author: Spallone, J.

text:
    State of Connecticut v. Joseph N. Tulli
    (5919)
    Spallone, Bieluch and Stoughton, Js.
    Argued December 16, 1987
    decision released May 3, 1988

      Michael Graham, for the appellant (defendant).

      John F. Cocheo, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellee (state).
   Spallone, J.

The'defendant appeals from the judgment of conviction, following a conditional plea of nolo contendere to an amended information charging him with illegal possession of a narcotic substance (cocaine) with the intent to sell; General Statutes § 21a-277 (a); illegal possession of under four ounces of a cannabis-type substance; General Statutes § 21a-279 (c); and possession of drug paraphernalia. General Statutes § 21a-267 (a).

The defendant contends that the trial court erred (1) in its denial of his motion to suppress evidence on the grounds that the search warrant failed to establish probable cause, and (2) in its denial of his motion to suppress evidence filed on the basis of alleged violations of the statutory requirements for the application, execution and return of a search warrant. We find no error.

I

The defendant first claims that the affidavit accompanying the search warrant application failed to contain any statement indicating the reliability of the confidential informant used by the police; thus the warrant should not have issued for lack of probable cause. We do not find any merit to this claim.

Although we must agree that a statement regarding the reliability of an informant is generally required in a search warrant application; Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); the absence of such a statement is not an immediate death knell for the search warrant. Just as an affiant’s unadorned and conclusory assertion of the reliability of a confidential informant may be insufficient to establish informant credibility; State v. Salz, 8 Conn. App. 125, 132 n.3, 512 A.2d 921, cert. denied, 201 Conn. 807, 515 A.2d 380 (1986); so it is that the failure to include such a bald assertion does not automatically preclude a finding of credibility. The standard which must be met, rather, is that exemplified by the well-known Aguilar-Spinelli test.

“The Aguilar-Spinelli test for reviewing a magistrate’s finding of probable cause consists of two prongs:

‘ “The issuing [judge] must be informed of (1) some of the underlying circumstances relied on by the person providing the information to the affiant; and (2) some of the underlying circumstances from which the affiant concluded (a) that the informant, whose identity need not even be disclosed, was credible, or (b) that his information was reliable.” ’ State v. Delmonaco, 194 Conn. 331, 338, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984), [quoting] State v. Jackson, 162 Conn. 440, 446, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S. Ct. 198, 34 L. Ed. 2d 121 (1972).” State v. Morrill, 205 Conn. 560, 566, 534 A.2d 1165 (1987). The defendant here challenges only the sufficiency of the affidavit in regards to the second prong of the test — that the informant was credible in general, or that the information given in this particular instance was reliable. See State v. Garcia, 7 Conn. App. 354, 358, 508 A.2d 824 (1986). Because, in this case, there was no claim that the informant had a “track record” of providing reliable information, which is how part (a) of the second prong is most often satisfied, we proceed directly to part (b). “[I]t is only necessary that either part (a) or part (b) of this prong be satisfied . . . .” (Emphasis added.)State v. Morrill, supra, 567.

It is axiomatic that an informant’s reliability may be established in alternate ways. Spinelli v. United States, 393 U.S. 410, 417-18, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). “Three of the most common factors to evaluate the reliability of an informant tip are (1) corroboration of the information of the police, (2) declarations against penal interest by the informant-declarant, and (3) the reputation and past criminal behavior of the suspect.” State v. Ferguson, 185 Conn. 104, 113, 440 A.2d 841 (1981).

On the basis of our detailed review of the affidavit accompanying the search warrant, we find that sufficient indicia of the reliability of the informant exists in the warrant application. The following pertinent information was included in the affidavit: In early May of 1986, the confidential informant reported to the affiants that he knew of a white male by the name of Joe Tulli who was selling large amounts of cocaine from his first floor apartment at 98 Chestnut Street, Norwich. The informant stated that he had purchased cocaine from the defendant on numerous occasions during the three months prior to his meeting with the affiants. The informant described the defendant as being a white male, 5 feet, 9 inches tall, 250 pounds, with brown hair and brown eyes.

In the two weeks following this first interview, the affiants and the informant arranged two controlled purchases of cocaine from the defendant. Both were conducted at the defendant’s residence at 98 Chestnut Street. After the completion of each transaction, a field test conducted on a portion of the white powder purchased from the defendant resulted in findings which indicated the presence of cocaine. These findings were later verified by the state toxicology laboratory. In addition, as a result of their own investigation, the affiants discovered that a Joseph N. Tulli was currently receiving mail addressed to him at 98 Chestnut Street, and that the defendant had been previously arrested and convicted twice on two separate narcotics-related violations.

Applying this information to the three factors espoused by State v. Ferguson, supra, yields the following conclusions. First, the police were able to corroborate the informant’s tip concerning the description of the defendant himself, the description of his residence and the fact that he was currently residing there, evidenced by the fact that he was receiving mail at that location. In addition, and perhaps most importantly, the police corroborated the informant’s statements concerning the defendant’s involvement in illegal narcotics sales by engaging in two separate controlled purchases from the defendant, both of which resulted in the informant’s purchase of a substance which tested positively for cocaine. “Where many significant portions of a statement of an informant have been verified from independent reliable sources, it may be reasonable to infer the accuracy of the remainder. State v. Ferguson, [supra,] 113; State v. Jackson, [supra,] 447.” (Citations omitted.) State v. Daley, 189 Conn. 717, 721, 458 A.2d 1147 (1983); see also State v. Morrill, supra, 567-68.

Second, while relating his information to the police, the confidential informant admitted that he had made numerous purchases of cocaine from the defendant. This was clearly a statement against the informant’s penal interest. “Declarations against penal interest by the informant-declarant are another factor used to evaluate the reliability of an informant’s information. ‘Common sense in the important daily affairs of life would induce a prudent and disinterested observer to credit these statements. People do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime . . . carry their own indicia of credibility.’ United States v. Harris, 403 U.S. 573, 583, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971). Statements against penal interest . . . ‘may be a substantial basis for crediting an informant’s tip and may be considered by an issuing authority in a warrant proceeding.’ State v. Ferguson, supra, 115.” State v. Just, 185 Conn. 339, 368-69, 441 A.2d 98 (1981).

Third, and finally, the two earlier narcotics-related convictions of the defendant can properly be considered when determining the reliability of an informant’s tip. “[T]he prior arrest record, pertaining as it did to the reputation of the defendant, clearly was ‘ “a practical consideration of everyday life” upon which an officer (or a magistrate) may properly rely in assessing the reliability of an informant’s tip.’ United States v. Harris, supra, 583.” State v. Romano, 165 Conn. 239, 246, 332 A.2d 64 (1973); see also United States v. Canestri, 518 F.2d 269, 272 (2d Cir. 1975); State v. Ferguson, supra, 115.

In conclusion, although the presence of only one of the factors suggested by State v. Ferguson, supra, may or may not support a finding of probable cause, surely the presence of all three factors justifies the issuance of a search warrant. It must be remembered that “[pjrobable cause is not ordinarily produced as one piece of precast concrete. It is a ‘mosaic’; State v. Abbott, 5 Conn. App. 441, 445, 499 A.2d 437 (1985); which is established by fitting pieces of information together so that they can ultimately convince a magistrate that there ‘ “is a fair probability [of] proscribed activity”. . . .’Id., 446.” State v. Ralston, 7 Conn. App. 660, 682, 510 A.2d 1346 (1986). Each case must be tested on its own when determining whether sufficient indicia of facts and circumstances exist to support the judge’s finding of probable cause and his ultimate decision to issue the warrant; State v. Jackson, supra, 452; and that finding of probable cause “should be paid great deference by reviewing courts.” State v. Just, supra, 369, citing Jones v. United States, 362 U.S. 257, 270-71, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960); State v. Ferguson, supra, 118; State v. Bember, 183 Conn. 394, 412, 439 A.2d 387 (1981).

II

The defendant’s second claim of error can be handled more expeditiously than the first. The defendant claims that the search warrant in this case was applied for, executed and returned to the court in variance with the requirements of General Statutes §§ 54-33a et seq.

