author: Landau, J.

text:
    Zoning Board of Appeals of the Town of Wallingford et al. v. Planning and Zoning Commission of the Town of Wallingford
    (9738)
    Daly, Lavery and Landau, Js.
    Argued December 11, 1991
    decision released April 7, 1992

      Priscilla C. Mulvaney, with whom was John K. Knott, Jr., for the appellant (named defendant).

      Vincent T. McManus, Jr., for the appellees (plaintiffs).
   Landau, J.

The named defendant, the Wallingford planning and zoning commission (commission), appeals from the judgment of the trial court sustaining the appeal of, inter alios, the named plaintiff, the Walling-ford zoning board of appeals (board), and declaring invalid and unlawful an amendment to § 9.1.H.2 of the town of Wallingford zoning regulations. On appeal to this court, the commission claims that (1) the board was without standing to challenge the amendment because it was not an aggrieved party, (2) the trial court ignored relevant precedent in concluding that the amendment improperly eliminated the authority of the board to grant use variances, and (3) the trial court improperly substituted its judgment for that of the commission. We affirm the judgment of the trial court.

The following facts are undisputed. On September 11, 1989, the commission, pursuant to General Statutes § 8-6 (3), amended § 9.1.H.2 of the Wallingford zoning regulations to restrict the board’s power to grant use variances within the town. The board appealed that decision to the Superior Court, pursuant to General Statutes § 8-8. On March 12, 1990, the commission further amended the regulation at issue, thereby rendering the appeal moot. The board then appealed to the Superior Court from the adoption of the second amendment.

The trial court found that the effect of the amendment was to preclude the board from granting use variances in specific zones unless the failure to grant the variance would amount to an unconstitutional taking of property without just compensation. The trial court further found that (1) the board had standing to take the appeal because it was statutorily aggrieved and aggrieved in a public sense, and (2) the amendment was a wholesale destruction of the board’s right to grant use variances. The trial court concluded that, in enacting the amendment, the commission acted beyond its power and, thus, it sustained the board’s appeal and declared the amendment to be invalid and unlawful.

I

The commission first claims that the board lacked standing to challenge the amendment to § 9.1.H.2 of the regulations because it was not aggrieved. We agree with the trial court’s conclusion, but for a different reason. In its memorandum of decision, the trial court adopted the memorandum of decision in Board of Zoning Appeals v. Planning & Zoning Commission, Superior Court in the judicial district of New Haven, Docket No. 195250 (January 29, 1982), in which the court, Joseph W. Bogdanski, state trial referee, concluded that the plaintiff had been both statutorily aggrieved and aggrieved in a public sense because it was the proper party to protect the public interest. We conclude that the board in this case was classically aggrieved.

The issue of standing implicates this court’s subject matter jurisdiction. Middletown v. Hartford Electric Light Co., 192 Conn. 591, 595, 473 A.2d 787 (1984). “The ‘fundamental aspect of standing ... [is that] it focuses on the party seeking to get his complaint before [the] court and not on the issues he wishes to have adjudicated.’ Flast v. Cohen, 392 U.S. 83, 99, 88 S. Ct. 1942, 20 L. Ed. 2d 947 [1968].” (Emphasis added.) Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478, 485, 338 A.2d 497 (1973). We acknowledge that a justiciable controversy exists in this case, but address the question of whether the plaintiff suffered the requisite aggrievement.

The jurisdictional requirement of aggrievement serves both practical and functional purposes in assuring that only those parties with genuine and legitimate interests are afforded an opportunity to appeal. Mer-rimac Associates, Inc. v. DiSesa, 180 Conn. 511, 516, 429 A.2d 967 (1980). Aggrievement falls within two broad categories, classical and statutory. The factors involved in whether classical aggrievement exists are tempered by the subject matter of the litigation. A party has been classically aggrieved if it successfully demonstrates a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as the concern of all members of the community as a whole, and successfully establishes that this specific, personal and legal interest has been specially and injuriously affected by the decision. Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47, 478 A.2d 601 (1984); Hall v. Planning Commission, 181 Conn. 442, 444, 435 A.2d 975 (1980); Walls v. Planning & Zoning Commission, 176 Conn. 475, 477-78, 408 A.2d 252 (1979); see Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 491-93, 400 A.2d 726 (1978). Statutory aggrievement exists by legislative fiat, which grants appellants standing by virtue of a particular legislation, rather than by judicial analysis of the particular facts of the case. Weill v. Lieberman, 195 Conn. 123, 124-25, 486 A.2d 634 (1985); Pierce v. Zoning Board of Appeals, 7 Conn. App. 632, 635-36, 509 A.2d 1085 (1986); see Buchholz’s Appeal from Probate, 9 Conn. App. 413, 415, 519 A.2d 615 (1987).

