained, a delinquent appellant would obtain the benefit of the appellate process after contributing to its delay, to the detriment of others with appeals pending who have complied with the rules and have a right to have their appeals determined expeditiously. Appellees are given the right under our rules to object to the filing of a late appeal and should be given the benefit of that rule, barring unusual circumstances or unless they waive the benefit of that rule. See Federal Deposit Ins. Corp. v. Hillcrest Associates, 233 Conn. 153, 173, 659 A.2d 138 (1995). We ordinarily dismiss late appeals that are the subject of timely motions to dismiss, knowing also that our discretion can be tempered by Practice Book § 4183 (6), which provides for the filing of late appeals for good cause shown. In this case, having determined that the appeal was in fact late and that the defendant’s motion to dismiss was timely, we chose to exercise our discretion to dismiss it.

The defendant’s motion for summary judgment was filed on December 10,1993. The trial court granted the summary judgment on the basis of the failure of the plaintiff to exhaust his administrative remedies. The judgment was rendered on November 9, 1994, and notice issued on that day to all parties. Thereafter, on November 21,1994, the trial court, sua sponte, issued a clarification. The court stated that a prior postcard notice, sent on May 26,1994, granting the defendant’s motion for summary judgment contained a judgment date of May 16, 1994, whereas the correct date of the granting of summary judgment was November 9,1994. The plaintiff did not seek an extension of time to file his appeal under Practice Book § 4040, although the appeal period had not yet run. The court’s clarification did not address or modify the substance or terms of the judgment in any respect, and only confirmed the validity of the November 9, 1994 notice. The appeal period, therefore, began to run on November 9, 1994, the date of issuance of the judgment, and the plaintiff’s appeal, filed on December 12, 1994, was clearly untimely.

The defendant’s motion to dismiss was timely filed within ten days of the filing of the untimely appeal. The plaintiff did not timely oppose the defendant’s motion to dismiss and filed a motion to be allowed to file a late opposition, which we granted. In his late opposition, the plaintiff claimed that notice of the judgment issued on November 21 not November 9,1994. We concluded to the contrary on the basis of the facts before us, and dismissed the appeal. Upon reconsideration, we conclude that the motion to dismiss was properly granted.

The defendant’s motion for articulation is dismissed as improper.

In this opinion the other judges concurred.

       We dismissed the appeal because it was untimely and, therefore, we did not need to reach the defendant’s second ground.

       Practice Book § 4051, which provides for motions for articulation, clearly applies only to requests for articulation from a trial judge. That section provides: “An original and three copies of a motion for rectification or articulation shall be filed with the appellate clerk and forwarded by such clerk to the trial judge. The trial judge shall file the ruling on the motion with the appellate clerk. ...” (Emphasis added.)

       Practice Book § 4009 provides in relevant part: “The party appealing shall, within twenty days, except where a different period is provided by statute, from the issuance of notice of the rendition of the judgment or decision from which the appeal is taken file an appeal in the manner prescribed by Sec. 4012

       Practice Book § 4056 provides in relevant part: “Any claim that an appeal . . . should be dismissed, whether based on lack of jurisdiction, failure to file papers within the time allowed or other defect, shall be made by a motion to dismiss the appeal or writ. Any such motion must be filed in accordance with Secs. 4041 and 4042 within ten days after the filing of the appeal ... or if the ground alleged subsequently occurs, within ten days after it has arisen, provided that a motion based on lack of jurisdiction may be filed at any time. . . .”

       Practice Book § 4183 provides in relevant part: “The supervision and control of the proceedings on appeal shall be in the court having appellate jurisdiction from the time the appeal is filed, or earlier, if appropriate, and, except as otherwise provided in these rules, any motion the purpose of which is to complete, correct or otherwise perfect the trial court record for presentation on appeal shall be made to the court in which the appeal is pending. The court may . . . on its own motion or upon motion of any party . . . (6) order that a party for good cause shown may file a late appeal. . . .”

       Practice Book 5 4040 provides in relevant part: “(a) If an appeal has not yet been filed, the judge who tried the case may, for good cause shown, extend the time provided for filing the appeal, except as may be otherwise provided in these rules. . . .”