First, the defendant claims that the warrant was not executed within the time frame established by General Statutes § 54-33a (c) or by § 54-33c. Read together, these sections provide that after the issuance of a warrant, the search should be conducted within a reasonable time, but no longer than ten days may pass before the warrant is executed. The warrant in this case was issued on May 15,1986 and the search was performed on May 23,1986 — a total of nine days, inclusive, intervened. There is clearly no merit to the claim, whether based on statutory or constitutional grounds, that this warrant was not executed in a timely manner. See State v. Burgos, 7 Conn. App. 265, 271, 508 A.2d 795 (1986).

Second, the defendant contends that, after its execution, the warrant was not returned to the court “with reasonable promptness consistent with due process of law,” as is required by § 54-33c. The defendant alleges that the warrant and the inventory of items seized was not returned to the court until after July 14, at the very earliest — nearly two months after its execution.

Our review of the record and transcripts reveals only the following facts: (1) that the inventory list compiled by the police after the search was dated May 27,1986, four days after the search; and (2) on July 28, 1986, the defendant moved for the search warrant and attendant papers to be unsealed and that the motion was granted, and the documents unsealed, on that day. No further information concerning the whereabouts of the warrant or of the date it was returned to the court can be found in the record.

Even if we were to accept the defendant’s allegation that the warrant was not returned to court until two months after its execution, and even if we were to agree that that span of time was “unreasonable” within the meaning of § 54-33c, we could not find reversible error because of the defendant’s failure to show how he was prejudiced by such a delay. In fact, the record clearly reflects that the defendant made no effort to obtain a copy of the warrant or inventory until July 28,1986, and that, when the defendant did so move for a copy of the documents on that date, he was provided with them. On the basis of these facts, we find no merit to the defendant’s claim. See, e.g., State v. Gonzalez, 197 Conn. 677, 681, 500 A.2d 1330 (1985); State v. Milum, 197 Conn. 602, 616, 500 A.2d 555 (1985).

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 54-94a. conditional nolo contendere plea, appeal of denial of motion to suppress or dismiss. When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       A third claim, that the court erred in its denial of a full evidentiary hearing regarding alleged material misrepresentations or omissions in the affidavits supporting the search warrant, was withdrawn by counsel for the defendant at oral argument.

        Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). Under article first, § 7, of our state constitution, a finding of probable cause must conform to the Aguilar-Spinelli two-prong analysis. State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985). Our previous determinations that the Kimbro holding governs searches made pursuant to a warrant as well as to warrantless searches; see, e.g., State v. Salz, 8 Conn. App. 125, 512 A.2d 921 (1986); State v. Ralston, 7 Conn. App. 660, 510 A.2d 1346 (1986); have been recently supported by our Supreme Court. State v. Morrill, 205 Conn. 560, 565-66, 534 A.2d 1165 (1987) (applying AguilarSpinelli analysis to search authorized by warrant).

       It has been previously found that “the reliability of an informer [can be] bolstered by testing the suspected narcotics (before the warrant [is] sought) to see if, in fact, it was narcotics. ...” State v. Ferguson, supra, 114 n.7, citing Commonwealth v. Stewart, 358 Mass. 747, 752, 267 N.E.2d 213 (1971). Other jurisdictions have held that a controlled buy can establish an informant’s reliability and veracity. See, e.g., State v. Arnold, 214 Neb. 769, 336 N.W.2d 97 (1983); People v. Larson, 128 Mich. App. 552, 340 N.W.2d 324 (1983).

       At oral argument, the state explained its failure to brief this claim by-arguing that this claim was unavailable to the defendant in this court because he did not raise it in the trial court and made no showing that it is reviewable under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). This is an inaccurate reading of the trial court record. The defendant’s motion to suppress specifically presented this claim to the trial court.

       General Statutes § 54-33a (c) provides: “A warrant may issue only on affidavit sworn to by the complainant or complainants before the judge and establishing the grounds for issuing the warrant, which affidavit shall be part of the arrest file. If the judge is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person, place or thing to be searched. The warrant shall be directed to any police officer or a regularly organized police department or any state policeman or to a conservation officer, special conservation officer or patrolman acting pursuant to section 26-6. It shall state the grounds or probable cause for its issuance and it sha,ll command the officer to search within a reasonable time the person, place or thing named, for the property specified.” (Emphasis added.)
      General Statutes § 54-33c provides: “execution and return of warrant. COPY OF AFFIDAVIT TO BE GIVEN TO OWNER, OCCUPANT OR PERSON named IN warrant; exceptions. The warrant shall be executed within ten days and returned with reasonable promptness consistent with due process of law and shall be accompanied by a written inventory of all property seized. A copy of such warrant shall be given to the owner or occupant of the dwelling, structure, motor vehicle or place designated therein, or the person named therein. Within forty-eight hours of such search, a copy of the application for the warrant and a copy of all affidavits upon which the warrant is based shall be given to such owner, occupant or person. The judge may, by order, dispense with the requirement of giving a copy of the affidavits to such owner, occupant or person at such time if the applicant for the warrant files a detailed affidavit with the judge which demonstrates to the judge that (1) the personal safety of a confidential informant would be jeopardized by the giving of a copy of the affidavits at such time, or (2) the search is part of a continuing investigation which would be adversely affected by the giving of a copy of the affidavits at such time, or (3) the giving of such affidavits at such time would require disclosure of information or material prohibited from being disclosed by chapter 959a. If the judge dispenses with the requirement of giving a copy of the affidavits at such time, such order shall not affect the right of such owner, occupant or person to obtain such copy at any subsequent time.” (Emphasis added.)
      In accordance with § 54-33c, the officers applying for the search warrant asked the court to dispense with the requirement of immediately releasing a copy of the warrant and accompanying affidavits. The court granted this request and the warrant was ordered sealed.


source: Caselaw Access Project

author: Bieluch, J.

license: Public Domain

text:
    Albert P. Hegyi et al. v. Plan and Zoning Commission of the Town of Fairfield
    (5112)
    Daly, Bieluch and Norcott, Js.
    Argued November 18, 1987
    decision released May 10, 1988

      Jay H. Sandak, for the appellants (plaintiffs).

      Roy H. Ervin, for the appellee (defendant).
   Bieluch, J.

This is an appeal by the plaintiffs, Albert P. Hegyi and Ceil T. Hegyi, from the judgment of the trial court denying their request for a writ of mandamus ordering the defendant plan and zoning commission of the town of Fairfield (commission) to approve their application for a special exception to the town’s zoning regulations. The issue before the trial court was whether the admitted failure of the commission to hold a public hearing on the plaintiffs’ application within either of the time limits established by General Statutes § 8-7d (a) or by the town’s zoning regulations resulted in the automatic approval of the application. The court held that the time limit provisions of the statute and of the zoning regulations are directory and that both requirements “relate to procedural matters and do not incorporate other provisions which expressly or implicitly require automatic approval where a hearing is not held within the time limit prescribed.” The plaintiffs’ claim on appeal focuses upon the narrow issue of whether the time constraints for holding a public hearing contained in General Statutes § 8-7d (a) are mandatory and, if so, whether automatic approval of an application for a special exception is required if a public hearing is not held within the statutorily mandated time schedule. We dismiss this appeal as moot.

The relevant facts are not in dispute. The plaintiffs are the owners of seven and one-quarter acres of improved real property located in a Residence AAA District in the Southport area of the town of Fairfield. On January 16,1984, the plaintiffs submitted an application to the commission for a special exception to use a portion of their property as a private landing area for a personal helicopter. The first commission meeting after the filing of the plaintiffs’ application took place on January 24, 1984, but no significant action relative to the application took place at that time. The application was unanimously approved by the commission at an executive session on March 22, 1984. This approval was subsequently vacated by the commission at another executive session on April 10,1984, for the stated reason that there should have been a public hearing on the plaintiffs’ application. The plaintiffs, and certain neighbors of the plaintiffs, filed separate appeals from these actions of the commission.

The commission did not conduct a public hearing on the plaintiffs’ application within either the prescribed sixty-five day time limit of General Statutes § 8-7d (a), or the sixty day limit of the town’s zoning regulations. A public hearing was eventually scheduled to take place on April 24,1984. At this hearing, counsel for the plaintiffs appeared and requested that it be adjourned until the trial court ruled on the plaintiffs’ pending appeal from the commission’s action vacating its prior approval of the plaintiffs’ application. This request was complied with; the public hearing was, however, never resumed.