The burden of demonstrating aggrievement rests with the plaintiff. Hickey v. New London, 153 Conn. 35, 37, 213 A.2d 308 (1965). The question of aggrievement is one of fact to be determined by the trial court. Glendenning v. Conservation Commission, 12 Conn. App. 47, 50, 529 A.2d 727, cert. denied, 205 Conn. 802, 531 A.2d 936 (1987). We will reverse the trial court only if its conclusions are clearly erroneous and violate law, logic, or reason or are inconsistent with the subordinate facts. Mystic Marinelife Aquarium, Inc. v. Gill, supra.

In this case, statutory aggrievement is conferred on “any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.” General Statutes § 8-8 (a) (1). Thus, pursuant to § 8-8 (a) (1), a person may derive standing to appeal based solely on his status as an abutting landowner or as a landowner within one hundred feet of the subject property. Nick v. Planning & Zoning Commission, 6 Conn. App. 110, 112, 503 A.2d 620 (1986). The statute requires only that there be land affected by the decision of the zoning authority, and that the party seeking to appeal owns property abutting that land. Id., 113.

Here, there is no particular piece of property affected by the decision nor does the plaintiff own any property that abuts or is within a radius of one hundred feet of any portion of the land involved. Thus, the plaintiff cannot rely on General Statutes § 8-8 (a) (1) to claim aggrievement. Moreover, it is irrelevant that one member of the board owns land in a statutory zone of aggrievement, because it is the board as a separate entity that is claiming aggrievement, not the members of the board in their individual capacity. See Munhall v. Inland Wetlands Commission, 221 Conn. 46, 51, 602 A.2d 566 (1992). Nick v. Planning & Zoning Commission, supra, clearly states that the party seeking to appeal must own the property abutting the land. The party seeking to appeal here is the board. The board owns no land, and thus does not fall within the scope of § 8-8 (a) (1). We conclude that the board was not statutorily aggrieved.

Because aggrievement includes persons who are not aggrieved by virtue of their status as abutting landowners or landowners within one hundred feet; Tazza v. Planning & Zoning Commission, 164 Conn. 187, 190, 319 A.2d 393 (1972); the persons interested in the subject matter of the board’s complaint are not limited to those who are statutorily aggrieved. Pierce v. Zoning Board of Appeals, supra, 636-37. Those individuals who have an interest in the subject matter and have been classically aggrieved still have standing to challenge the amendment.

The board has been classically aggrieved. The board has a specific, personal and legal interest in the subject matter of the commission’s amendment—the right to grant use variances within the town. Moreover, this specific, personal and legal interest was specially and injuriously affected by the decision. See Hall v. Planning Commission, supra; Walls v. Planning & Zoning Commission, supra. General Statutes § 8-6 (3) confers on the board the power and duty to “determine and vary the application of the zoning bylaws” and confers on the commission the right to “specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed.” General Statutes § 8-6 “grants broad powers to the zoning board of appeals and limits those powers only when the zoning commission passes a regulation explicitly limiting the issuance of variances.” (Emphasis added.) Stillman v. Zoning Board of Appeals, 25 Conn. App. 631, 634-35, 596 A.2d 1, cert. denied, 220 Conn. 923, 598 A.2d 365 (1991). The commission has not been vested with either the authority wholly to eliminate the board or the authority to change the standard on which the board may grant use variances.