On May 21, 1984, the representative town meeting of the town of Fairfield passed an ordinance prohibiting private landing sites such as the one sought by the plaintiffs. This ordinance affected all uses authorized by the town after January 1, 1972.

The plaintiffs, on July 6, 1984, applied to the trial court for a writ of mandamus directing the commission to issue an approved application to them. The court denied this request. The plaintiffs have appealed to this court from the judgment denying their application for a writ of mandamus.

The dispositive question for this court is whether the intervening passage of the ordinance prohibiting private landing sites such as the one sought by the plaintiffs renders this appeal moot. The plaintiffs’ claim relates to the zoning regulations in effect at the time the commission denied their application. Under the current regulations, the plaintiffs are clearly prohibited from building a helicopter pad for their private use. Our determination as to the legality of the commission’s actions under the previous regulation would therefore be futile because no actual relief could follow. Consequently, we hold that this appeal is moot.

“With certain exceptions not applicable here, ‘the zoning law or regulation in effect at the time of the decision of a court is controlling as opposed to that in effect when the proceedings were instituted or when the administrative agency entered its decision upon the application.’ (Footnote omitted.) McCallum v. Inland Wetlands Commission, 196 Conn. 218, 223, 492 A.2d 508 (1985); Johnson v. Zoning Board of Appeals, 2 Conn. App. 24, 27, 475 A.2d 339 (1984). Zoning disputes should not be settled on the basis of regulations which no longer exist. Johnson v. Zoning Board of Appeals, supra, 26. The policy behind this is a practical one: to do substantial justice while avoiding the necessity of protracted retrials which will ultimately have the same result. McCallum v. Inland Wetlands Commission, supra, 224.” East Lyme v. Waddington, 4 Conn. App. 252, 258-59, 493 A.2d 903, cert. denied, 197 Conn. 811, 499 A.2d 61 (1985). One other practical consideration is that the court might thereby create an “instant nonconforming use.”

If these principles are applied to the case before us, it is clear that the appeal must be dismissed as moot. We, therefore, need not reach the issue of the commission’s failure to conduct a timely public hearing on the plaintiffs’ application within the time constraints of General Statutes § 8-7d (a). Consequently, we do not address the question of the plaintiffs’ claimed automatic entitlement to approval of their application as a consequence of the commission’s nonfeasance, since that approval would now be against the town’s zoning regulations.

The rule is well settled that the existence of an actual controversy is essential to appellate jurisdiction. It is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. McCallum v. Inland Wetlands Commission, supra, 225. Because the relief sought by the plaintiffs would be unavailing by reason of the subsequent ordinance, the issues presented in this appeal are moot. See Rosnick v. Zoning Commission, 172 Conn. 306, 308-10, 374 A.2d 245 (1977), and cases cited therein.

The appeal is dismissed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 8-7d. hearings and decisions, time limits, day OF receipt, (a) Except as provided in subsection (b) of this section, in all matters wherein a formal petition, application, request or appeal must be submitted to a zoning commission, planning and zoning commission or zoning board of appeals under this chapter and a hearing is required on such petition, application, request or appeal, such hearing shall commence within sixty-five days after receipt of such petition, application, request or appeal and shall be completed within thirty days after such hearing commences. All decisions on such matters shall be rendered within sixty-five days after completion of such hearing. The petitioner or applicant may consent to one or more extensions of any period specified in this subsection, provided the total extension of any such period shall not be for longer than the original period as specified in this subsection, or may withdraw such petition, application, request or appeal.” (Emphasis added.)

       Section 27.3 of the Fairfield Zoning Regulations provides in relevant part: “Public hearing. The town plan and zoning commission or the board of appeals, as the case may be, within sixty days after receipt of a completed special exception application meeting the requirements of paragraph 27.2, shall hold a public hearing on the application. . . . Within thirty days after the public hearing, the commission or the board, as the case may be, shall approve, modify and approve or disapprove the special exception application.”

       These appeals, based on the same facts, were consolidated for trial. The first appeal, filed on April 11, 1984, was taken by neighbors of the plaintiffs claiming that the commission acted illegally in approving the plaintiffs’ application in executive session on March 22, 1984, without a public hearing. Bok v. Plan & Zoning Commission, Superior Court, judicial district of Fairfield, Docket No. 216237 (June 30, 1986). The second appeal was filed by the plaintiffs on April 21,1984, claiming that the commission could not legally vacate its prior approval of their application without notice. Hegyi v. Plan & Zoning Commission, Superior Court, judicial district of Fairfield, Docket No. 216600 (June 30, 1986). The court, Harrigan, J., sustained the Bok appeal; the Hegyi appeal was dismissed as moot in light of the decision in Bok. No appeal was taken from those judgments.

       The ordinance adopted by the town was as follows:
      “Be It Ordained by the Representative Town Meeting of the Town of Fairfield:
      “That the taking off or landing of any passenger or freight carrying airplanes, helicopters and any other kind of aircraft, registered by the Federal Aviation Administration, or any other governmental agency, is prohibited in the Town of Fairfield, except as follows:
      “(A) In Emergencies.
      “(B) By Federal, State or Local Government Officials or their authorized agents in the exercise of governmental responsibilities.
      “(C) For public or educational purposes when authorized by a permit issued by the Chief of Police which shall be issued only in accordance with the regulations as shall be adopted by the Police Commission and approved by the Board of Selectmen.
      “This ordinance shall not affect uses authorized by the Town of Fairfield prior to January 1, 1972.
      “The term ‘passenger’ shall include any pilot or co-pilot.
      “Any person who violates any of the provisions of this ordinance shall be fined not more than $100.00 for each violation.”


author: Dupont, C. J.

text:
    Beatrice Cuartas et al. v. Town of Greenwich et al.
    (5597)
    Dupont, C. J., Borden and Stoughton, Js.

      Argued February 10
    decision released May 10, 1988

      Kenneth A. Votre, for the appellants (plaintiffs).

      Eugene F. McLaughlin, Jr., for the appellees (defendants).
   Dupont, C. J.

The plaintiffs appeal from the judgment rendered on a jury verdict in favor of the defendants in this personal injury action. We find no error.

This case involves the following undisputed facts. The named plaintiff, Beatrice Cuartas, who was ten years old, was playing with her friend, who was eight years old, at the William Street playground, a public playground owned, managed, and maintained by the named defendant, the town of Greenwich. Located within the playground was a flagpole with a halyard hanging from it. While Beatrice was swinging from the halyard, with her friend sitting on her lap, the flagpole broke and fell, pinning Beatrice underneath it. Beatrice suffered injuries as a result of the accident.

The plaintiff Jose Cuartas brought this action as the father and next friend of Beatrice Cuartas. The complaint, sounding in negligence, alleged damages suffered as a result of the defendants’ maintenance of a dangerous, defective, and unsafe condition in a public playground. Jose Cuartas also claimed damages for medical expenses paid by him for the benefit of Beatrice.

The defendants denied being negligent and, by way of a special defense, alleged that the plaintiffs were each contributorily negligent. At trial, neither the plaintiffs nor the defendants requested that interrogatories be submitted to the jury for the purpose of explaining or limiting its verdict. Practice Book § 312. The jury returned a general verdict in favor of the defendants. It must be presumed, therefore, that the jury found every issue for the defendants. LaFleur v. Farmington River Power Co., 187 Conn. 339, 342, 445 A.2d 924 (1982); Hanlon v. Stettbacher, 13 Conn. App. 571, 572, 538 A.2d 705 (1988).

On appeal, the plaintiffs claim that the trial court erred (1) in submitting to the jury, to be determined as a question of fact, the issue of whether the maintenance of the flagpole located in the public playground was a governmental or ministerial function, (2) in failing to instruct the jury, as requested in the plaintiffs’ request to charge, that the negligence of the plaintiff father cannot be imputed to the plaintiff child, (3) in allowing the jury to consider, with respect to the issue of comparative negligence, the plaintiff child’s violation of a municipal ordinance prohibiting any person from climbing, walking, standing, or sitting upon any equipment, furnishing, or structure in a park not designed or customarily used for such purposes, (4) in failing to charge the jury on the doctrine of concurrent causation, (5) in failing to charge the jury on the duty of care owed by a landowner where the presence of children is to be reasonably expected, and (6) in denying the plaintiffs’ motion to set aside the verdict.