As a result of the commission’s amendment, the board was wholly deprived of its statutorily guaranteed right to grant use variances where a literal enforcement of the regulations would result in exceptional difficulty or unusual hardship. See General Statutes § 8-6 (3). Under the terms of the amendment, the board would be authorized to grant requested use variances only where failure to do so would “constitute an unconstitutional taking of the property without compensation as such taking as defined by the laws of the State of Connecticut and the United States.” Zoning regulations of the town of Wallingford § 9.1.H.2 (c), as amended. Clearly the board has a personal, specific and legal interest in the subject matter of its own jurisdiction to act. The legislation granting in one agency the power to limit the jurisdiction of another created a classical aggrievement situation when the agency that was subjected to the limitations finds its jurisdiction subject to a complete and wholesale destruction. We conclude that the plaintiff was classically aggrieved, and, thus, had proper standing to challenge the present amendment.

II

The commission’s second claim is that the trial court ignored relevant precedent in concluding that the commission had acted beyond its statutory power and in concluding that the amendment was invalid and unlawful. Specifically, the commission argues that the reasoning underlying the trial court’s conclusion was impliedly overruled in Beacon Falls v. Posick, 212 Conn. 570, 563 A.2d 285 (1989), and Lizotte v. Conservation Commission, 216 Conn. 320, 579 A.2d 1044 (1990). The commission argues that these cases held that the right to regulate includes the right to prohibit, and, thus, that the commission did not act beyond its statutory power in eliminating the board’s right to grant use variances where exceptional difficulty or unusual hardship would result. We disagree with the commission.

Although the Supreme Court has stated that “ ‘the power to regulate . . . does not necessarily imply the power to prohibit absolutely any business or trade’ (emphasis added); Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 20, 523 A.2d 467 (1987); this does not preclude the power of prohibition. Cf. Yaworski v. Canterbury, 21 Conn. Sup. 347, 350, 154 A.2d 758 (1959).” Beacon Falls v. Posick, supra, 582. Beacon Falls resolves the conflict regarding when the power to regulate includes the power to prohibit. Under the rationale of Beacon Falls, when a statute authorizes a municipality to regulate a certain activity, a prohibition of that activity will be valid only if the prohibition is rationally related to the protection of the community’s public health, safety and general welfare. Beacon Falls v. Posick, supra, 583; see also Lizotte v. Conservation Commission, supra, 334; Cadoux v. Planning & Zoning Commission, 162 Conn. 425, 428-29, 294 A.2d 582, cert. denied, 408 U.S. 924, 92 S. Ct. 2496, 33 L. Ed. 2d 335 (1972).

Here, the record amply reveals the purpose for enacting the amendment. The commission enacted the legislation in an effort to curtail what it concluded was the overly generous policy of the board in granting use variances. The rationale supporting the extension of the authority to regulate to include the authority to prohibit in Beacon Falls and Lizotte does not exist in the present case. Our review of the record reveals no mention of any concerns regarding public health, safety or general welfare. The commission did not allege that the amendment was enacted for the protection of the community’s public health, safety and general welfare. The trial court, thus, properly did not consider Beacon Falls and Lizotte.

Ill

The commission’s final claim is that the trial court improperly substituted its judgment for that of the commission when it relied exclusively on the testimony of the Wallingford town planner in ascertaining the commission’s reasons for enacting the amendment to § 9.1.H.2. We disagree.

It is well established that where a zoning commission has formally stated the reasons for its decision, the court should not go beyond that official collective statement of the commission. DeMaria v. Planning & Zoning Commission, 159 Conn. 534, 541, 271 A.2d 105 (1970). In support of its conclusion that the amendment to § 9.1.H.2 was a wholesale destruction of the board’s right to grant use variances, the trial court quoted the testimony of Linda Bush, Wallingford town planner. We conclude, that in quoting the testimony of the town planner in its memorandum of decision the trial court did not go “beyond that official collective statement of the commission.” Id. The quoted remark relied on by the trial court was representative of the intent of the commission. There was no indication that this was the sole testimony that the trial court considered in arriving at its conclusion.