The defendants argued that this court should affirm the trial court’s judgment on the basis of the general verdict rule. The plaintiffs argue that this court should not consider the applicability of the general verdict rule because the defendants failed to raise this as an issue on appeal in their statement of issues. Practice Book § 4013 (a) (1) provides that “[i]f an appellee wishes to present for review alternate grounds upon which the judgment may be affirmed ... he shall file a preliminary statement of the issues within fourteen days from the filing of the appellant’s preliminary statements of the issues.” The defendant appellees in this case did not file a § 4013 (a) (1) statement of issues. They need not have done so in this case.

Where the general verdict rule is clearly applicable, compliance with Practice Book § 4013 (a) (1) is not required. See, e.g., Logan v. Greenwich Hospital Assn., 191 Conn. 282, 309, 465 A.2d 294 (1983); Batick v. Seymour, 186 Conn. 632, 639, 443 A.2d 471 (1982); Kelly v. Bliss, 160 Conn. 128, 132-33, 273 A.2d 873 (1970). The general verdict rule is clearly applicable in this case.

“[A] general verdict must stand if the jury could have found for the defendant on any one of the material issues it had to decide.” Murteza v. State, 7 Conn. App. 196, 202, 508 A.2d 449, cert. denied, 200 Conn. 803, 510 A.2d 191 (1986). “Where a jury has returned a general verdict for a defendant, it is impossible to know whether the case was resolved on the basis of the plaintiff’s failure to prove the case against the defendant or on the basis of the defendant’s successful assertion of a special defense.” Hanlon v. Stettbacher, supra, 573.

A defendant’s denial of negligence and allegation of contributory negligence “constitute two separate and distinct defenses, either one of which could support the jury’s general verdict.” LaFleur v. Farmington River Power Co., supra, 342. The defendants here claim that they were not negligent. If there is no reversible error in the charge as to the defendants’ negligence, the general verdict must be affirmed.

Concerning the issue of the defendants’ alleged negligence, the plaintiffs on appeal claim two errors in the charge: (1) the failure of the court to charge the jury-on concurrent causation; and (2) the failure of the court to charge the jury on the proper standard of care that the defendants must exercise with respect to children. Neither of these claims of error, however, was specifically raised in the plaintiffs’ motion to set aside the verdict. The plaintiffs’ motion simply states that the court should set aside the verdict because the “verdict is contrary to law” and “against the evidence.” These general claims of the motion to set aside the verdict were not expanded upon in the plaintiffs’ briefs in support of that motion. Although the plaintiffs requested oral argument on their motion, they have not filed any transcripts with this court concerning oral argument during any hearing on the motion, and we are unaware, therefore, of any attempt by the plaintiffs to raise the specific claims now presented on appeal.

In order to preserve full appellate review of a jury charge assigned as error, an appellant must not only move to set aside the verdict; Small v. South Norwalk Savings Bank, 205 Conn. 751, 758, 535 A.2d 1292 (1988); but must also set forth, either in the motion itself, in supporting briefs, or in oral argument at a hearing held on the motion, each claim of error with sufficient specificity to enable the trial court to consider the claimed errors. Voight v. Selman, 14 Conn. App. 198, 200, 540 A.2d 104 (1988); see also Pietrorazio v. Santopietro, 185 Conn. 510, 514-15, 441 A.2d 163 (1981); Mozzer v. Bush, 11 Conn. App. 434, 437, 527 A.2d 727 (1987); Shenefield v. Greenwich Hospital Assn., 10 Conn. App. 239, 243 n.3, 522 A.2d 829 (1987). This rule is essential in order to prevent a judicial game of pin-the-tail-on-the-claim-of-error.

Where, as here, the claimed errors on appeal were not specifically addressed in any briefs or argument in support of a motion to set aside the verdict, our standard of review is limited to a determination of whether the trial court committed “plain error,” Practice Book § 4185; cf. Pietrorazio v. Santopietro, supra; Voight v. Selman, supra. We conclude that the trial court did not commit plain error in charging the jury with respect to the issue of the defendants’ negligence.

“When our review is limited to the plain error standard, the appellant does not have access to plenary review. Review for plain error ‘ “is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).’ Kolich v. Shugrue, 198 Conn. 322, 326, 502 A.2d 918 (1986).” Small v. South Norwalk Savings Bank, supra, 759.

“We consider the [plaintiffs’] claims of error in the light of this rarefied standard of review.” Small v. South Norwalk Savings Bank, supra. We first consider the plaintiffs’ claim that the court erred in failing to charge the jury on concurrent causation. We have reviewed the transcripts and conclude that the trial court properly instructed the jury on proximate cause. This instruction was detailed, sufficient, and correct in the law. The failure to instruct on concurrent causation as to joint and several tortfeasors, therefore, did not, in this case, rise to “any manifest injustice amounting to plain error under all the circumstances.” Valley v. Fazzina, 187 Conn. 423, 428, 446 A.2d 1068 (1982).

The plaintiffs’ fifth claim of error is that the court erred in not charging the jury that “[ujnder Connecticut law [the defendants] had a duty to make that playground safe for children.” This claim, as previously noted, was not specifically raised in connection with the motion to set aside the verdict.

The jury is presumed, as a consequence of its general verdict, to have found that the defendants were not negligent. We conclude upon a plain error review that the court’s instructions concerning the defendants’ alleged negligence were proper and adequate. Since that is so, whether the doctrine of governmental immunity would shield the defendants from liability is irrelevant.

There is no error.

In this opinion the other judges concurred.

       The other defendants are employees of the town of Greenwich.

       In view of our conclusion that, because no reversible error was committed as to the charge relating to the defendant’s negligence, the verdict should be upheld, the claimed errors relating to comparative and imputed negligence need not be considered.

       The question of whether the defendants were protected from liability under the doctrine of governmental immunity was an issue on appeal. See Fraser v. Henninger, 173 Conn. 52, 60, 376 A.2d 406 (1977). We need not address this issue because of our disposition of this appeal on the basis of the general verdict rule, and therefore need not decide the plaintiffs’ first claim of error.


text:
    Dennis Capozziello v. Board of Firearms Permit Examiners
    (6021)
    Dupont, C. J., Borden and Stoughton, Js.

      Submitted on briefs February 11
    decision released May 10, 1988

      Gary A. Mastronardi filed a brief for the appellant (plaintiff).

      Joseph I. Lieberman, attorney general, and John P. Gill, assistant attorney general, filed a brief for the appellee (defendant).
   Dupont, C. J.

The plaintiff appealed to the Superior Court from a decision of the defendant state board of firearms permit examiners (board) sustaining the denial by the commissioner of public safety (commissioner) of the plaintiff’s application for a state permit to carry a pistol or revolver. The board moved to dismiss the appeal due to the plaintiff’s failure to serve the commissioner with a copy of the petition of appeal from the decision of the board. The trial court granted the motion to dismiss, concluding that it lacked jurisdiction because the plaintiff, by failing to serve the commissioner, had not complied with General Statutes § 4-183 (b) of the Uniform Administrative Procedure Act, which requires service upon “all parties of record. The commissioner was not named as a party in the appeal to the trial court. In this appeal from the trial court’s judgment of dismissal, the plaintiff claims that the trial court erred in concluding that the commissioner was a party of record upon whom service of the petition appealing from the board’s decision was required. We agree with the trial court.

We conclude that the commissioner was a party of record in the proceedings before the board. Sergeant Francis J. Whelan of the Connecticut state police appeared at the hearing on behalf of the commissioner, and presented the reasons for the denial of the plaintiff’s application. Furthermore, the rules of procedure of the board, which preface the transcript of the hearing held before the board, provide that “[t]he procedure generally followed by the Board is that each party is requested to make a brief opening statement indicating the scope of his case and what he intends to show. Based on the opening statement, the Board will decide which party will proceed first, the issuing authority [commissioner] or the appellant. The issuing authority in his opening statement should briefly give his reasons for denying or revoking the appellant’s application or permit. . . . ”

The status of the commissioner as a party of record is supported by General Statutes § 29-32b (c), which grants the right of appeal to the board from a decision of the commissioner. Upon an application for such an appeal, the board is required to notify the commissioner of the time and place at which the hearing will be held; General Statutes § 29-32b (d); to order from the commissioner a written statement setting forth the reasons for the denial of the appellant’s application; General Statutes § 29-32b (c); and to notify promptly the commissioner of the board’s decision; General Statutes § 29-32b (e). In this case, the board complied with each of the foregoing statutory requirements. In the event of a decision by the board adverse to the commissioner’s position, the commissioner may appeal to the Superior Court. General Statutes § 29-32b (f).

The appeal to the Superior Court is governed by the Uniform Administrative Procedure Act. General Statutes § 29-32b (f). That act provides, in General Statutes § 4-166 (5), that a “ ‘party’ means each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party.” The commissioner was admitted as a party and participated in the board hearing as a matter of right. General Statutes § 29-32b. He therefore falls within the definition of a “party” pursuant to § 4-166 (5).

The failure to serve notice of an administrative appeal upon a party of record, as required by § 4-183 (b), is a fatal jurisdictional defect mandating dismissal. Hillcroft Partners v. Commission on Human Rights & Opportunities, 205 Conn. 324, 326, 533 A.2d 852 (1987); Minichino v. Freedom of Information Commission, 6 Conn. App. 148, 149, 503 A.2d 1189 (1986). “The right to appeal from the decision of an administrative agency exists only under statutory authority. This right may be taken advantage of only by strict compliance with the statutory provisions by which it is created.” Newtown v. Department of Public Utility Control, 3 Conn. App. 416, 419, 488 A.2d 1286 (1985). The plaintiff here did not serve a party of record and his appeal was properly dismissed.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 4-183 (b) governs because General Statutes § 29-32b (f) provides that “[a]ny person aggrieved by the decision of the board may appeal therefrom in accordance with the provisions of Section 4-183.”
      General Statutes § 4-183 (b) provides: “Proceedings for such appeal shall be instituted by filing a petition in superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the aggrieved person resides or if such person, is not a resident of this state to the court for the judicial district of Hartford-New Britain within forty-five days after mailing of the notice of the final decision of the agency or, if a rehearing is requested, within forty-five days after mailing of the notice of the decision thereon. Copies of the petition shall be served upon the agency and all parties of record within thirty days after mailing of such notice or, if a rehearing is requested, within thirty days after mailing of the notice of the decision thereon, except that service upon an agency may be made by the appellant mailing a copy of the petition by registered or certified mail, postage prepaid, without the use of a sheriff or other officer, to the office of the commissioner of the agency or to the office of the attorney general in Hartford.”

       The commissioner of public safety is the commanding officer of the state police. General Statutes § 29-lb.


author: Norcott, J.

text:
    Board of Pardons v. Freedom of Information Commission
    (5498)
    Daly, Norcott and Foti, Js.
    Argued December 8, 1987
    decision released May 10, 1988

      Marianne D. Smith, assistant general counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellant (defendant).

      John F. Gill, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Stephen J. O’Neill, assistant attorney general, for the appellee (plaintiff).
   Norcott, J.

This is an appeal by the defendant freedom of information commission (FOIC) from the decision of the trial court reversing an FOIC administrative order regarding the propriety of certain executive sessions held by the plaintiff. We find error.

The following facts are relevant to this appeal. On April 5,1982, the plaintiff held a public meeting to consider thirty-five petitions for pardons. At this meeting, each petitioner was given an opportunity to present his case with or without witnesses or documentation. The state’s attorney was then allowed to offer his opinion as to whether a pardon should be granted, and the petitioner was allowed to respond. After all the petitions were heard, the plaintiff purported to convene in executive session to consider the evidence that had been presented as well as certain documentary materials with which the members had been supplied beforehand.

On April 13,1982, the managing editor of the Journal Inquirer newspaper filed a complaint with the defendant alleging in pertinent part that the plaintiff had violated General Statutes § l-18a (e) by illegally convening an executive session to deliberate on prison pardon applications. The complainant asked that the defendant declare null and void all actions taken at the April 5, 1982 session.

The defendant held a hearing on the complaint on June 22,1982. The evidence presented at the hearing comported with the facts stated above. After the close of the hearing, the defendant found that at the April 5 meeting the plaintiff had convened in executive session to discuss certain materials that were exempt from disclosure by state and federal freedom of information laws. The defendant further found, however, that the plaintiff had also considered certain materials that were not exempt. The defendant concluded that the plaintiff had failed to distinguish between the exempt and nonexempt materials and had violated General Statutes § 1-21 to the extent that it had considered nonexempt materials in executive session. The defendant declined to reverse any of the actions taken by the plaintiff at the April 5 hearing, but ordered the plaintiff henceforth to conduct its deliberations in closed session only when such deliberations would result in the disclosure of exempt records, or when otherwise permitted by the language of General Statutes § l-18a (e).

The plaintiff appealed the defendant’s order to the Superior Court. On September 10, 1986, the court issued a memorandum of decision sustaining the plaintiff’s appeal. The court held that all of the petitioners’ records were exempt from disclosure under General Statutes § 1-19 (b) (2).

Before we can address the merits of this appeal, we must first determine whether the trial court had jurisdiction to entertain the plaintiff’s appeal from the decision of the FOIC. “General Statutes § l-21i establishes a right of appeal for any party aggrieved by a decision of the FOIC under the Freedom of Information Act (the act). Therefore, a showing of aggrievement is necessary to establish the Superior Court’s jurisdiction over the appeal of the [plaintiff]. Kulmacz v. Kulmacz, 177 Conn. 410, 412, 418 A.2d 76 (1979).” Zoning Board of Appeals v. Freedom of Information Commission, 198 Conn. 498, 501, 503 A.2d 1161 (1986); Stanchem, Inc. v. Freedom of Information Commission, 13 Conn. App. 315, 319, 536 A.2d 592 (1988).

“ ‘ “The fundamental test for determining aggrievement encompasses a well-settled twofold determination: 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.) Local 1303 & Local 1378 v. FOIC, 191 Conn. 173, 176, 463 A.2d 613 (1983).” ’ Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47, 478 A.2d 601 (1984); Walls v. Planning & Zoning Commission, 176 Conn. 475, 477-78, 408 A.2d 252 (1979).” Zoning Board of Appeals v. Freedom of Information Commission, supra, 502.

In this case, the plaintiff claims to have been aggrieved by a purely prospective order of the FOIC. As we have noted, the order of the FOIC did not disturb any of the actions taken by the plaintiff at the April 5 hearing. Rather, the FOIC merely ordered the plaintiff henceforth to conduct its deliberations in executive session only when the deliberations would result in the disclosure of exempt records. In Zoning Board of Appeals v. Freedom of Information Commission, supra, our Supreme Court held that a party may be aggrieved by a purely prospective order of the FOIC. We fail to see, however, how the FOIC’s order in this case affects a specific and personal interest of the plaintiff.

The plaintiff in this case has no personal interest in the confidentiality of the prisoners’ records which the FOIC order precludes it from considering in executive session. The only persons who have a personal interest in the confidentiality of those records are the prisoners who are likely to be harmed if those records are published. The order in this case is unlike the order discussed in Zoning Board of Appeals v. Freedom of Information Commission, supra. The order in Zoning Board of Appeals affected the zoning board’s personal interest in having confidential communications with its attorneys. In that case, the plaintiff was seeking to protect its own interest on appeal and was not seeking to assert the interests of another.

We find, therefore, that the plaintiff was not an aggrieved party and that the trial court did not properly have jurisdiction over the plaintiff’s appeal.

There is error, the judgment is set aside and the case is remanded to the trial court with direction to render judgment dismissing the plaintiff’s appeal for lack of jurisdiction.

In this opinion the other judges concurred.

       Before the meeting, the members of the board of pardons were given packets containing the petitions and other documents the petitioners had submitted for review. Such documents included presentence investigation reports, medical reports, police reports, reports to the state’s attorney, psychiatric evaluations, trial transcripts, prison records showing disciplinary actions, prison work records, and any other information the prisoner may have had.

       In its memorandum of decision, the trial court ruled that the original complainant did not file an appearance or otherwise participate in the appeal and defaulted him for failure to appear.