Merely referring to one piece of testimony does not indicate that the trial court ignored all other evidence. The reference to this testimony was no more than an attempt to demonstrate the intended effect in adopting the amendment. The testimony was representative of all of the evidence pertaining to the commission’s reasons for enacting the amendment. The intent of the commission in enacting the amendment permeates the entire record. The commission amended the regulations because it believed that the board, in liberally granting use variances, violated their statutory regulatory authority as set forth in General Statutes § 8-6. Because Bush’s statement was representative of the entire record, we conclude that the trial court did not improperly rely on her testimony to the exclusion of all other testimony and did not substitute its judgment for that of the commission.

The judgment is affirmed.

In this opinion the other judges concurred.

       The remaining defendants include Pasquale Piscatelli, chairman of the planning and zoning commission and Richard Fitzsimmons, secretary of the planning and zoning commission. The remaining plaintiffs are property owners who claimed to have been affected by the commission’s actions.

       General Statutes § 8-6 provides in relevant part: “The zoning board of appeals shall have the following powers and duties ... (3) to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed. . . .” (Emphasis added.)

       General Statutes § 8-8 (b) provides in relevant part: “[A]ny person aggrieved by any decision of a board may take an appeal to the superior court for the judicial district in which the municipality is located. ...”

       The amended version of § 9.1.H.2 (c) of the Wallingford zoning regulations provides: “Notwithstanding the provisions in the preceding, the Zoning Board of Appeals may grant a use variance in any zone upon a showing by the applicant that he cannot reasonably use his property for any of the uses permitted in the zone in which his property is located and that denial of a variance under such circumstances would constitute an unconstitutional taking of the property without compensation as such taking is defined by the laws of the State of Connecticut and the United States.”

       Bush testified as follows: “It will probably be a much more rapid decision only because you are not going to be able to prove a constitutional taking of property. It is highly unlikely in Wallingford that anyone could ever prove. That is very difficult to prove. So that, we would almost guarantee ourselves that, if we did, if they grant a use variance and use that loophole, and we appealed, they would lose. Because it is going to be impossible to prove a constitutional taking.

       See footnote 2, supra.


source: Caselaw Access Project

license: Public Domain

text:
    State of Connecticut v. Teofilo Rodriguez
    (10094)
    O’Connell, Landau and Freedman, Js.
    Argued January 22
    decision released April 7, 1992

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Devin T. Stillson, assistant state’s attorney, and, on the brief, Walter D. Flanagan, state’s attorney, for the appellant (state).

      Peter N. Buzaid, for the appellee (defendant).
   Landau, J.

The state of Connecticut appeals, with the permission of the trial court, from the court’s judgment granting the defendant’s motion to suppress evidence and its judgment dismissing the charge of illegal possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-278 (b). The state claims that the trial court incorrectly ruled that the affidavit in support of a search warrant authorizing searches of the defendant’s house, his business and his person failed to establish probable cause. The state also argues that, viewed together, the four tips supplied by three confidential informants established a “fair probability” that evidence of drug trafficking would be found in the defendant’s house and business and on his person.

The defendant claims that the affidavit failed to establish probable cause in the following ways: (1) it contained no factual basis as to the manner in which the three confidential informants acquired their knowledge of the narcotic trafficking and the defendant’s involvement with this activity; (2) it did not establish the veracity of the confidential informants; and (3) it failed to meet the standard for probable cause as set forth in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). We agree with the state and reverse the judgment of the trial court.

The record discloses the following pertinent facts. On June 19,1990, Detectives James Fisher and Daniel Trompetta of the Danbury police department obtained three search warrants authorizing searches of the defendant’s residence at 50 Westville Avenue, Dan-bury, as well as his business, Nova Importing, and his person. The same affidavit was used to support each of the three warrant applications. The affidavit consisted of six substantive paragraphs that outlined information related to the Danbury police by three confidential informants over a period of three months.

Paragraph one addressed the background of the two affiants, Fisher and Trompetta, stating that they were both regular members of the Danbury police department with combined experience of more than fifteen years. It further stated that both detectives are members of the special investigations division, the primary function of which is to investigate drug activity in the Danbury area, and that both detectives have participated in numerous drug investigations that have led to arrests and convictions.

The second paragraph stated that in the first week of April, 1990, the detectives met with a confidential informant, A, whom they had known “a short period of time” but who had previously provided information proven to be true and accurate upon independent investigation. A informed them that a Dominican male named Teofilo Rodriguez and his wife, Lauretta, were selling cocaine in Danbury from two locations: a store called Nova Importing, at 130 West Street, which the informant stated was owned and operated by the defendant and his wife; and the defendant’s residence at 50 Westville Avenue in Danbury. A also stated that a person named Gilberto Genao worked for the defendant, that some sales were made at Nova Importing, and that the drug deliveries from New York were made to the residence. A also indicated that the drugs were stored at the residence. The affidavit did not indicate the basis of A’s knowledge of the defendant’s narcotics activity.

The third paragraph of the affidavit indicated that during the third week of April, 1990, a similar tip was received from a second confidential informant, B, whom the detectives had known for over two years and who had previously provided information proven to be accurate and which had led to two seizures of narcotics and three felony arrests. B stated that the defendant was selling large quantities of cocaine in the Danbury area and that his wife played an active part in this operation and was totally familiar with most aspects of the drug selling operation. B further stated that the cocaine is delivered to the defendant’s residence and then is moved, as needed for sales, to Nova Importing where the sales are conducted. B also indicated that two other Dominican males, Gilberto Genao and the defendant’s nephew Carlos Espinal, worked for the defendant by picking up the cocaine in New York City and bringing it to Danbury and making sales and contacts with buyers for the defendant. The affidavit also did not disclose the basis of knowledge for B’s tip.

The fourth paragraph of the affidavit indicated that during the third week of May, 1990, the detectives met with a third confidential informant, C, who had been known to them for over ten months and who had provided information that had led to three seizures of narcotics and one felony arrest. C stated that Genao was working with the defendant selling cocaine. He further stated that he had personal knowledge of cocaine sales from Nova Importing, had personally observed cocaine in the store and had overheard numerous conversations concerning drug dealings at the store, although no basis of knowledge was indicated in the affidavit.

Paragraph five indicated that during the third week of May, 1990, C made a controlled buy of a package of cocaine at Nova Importing under the supervision of members of the Danbury police department. The affidavit indicated that prior to entering the store the police thoroughly searched C for money and drugs and found none. C was then given a predetermined sum of money and was observed entering the store and being directed to an office near the rear of the store. He remained in the store for between two and three minutes and was then observed leaving the store and traveling to a prearranged location to meet with Trom-petta. C gave the detective a packet containing a white powder substance that field-tested positive for cocaine, and told the detective that he had purchased the cocaine from Genao.

Paragraph six indicates that early in the third week of June, 1990, C informed the detectives that he had personally observed cocaine that was to be sold in the defendant’s residence and that it was under the defendant’s control. No time or date was indicated.

On June 19, 1990, search warrants were issued authorizing the police to conduct searches of the defendant’s house, his business and his person. Evidence of narcotics trafficking, including plastic and paper packets containing white powder, drug sale records and drug paraphernalia, was seized from the defendant’s house and the defendant was placed under arrest. The defendant moved to suppress the evidence and, after a hearing, the trial court found that the affidavit supporting the warrants failed to establish probable cause as defined by state and federal law. Specifically, the trial court found that probable cause was lacking because the affidavit did not include the informants’ basis of knowledge; C did not provide dates of the sales or conversations he overheard; the detectives did not keep C under constant surveillance during the controlled buy; and B did not state when he observed cocaine at the defendant’s residence. Additionally, the trial court found that the affidavit did not sufficiently incriminate the defendant, as opposed to Genao, and the detectives did not corroborate that Nova Importing and 50 Westville Avenue were the defendant’s business and his home address respectively. We disagree with the trial court and conclude that under the totality of the circumstances test enunciated in Illinois v. Gates, 462 U.S. 213,103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); and subsequently adopted by our state in State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991); there was sufficient probable cause to issue the search warrants.