       Our inquiry is focused on the Superior Court’s jurisdiction because General Statutes § l-21i (d) grants the FOIC standing to appeal any decision “overturning or modifying” its decision. Zoning Board of Appeals v. Freedom of Information Commission, 198 Conn. 498, 501, 503 A.2d 1161 (1986).


author: Daly, J.

text:
    Nadine C. Harris v. Donald Harris
    (5714)
    Daly, Bieluch and Foti, Js.

      Argued February 17
    decision released May 10, 1988

      Philip K. Meister, with whom, on the brief, was Michael E. Grossmann, for the appellant (defendant).

      Deborah S. Chang, with whom, on the brief, were Ernest J. Mattei and Jonathan D. Hatch, for the appellee (plaintiff).
   Daly, J.

The defendant husband appeals from the trial court’s order denying his motion to dismiss or vacate the plaintiff wife’s action to enforce made pursuant to the Uniform Enforcement of Foreign Judgments Act (UEFJA), General Statutes § 52-604 et seq. We find no error.

The essential facts are not in dispute. On July 23, 1982, the parties were divorced nisi in Brookline, Massachusetts. The July 23 judgment, which became absolute on January 24, 1983, ordered, inter alia, the husband to make periodic alimony and child support payments in the amount of $600 per week. The defendant subsequently changed his residence to Connecticut.

Upon nonpayment by the defendant, the plaintiff brought a contempt action in Massachusetts. On November 28,1984, the plaintiff obtained a judgment of contempt, and arrearages were fixed at $4200. The plaintiff then filed the Massachusetts contempt order, and sought to collect the arrearage in Connecticut. General Statutes § 52-605. By decision dated October 22, 1985, the trial court, Covello, J., held that the Massachusetts contempt order was not a final nonmodifiable money judgment under Massachusetts law and, therefore, was unenforceable under the UEFJA.

Thereafter, on April 3, 1986, the plaintiff obtained an order in Massachusetts that converted the arrearages of $6800 into a final, nonmodifiable money judgment and issued an execution to enforce the order. The plaintiff instituted a second enforcement action in Connecticut on December 12, 1986. The trial court denied the defendant’s motion to vacate, ruling that the Massachusetts court’s order that execution issue on the judgment was a final judgment within the meaning of General Statutes § 52-605, and thus entitled to full faith and credit pursuant to § 52-605.

General Statutes § 52-605 permits a creditor to file a foreign judgment in Connecticut in order for it to be enforced as if the judgment was rendered in this state. A foreign judgment, as defined in § 52-604, is a “judgment, decree or order of a court of the United States or any other court which is entitled to full faith and credit in the state. . . . ” It is essential, however, that in order to be entitled to full faith and credit, the foreign judgment must be a final judgment. “The judgment rendered in one state is entitled to full faith and credit only if it is a final judgment, and the judgment is final only if it is not subject to modification in the state in which it was rendered.” Hendrix v. Hendrix, 160 Conn. 98, 104, 273 A.2d 890 (1970); see Barber v. Barber, 323 U.S. 77, 80, 65 S. Ct. 137, 89 L. Ed. 82 (1944).

We are guided by Walzer v. Walzer, 173 Conn. 62, 376 A.2d 414 (1977), in examining which judgments in the context of divorce are entitled to full faith and credit. In Walzer, the parties obtained a divorce in Idaho in 1965 and subsequently modified the judgment in New York in 1970. Upon nonpayment by the defendant, the plaintiff sought enforcement of the New York order. Our Supreme Court held that the New York order was not entitled to full faith and credit because, under New York law, the judgment was subject to modification with respect to amounts past due. The court stressed that in order to enforce the judgment, a judgment fixing the amount of the arrearage must be obtained. The effect of fixing the amount of the arrearage is that “ ‘the judgment for a liquidated sum . . . will be final and thus will be entitled to full faith and credit in all other states.' ” Id., 72.

In Massachusetts, the Probate Court has the power to modify a support order by a complaint for contempt or a complaint for modification. Pemberton v. Pemberton, 9 Mass. App. 9, 13, 411 N.E.2d 1305 (1980). Furthermore, this power to modify pertains to future payments as well as to arrearages.

In the present case, the plaintiff went to court and converted the arrearage into a final, nonmodifíable money judgment. Moreover, the plaintiff was issued an execution to enforce the order. The plaintiff, by obtaining both final orders, made the judgment impervious to modification and therefore took the necessary step in entitling her case to full faith and credit under Connecticut law. See Sawyer v. Kuhnle, 324 Mass. 53, 56, 84 N.E.2d 546 (1949); Boston v. Santosuosso, 308 Mass. 202, 211, 31 N.E.2d 572 (1941).

Accordingly, the defendant’s motion was properly denied because there was a final judgment rendered in Massachusetts.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 52-605 provides in relevant part: “(a) A judgment creditor shall file, with a certified copy of a foreign judgment, into the court in which enforcement of such judgment is sought, a certification that the judgment was not obtained by default in appearance or by confession of judgment, that it is unsatisfied in whole or in part, the amount remaining unpaid and that the enforcement of such judgment has not been stayed and setting forth the name and last-known address of the judgment debtor.
      “(b) Such foreign judgment shall be treated in the same manner as a judgment of a court of this state. A judgment so filed has the same effect and is subject to the same procedures, defenses, and proceeding for reopening, vacating or staying as a judgment of a court of this state and may be enforced in like manner.” (Emphasis added.)

       The defendant moved to “dismiss or vacate” the plaintiffs filing under the UEFJA. The trial court treated the motion as a motion to dismiss under Practice Book § 143. Because a foreign judgment filed pursuant to the UEFJA has the same effect as a judgment of a court of this state, its enforceability is properly challenged by way of proceedings which are postjudgment in nature, such as a motion to open, vacate, or stay the judgment. General Statutes § 52-605 (b).

       It was on this facet of Massachusetts law, that the original action to enforce failed.


author: Foti, J.

text:
    State of Connecticut v. Jairo Uribe
    (5090)
    Daly, Bieluch and Foti, Js.
    Argued February 17
    decision released May 10, 1988

      Mark Rademacker, for the appellant (defendant).

      Christopher Malany, deputy assistant state’s attorney, with whom, on the brief, was David P. Gold, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, after a jury trial, of possession of marihuana in violation of General Statutes § 21a-279 (c), and possession of marihuana with intent to sell in violation of General Statutes § 21a-277 (b). The defendant claims the trial court erred (1) by denying his motion to suppress evidence seized from his person, (2) by failing to set aside the conviction of possession of marihuana with intent to sell because the evidence was insufficient, (3) in its instruction to the jury on circumstantial evidence and intent, (4) in imposing sentences for both the greater and the lesser included offenses, and (5) in imposing fines on an indigent defendant. We find error as to the third and fourth claims.

The jury could reasonably have found the following facts. On the morning of October 26,1984, New Haven police officers Robert L. Coffey and Leo J. Bombalicki were on duty and assigned to the street crime unit which is primarily responsible for narcotics and robbery cases. They were in plain clothes, patrolling in a rented, unmarked car. Both officers had attended a course on narcotics taught by the department of consumer protection and both had made hundreds of previous marihuana arrests. At approximately 11:20 a.m., they were driving near the intersection of Lloyd and Woolsey Streets in the Fair Haven area of New Haven, when Bombalicki saw the defendant and another man. The defendant was smoking a handrolled cigarette which was narrower than a “Marlboro cigarette,” and holding it between his thumb and forefinger; when he inhaled the smoke, he held his breath. Coffey, who was driving, pulled the automobile to the curb and parked. Both officers then exited their car, and identified themselves to the defendant. The defendant thrust his hand, holding the lighted cigarette, into Ms jacket pocket. The police asked him to remove his hand from his pocket. He did so and the cigarette was seized. Toxicological testing later confirmed that the cigarette was marihuana. A further search of the defendant uncovered six plastic sandwich bags from an inside jacket pocket. Each bag contained brown plant-like material which contained seeds. Bombalicki believed this was marihuana and later testing confirmed that it was. The officers were aware that marihuana sold on the street was commonly packaged in either small manila envelopes or in small plastic bags, known as “nickel bags,” and each sold for $5. The officers knew that larger quantities of marihuana packaged in the same sort of bags, called “dime” or “quarter” bags could be purchased on the street for $10 and $25 respectively. Also found on the defendant’s person was a package of “EZ Wider” rolling papers. This type of paper was commonly used to make marihuana “joints” which could be sold individually for $1. From the defendant’s right rear pocket, a sum of $145 in bills was confiscated, consisting of one $20 bill, six $10 bills and tMrteen $5 bills. In another pocket the defendant had eighteen $1 bills.

I

The defendant contends that the trial court should have granted his motion to suppress because the arrest was not supported by probable cause. General Statutes § 54-If (b) authorizes a police officer to arrest any person who he has reasonable grounds to believe has committed or is committing a felony. Reasonable grounds is equated with probable cause; State v. Dennis, 189 Conn. 429, 431, 456 A.2d 333 (1983). Although it is unlikely that Connecticut would employ the Gates standard; see Illinois v. Gates, 462 U.S. 213, 231, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); on a challenge to probable cause, particularly if that challenge is made under the state constitution, it is our view in this warrantless arrest and search matter that the trial court was correct under either the Gates “totality-of-the-circumstances” analysis or the Aguilar-Spinelli two-prong test. See State v. Kimbro, 197 Conn. 219, 222-36, 496 A.2d 498 (1985).

“Probable cause exists if (1) there is probable cause to believe a crime has been committed and (2) there is probable cause to believe that the person to be arrested committed the crime. State v. Heinz, 193 Conn. 612, 616-17, 480 A.2d 452 (1984); State v. Daley, 189 Conn. 717, 720, 458 A.2d 1147 (1983). As its name implies, probable cause deals with probabilities, which are not technical, but are ‘ “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” ’ Illinois v. Gates, [supra], quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879, reh. denied, 338 U.S. 839, 70 S. Ct. 31, 94 L. Ed. 513 (1949).” State v. Williamson, 10 Conn. App. 532, 545, 524 A.2d 655 (1987).

We are convinced that the several pieces of information known to the police at the time of the defendant’s arrest combined to meet the required standard. See State v. Perry, 195 Conn. 505, 509, 488 A.2d 1256 (1985). In this case, the defendant was observed near an intersection that was notorious for marihuana sales. He was observed by a trained narcotics investigator to be in possession of a handrolled cigarette, resembling a marihuana “joint,” held in a particular fashion between the thumb and forefinger, coupled with the act of holding his breath after inhaling in the distinctive manner of a marihuana user, created a reasonable suspicion of criminal conduct. This, combined with the defendant’s act of putting a burning cigarette in his pocket, was most unusual and, under the totality of the circumstances, gave the officers probable cause to arrest the defendant.

The defendant argues that his act of putting a lighted cigarette in his pocket was induced by “illegal” police conduct. We cannot agree. The officers did nothing more than stop their car, display their badges and identify themselves as police officers. That conduct did not induce the defendant to put a lighted cigarette in his pocket. The police, therefore, had probable cause to believe that defendant had committed a crime, possession of marihuana. This justified the defendant’s arrest and subsequent search incident to that lawful arrest. State v. Carey, 13 Conn. App. 69, 75, 534 A.2d 1234 (1987).

II

The defendant next claims that the trial court erred in failing to set aside the conviction on the second count, possession of marihuana with intent to sell, because the evidence was insufficient to establish that charge beyond a reasonable doubt. In reviewing such a claim, we consider the evidence with a view toward sustaining the verdict of the jury. State v. Scielzo, 190 Conn. 191, 196, 460 A.2d 951 (1983). There is a two-fold test for determining the sufficiency of the evidence to justify a conviction. First, we view all the evidence in the light most favorable to the verdict; then we determine whether, from that evidence and all the reasonable inferences which it yields, a jury could reasonably have concluded that the defendant was guilty beyond a reasonable doubt. State v. Napoleon, 12 Conn. App. 274, 283, 530 A.2d 634, cert. denied, 205 Conn. 809, 532 A.2d 78 (1987); State v. Parent, 8 Conn. App. 469, 472-73, 513 A.2d 725 (1986); State v. DiStefano, 7 Conn. App. 726, 731, 510 A.2d 995 (1986).

In his challenge to the sufficiency of the evidence, the defendant claims that the state has not proven intent, a necessary element of the crime, beyond a reasonable doubt. “Proof of a defendant’s intent generally takes the form of circumstantial evidence, from which the jury is free to draw such inferences which are logical and reasonable. See State v. Whelan, 200 Conn. 743, 757, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986); State v. Rodgers, 198 Conn. 53, 57, 502 A.2d 360 (1985).” State v. Napoleon, supra, 284.

From the evidence presented at trial, we hold that the jury’s finding of the defendant’s intent to sell marihuana was reasonable and logical. It is admitted by the state that the quantity of marihuana seized was modest and, therefore, it was not possible to infer an intent to sell solely upon the fact of possession. The relatively small amount did not, however, preclude a finding that the defendant intended to sell the marihuana. The area where the defendant was standing was one noted for marihuana sale. The marihuana was packaged in a manner consistent with its being sold, and the jury could have also concluded that six bags of marihuana was a large amount for a single consumer. The defendant also possessed a packet of rolling papers, an item which could be associated with marihuana sales. There was evidence that marihuana cigarettes were commonly sold for $1 each. The defendant also possessed a quantity of cash in denominations which could reasonably lead a jury to conclude that the defendant intended to sell marihuana. While not overwhelming, there was sufficient cumulative evidence of the defendant’s intent to sell marihuana to support the jury’s verdict. It is “ ‘[t]he cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.’ State v. Perez, [183 Conn. 225, 227, 439 A.2d 305 (1981)] . . . .” State v. Sinclair, 197 Conn. 574, 576-77, 500 A.2d 539 (1985).

Ill

The defendant’s third claim is that the court erred in its instruction on inference which the jury could draw from circumstantial evidence.

The trial court charged the jury on the rule of circumstantial evidence as follows: “This rule involves the offering of evidence or facts from which you are asked to infer the existence of another fact or a set of facts. Such an inference may be made provided two elements in the application of this rule are satisfied. One, that the fact from which you are asked to draw the inference has itself been proven beyond a reasonable doubt and, secondly, that the inference asked to be drawn is not only logical and reasonable, but is strong enough so that you can find that it is more probable than not that the fact to be inferred is true.”

The defendant claims, and the state concedes, that this instruction was harmful error because it was likely to confuse and mislead the jury regarding the state’s burden of proving the element of intent beyond a reasonable doubt. We agree.

Our Supreme Court has recently concluded: “ ‘Where the principal factual issue at trial is intent, which is typically proven by circumstantial evidence, “we will closely scrutinize the court’s instructions” on circumstantial evidence, in isolation from the remainder of the charge, to determine whether the court misled the jury as to the state’s burden of proof.’ State v. Robinson, 204 Conn. 207, 210, 527 A.2d 694 (1987).” State v. McDonough, 205 Conn. 352, 358, 533 A.2d 857 (1987).

At trial, the state presented evidence that the defendant was in possession of marihuana which was packaged in a manner consistent with sale, and that he possessed a substantial amount of money in denominations consistent with selling marihuana. The primary issue in this case was whether the defendant possessed with intent to sell or whether he was merely in possession.

In the context of this case, intent was an essential element of the state’s burden of proof. State v. McDonough, supra, 355-56. The court’s instruction that the jury need find only that it is “more probable than not that the fact to be inferred is true” sufficiently diluted the state’s burden of proof beyond a reasonable doubt to constitute reversible error. State v. Whelan, 200 Conn. 743, 756-58, 513 A.2d 86 (1986); see also State v. Gonzalez, 206 Conn. 213, 228, 537 A.2d 460 (1988).

IV

The defendant claims that his convictions of possession of marihuana with intent to sell and simple possession of marihuana violated the federal and state prohibitions against double jeopardy. The state has expressly conceded that the defendant’s claim of double jeopardy violations is correct. In view of our decision in State v. Napoleon, supra, which was released concurrently with State v. Williams, 12 Conn. App. 225, 530 A.2d 627 (1987), we need not restate here the application of double jeopardy principles to the crimes of possession of marihuana with intent to sell and possession of marihuana. Therefore, the defendant’s conviction and sentence for possession of marihuana must be set aside.