The fourth amendment “protects people from unreasonable government intrusions into their legitimate expectation of privacy.” United States v. Chadwick, 433 U.S. 1, 7, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977). The latter part of the fourth amendment, customarily referred to as the warrant clause, makes it apparent that a valid arrest warrant or search warrant may issue only upon a showing to the magistrate that there is probable cause for the arrest or for the search. Henry v. United States, 361 U.S. 98, 80 S. Ct. 168, 4 L. Ed. 2d 124 (1959) (arrest); United States v. Harris, 403 U.S. 573, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971) (search).

A warrant may be issued to search any property “at which there is probable cause to believe that fruits, instrumentalities, or evidence of a crime will be found.” Zurcher v. Stamford Daily, 436 U.S. 547, 554, 98 S. Ct. 1970, 56 L. Ed. 2d 525 (1978). Two conditions necessary for a search warrant to issue are (1) that there is probable cause to believe a crime has been committed and that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction, and (2) that there is probable cause to believe that the items sought to be seized will be found in the place to be searched. United States v. Harris, supra, 584; State v. Weinberg, 215 Conn. 231, 238, 575 A.2d 1003, cert. denied, U.S. , 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990); State v. Morrill, 205 Conn. 560, 565, 534 A.2d 1165 (1987); State v. DeChamplain, 179 Conn. 522, 528-29, 427 A.2d 1338 (1980); State v. Dixon, 25 Conn. App. 3, 11, 592 A.2d 406 (1991).

The conclusion concerns the connection between the items sought and the crime committed and the present location of the items sought. State v. Heinz, 193 Conn. 612, 616-17, 480 A.2d 452 (1984). The nexus between the items sought and the place to be searched may be inferred from the type of crime, the nature of the evidence, the extent of an opportunity for concealment and normal inferences as to where a criminal would likely hide the item. State v. Couture, 194 Conn. 530, 537, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985); State v. Vallas, 16 Conn. App. 245, 261-62, 547 A.2d 903 (1988), aff'd, 212 Conn. 485, 563 A.2d 660 (1989). The quantum of certainty required is a “fair probability” that the search will yield the article specified. State v. Barton, supra, 552; State v. Ralston, 7 Conn. App. 660, 682, 510 A.2d 1346 (1986).

Under Illinois v. Gates, supra, probable cause for a search warrant is established if the “totality of the circumstances” indicate a probability of criminal activity. Id., 230-32. Probable cause is a fluid concept-turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules. Id. Rather than resembling a “piece of precast concrete” probable cause “is a‘mosaic’. . . which is established by fitting pieces of information together . . . .” (Citation omitted.) State v. Ralston, supra.

Federal and state courts have long required that when an affidavit reports information received from a confidential informant the magistrate must make an independent evaluation of the informant’s credibility. State v. Barton, supra, 542. As an aid to the magistrate in making this determination, the United States Supreme Court has travelled a meandering road, first stopping at the two-pronged Aguilar-Spinelli test and erecting a “ ‘complex superstructure of evidentiary and analytical rules’ ” leading to excessively rigid appellate review; State v. Barton, supra, 534, quoting Illinois v. Gates, supra; and finally, in Illinois v. Gates, supra, abandoning the two-pronged test in favor of the “totality of the circumstances” test. In Illinois v. Gates, the Supreme Court ruled that a deficiency in the showing on either basis of knowledge or reliability may be overcome by a strong showing in the other area or by other indicia of trustworthiness, such as independent corroboration, a high degree of detail stated, or the results of independent police investigation. Id. The court continued to emphasize that basis of knowledge and reliability are not entirely separate considerations, but rather closely intertwined concepts that often overlap. Id.