V

In view of our conclusion that the court committed error on issues three and four, the defendant’s final claim that the imposition of a fine as part of his sentence offends basic notions of fairness is rendered academic. We will not decide academic questions. State v. Mention, 12 Conn. App. 258, 262, 530 A.2d 645 (1987).

There is error, the judgment is set aside as to both counts and the case is remanded for a new trial on the charge of possession of marihuana with intent to sell in violation of General Statutes § 21a-277 (b).

In this opinion the other judges concurred.

        Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637(1969).


text:
    Katz Realty, Inc. v. Norwalk Fabricators, Inc. et al.
    (5895)
    Borden, Stoughton and Foti, Js.

      Argued March 2
    decision released May 10, 1988

      Robert A. Slavitt, for the appellant (named defendant).

      Lawrence D. Church, for the appellee (plaintiff).

      M. Jeffrey Spahr, for the appellees (defendant city of Norwalk et al.).
   Foti, J.

This is an appeal by the named defendant, Norwalk Fabricators, Inc., from a judgment rendered in favor of the plaintiff in a suit commenced to recover a real estate commission. The action was heard by an attorney trial referee. The defendant filed an objection to the acceptance of the referee’s report by the trial court. An amended objection was subsequently filed which the trial court treated as a motion to correct. The referee declined to amend his report. The court accepted the referee’s report and rendered judgment for the plaintiff. The defendant claims that the trial court erred (1) in rendering judgment on grounds that were not pleaded, (2) in accepting the referee’s report which contained facts which were inconsistent with the conclusions drawn, and (3) in accepting the referee’s report which the defendant alleges erroneously found a valid contract to exist. We find no error.

The following facts are relevant for this appeal. The plaintiff entered into a written listing agreement with the defendant on January 26, 1979, to negotiate the sale of certain real estate owned by the defendant. Pursuant to the listing agreement, the plaintiff secured buyers for the property. These buyers were the defendant city of Norwalk (city) and the defendant Norwalk Redevelopment Agency (redevelopment agency). The defendant subsequently entered into a land sale contract with the redevelopment agency and in that contract shifted responsibility for payment of any commission owed from itself to the redevelopment agency. The broker’s commission for the sale was $11,500. The defendant’s answer to the complaint admitted all of the allegations in the complaint with the exception of one paragraph which was merely an arithmetical calculation of the commission due the plaintiff. The defendant admitted that the commission was due the plaintiff and that it had not been paid. By its cross complaint, the defendant alleged that the redevelopment agency was liable for the commission due. The referee found that the defendant’s pleadings constituted a judicial admission of liability, conclusive on the pleader, and proceeded to the issue of whether the obligation to pay the broker’s commission should be shifted to the redevelopment agency or paid by the defendant. The referee found that the redevelopment agency had relied on a representation made by the defendant in the contract for sale which stated that no broker or agent had any exclusive sale or exclusive agency listing for the sale of the premises. The referee concluded that the defendant was equitably estopped from claiming that the redevelopment agency was liable for the commission.

In accepting the trial referee’s report the court rendered judgment in favor of the plaintiff on its complaint against the named defendant. The court also found in favor of the defendant city and the defendant redevelopment agency on the cross complaint brought by the named defendant.

The defendant claims that the trial court erred in concluding that an exclusive listing agreement controlled when the plaintiff had not pleaded or sought relief on this theory. There is no basis for this claim by the defendant, as the record clearly supports the referee’s conclusion that the plaintiff and the defendant had entered into a listing agreement and that the plaintiff had secured a buyer ready, willing and able to buy, which in fact purchased the property in accordance with the terms established by the seller. Since the defendant admitted liability by its answer, this constituted a judicial admission which the defendant cannot now deny. Rodearmel v. Rodearmel, 173 Conn. 273, 275, 377 A.2d 260 (1977). The referee’s conclusion that the plaintiff had earned its commission was based on its factual determination that the plaintiff had procured a purchaser on terms acceptable to the owner. “[A] broker who has, in accordance with a listing contract, found a purchaser ready, willing and able to purchase, on the owner’s own terms, is entitled to its commission . . . .” (Citations omitted.) Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 242, 440 A.2d 306 (1982). Because the trial referee acted within the framework of the claims set out in the plaintiffs complaint and admitted by the defendant’s answer, the referee acted properly and within jurisdictional limits.

The defendant next contends that the findings of fact made by the referee and accepted by the trial court are inconsistent with the conclusion that the redevelopment agency is not liable for the commission. The defendant concedes that judgment in favor of the plaintiff should be sustained, but contends that recovery should be against the city.

A trier of fact has broad discretion and the exercise of that discretion will be upheld unless there exists manifest abuse or it will result in an injustice. Maresca v. Allen, 181 Conn. 521, 522, 436 A.2d 14 (1980). The referee found that the representation made by the defendant in paragraph fifteen of the purchase agreement that no broker or agent had an exclusive listing on the premises was manifestly incorrect. Whether the city knew or might have known that there was a possible claim by a broker, or that it knew that the property was being shown by the plaintiff, is not inconsistent with the conclusion that the defendant was equitably estopped from shifting liability for the commission to the city. “[T]here are two elements which must be established in order to find an estoppel: one party must do or say something that is intended or calculated to induce another into believing in the existence of certain facts and to act upon that belief and the other party must thereby actually change his position or do some act to his injury which he would otherwise not have done.” John F. Epina Realty, Inc. v. Space Realty, Inc., 194 Conn. 71, 85, 480 A.2d 499 (1984). The referee found that the defendant had made an express representation that there was no broker’s agreement for the subject property and that this representation was made for the purpose of inducing the city to act in reliance thereon. An appellate court cannot find facts or draw conclusions from primary facts found, but may only review such findings to see whether they might be legally, logically and reasonably found. Maebry v. McNeil, 13 Conn. App. 167, 169, 534 A.2d 1256 (1988). We cannot conclude that the trier acted illegally in reaching the factual conclusions it reached from the evidence presented.

Finally, the defendant claims that the referee erred in finding that a valid contract existed. The defendant contends that there had been no meeting of the minds regarding an essential element because the parties continued to negotiate as to whether certain cranes would be part of the sale. The referee treated the issue of the cranes as insignificant. The defendant argues that this was a material term of the contract which remained outstanding at the time that the listing agreement expired. Although the trial referee was apparently aware of the negotiations among the parties concerning the cranes, as evidenced by the various exhibits attached to his report, there is no mention of those negotiations in his report. The defendant did not move for correction to include such a finding. Accordingly, the defendant has not met its burden of providing an adequate record for this court to find that the trial court committed error. Pisch v. Pisch, 7 Conn. App. 720, 722, 510 A.2d 455 (1986); Keppel v. BaRoss Builders, Inc., 7 Conn. App. 435, 438, 509 A.2d 51, cert. denied, 201 Conn. 803, 513 A.2d 698 (1986). We, therefore, decline to review this claim.

There is no error.

In this opinion the other judges concurred.

       For purposes of this opinion, the named defendant will be referred to as the defendant. The city of Norwalk and the Norwalk Redevelopment Agency were also defendants in this action.

       The defendant city of Norwalk and the defendant Norwalk Redevelopment Agency agreed that they would be treated as a single entity for purposes of this issue.

       Paragraph eleven of the trial referee’s report states: “The seller’s representation to the purchaser, as per paragraph fifteen of the contract, that no broker or agent has any exclusive sale or exclusive agency listing on the premises is, perhaps technically correct in that, at the time of the contract there was no such exclusive; but, it was manifestly incorrect in that there had been an exclusive with the commission due pursuant to that exclusive not payable until the sale of the property was consummated.”

       Paragraph fifteen of the purchase agreement provides: “The Seller represents to the Purchaser that no broker or agent has any exclusive sale or exclusive agency listing on the premises. The Purchaser (jointly and severally, if more than one) hereby agrees to indemnify and hold harmless the Seller against the claim of any broker or agent for a commission due by reason of the sale, where it is alleged that said broker or agent called the premises to the Purchaser’s attention as interested the Purchaser therein, said indemnity to include all costs of defending any such claim, including reasonable attorney’s fees. This indemnification and representation shall survive the delivery of the deed of conveyance.”