Our state Supreme Court has taken a similarly circuitous route. After first accepting the Illinois v. Gates “totality of the circumstances” test; see State v. Perry, 195 Conn. 505, 508, 488 A.2d 1256 (1985); State v. Gasparro, 194 Conn. 96, 106, 480 A.2d 509 (1984); it later ruled that article first, § 7, of our state constitution required adherence to the Aguilar-Spinelli test. State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985). In 1991, the court repudiated Kimbro and embraced the Gates “totality of the circumstances” approach to the probable cause determination: “When a search warrant affidavit is based on information provided to the police by confidential informants, the magistrate should examine the affidavit to determine whether it adequately describes both the factual basis of the informant’s knowledge and the basis on which the police have determined that the information is reliable. If the warrant affidavit fails to state in specific terms how the informant gained his knowledge or why the police believe the information to be trustworthy, however, the magistrate can also consider all the circumstances set forth in the affidavit to determine whether, despite these deficiencies, other objective indicia of reliability reasonably establish that probable cause to search exists. In making this determination, the magistrate is entitled to draw reasonable inferences from the facts presented.” State v. Barton, supra, 544.

“With respect to our function in reviewing trial court decisions on probable cause, it is clear that upon disputed factual issues we are ordinarily bound by the finding of the judge who heard the evidence. We should not, however, defer to the legal conclusions drawn from those facts if in our judgment they are clearly erroneous. Practice Book § 3060D. We have heretofore treated probable cause as a question of law to be reviewed in the light of subordinate facts found by the trial court or presented to us as undisputed. See State v. Daley, [supra]; State v. Jackson, 162 Conn. 440, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S. Ct. 198, 34 L. Ed. 2d 121 (1972). ... No more deference is due [a] determination than any other trial court decision on a question of law.” (Emphasis in original.) State v. Kimbro, supra, 242 (Shea, J., dissenting). Once a magistrate has made a determination on the issue of probable cause, in contrast, the determination is accorded great deference by reviewing courts on both the trial and appellate levels. United, States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965); Aguilar v. Texas, supra; United States v. Travisano, 724 F.2d 341, 345 (2d Cir. 1983); State v. Barton, supra, 536. In reviewing the sufficiency of the affidavit for a search warrant we do not conduct a de novo review. Illinois v. Gates, supra; State v. Couture, supra, 546. We limit ourselves to the facts that appear on the face of the affidavit or that properly may be inferred therefrom; State v. Williams, 170 Conn. 618, 629, 368 A.2d 140, cert. denied, 429 U.S. 865, 97 S. Ct. 174, 50 L. Ed. 2d 145 (1976); testing those facts with common sense and reality. United States v. Ventresca, supra. A probable cause determination by a magistrate will be upheld as long as there was “ ‘a “substantial basis for . . . concluding]” that a search warrant would uncover evidence of wrongdoing.’ ” United States v. Rowell, 903 F.2d 899, 902 (2d Cir. 1990).

Having set out the applicable rules of law, we proceed with our analysis in light of these standards. The trial court scrutinized the affidavits and examined each paragraph with great care. The trial court found fault with each paragraph of the affidavit describing information the affiants had received from the confidential informants. The court concluded in paragraph two that A never indicated how he knew the information stated in that paragraph, and never stated that he actually saw the cocaine. Regarding paragraph three, the court concluded that B never indicated how he knew the information that was stated therein and that the facts were not reliable or credible. In paragraph four, the court found fault with the fact that C stated that Genao made the sales for Rodriguez, but that he did not say when the sales where made. The court concluded that paragraph five never said that C, who had made the controlled buy, was searched before he went into the store and after he exited the store, or that the detectives had him in view. The court was also concerned that in paragraph six, B did not tell the detectives the time at which he saw the quantity of cocaine at the defendant’s residence. Finally, the court found fault with the fact that at the suppression hearing the affi-ants testified that B met with them during the third week of May, but the affidavit did not mention this. The trial court then found, under the Aguilar-Spinelli test, that the information was not shown to be reliable and the basis of the informant’s knowledge was not appropriately revealed.

Although Gates abandoned the two-pronged test in favor of a totality of the circumstances test, the Gates majority “did not reject out of hand the underlying concerns that had originally been expressed in Aguilar.” State v. Barton, supra. Rather, the court agreed that an informant’s “ ‘veracity’ or ‘reliability’ and the ‘basis of knowledge’ inquiries formulated in Aguilar remain ‘highly relevant’ in the determination of probable cause and should be regarded as ‘closely intertwined issues that may usefully illuminate the commonsense, practical question’ of the existence of probable cause to believe that contraband or evidence is located in a particular place.” Id., 537, quoting Illinois v. Gates, supra, 230. The court did abandon, however, the “ ‘rigid compartmentalization’ of the inquiries and denied that the court had ever intended them to be understood as ‘entirely separate and independent requirements to be rigidly exacted in every case.’ ” Id., quoting Illinois v. Gates, supra.

Here, the trial court excluded the April tips set out in paragraphs two and three of the affidavit on the ground that the affiants’ failed to state the bases of the informants’ knowledge. Applying the totality of the circumstances analysis, we conclude that the magistrate was entitled to credit those tips despite the failure of the affidavit to reveal the basis of the knowledge contained therein. The information received from the two different sources dovetailed and thus each source corroborated the information provided by the other and enhanced the reliability of the stated facts. State v. Brown, 14 Conn. App. 605, 616, 543 A.2d 750, cert. denied, 208 Conn. 816, 546 A.2d 283 (1988). Both of the informants were known to the two detectives and, therefore, the magistrate could infer that each had an interest in avoiding adverse consequences resulting from providing the police with false information. State v. Barton, supra, 550-51. Although the basis for their knowledge of the information related in their tips was not disclosed, the information was corroborated by C’s controlled buy. Additionally, common sense leads us, inferentially, to the conclusion that the tip was trustworthy. Id., 551; State v. Johnson, 219 Conn. 557, 568, 594 A.2d 933 (1991). B, who provided the second tip in April, had a strong track record of providing information in the past. We conclude that, under the totality of the circumstances, the magistrate was entitled to credit the two April tips, despite the fact that the informants’ basis of knowledge was not indicated.

The trial court rejected the first May tip because C failed to provide exact dates of the “numerous” drug sales from Nova Importing that he claimed to have observed. The tip was based on C’s direct observation and thus the magistrate could reasonably credit the information. State v. Morrill, supra, 566. Reading the affidavit, the magistrate could reasonably have inferred that the activity C described took place on various dates in the weeks preceding the tip because C’s use of both the present and past progressive verb tenses in describing the activity indicated continuing action. Moreover, this court has noted that the business of dealing in illegal drugs often “involves a course of conduct which continues over a long period of time”; State v. Ralston, supra; and “is usually considered to be a regenerating activity.” State v. Brawn, supra, 615. Although it is reasonable to infer that probable cause dwindles as time passes, the likelihood that evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock. State v. Johnson, supra, 566. Because the affidavit as a whole clearly depicts narcotic trafficking carried on continuously over a period of months, and narcotics trafficking typically occurs for extended periods of time, the temporal factors are not as critical to the determination of probable cause and do not require the magistrate wholly to exclude this tip from his consideration. Id.

The trial court discounted the controlled buy because of the failure of the officers to keep the informant in view and the failure of the affidavit to state that he was searched after the buy. The affidavit states that C “was thoroughly searched and after finding no drugs or money was given a prerecorded sum of money and surveilled to travel to [Nova Importing] .... The informant was observed to enter ‘Nova Importing’ remain 2-3 minutes and exit the store and travel to a pre arranged location where the informant met with Trompetta and turned over a package of white powder substance that field tested positive to be cocaine.” The affidavit also indicates that the informant told the detectives that he was directed to the rear of the store, where he purchased the cocaine from Gilberto Genao. Because C was searched before entering the store, was not seen leaving the store other than to meet with Trompetta, remained in the store only a short while and was observed until he met with the detective, it is a fair and reasonable inference that the contraband he gave to Trompetta came from the premises in question. See id. The informant was shown to be credible and statements made on his personal knowledge can be credited. State v. Morrill, supra. The trial court’s imposition of the requirement that the officers keep the informant under surveillance while he was inside the building consummating the transaction is unrealistic. Such a rule would effectively eliminate controlled buys as an investigative technique in almost all situations where a sale is made inside a building. State v. Johnson, supra. The controlled buy thus was a reliable part of the foundation on which the magistrate could base his finding of probable cause.

The trial court also found fault with the fact that paragraph six of the affidavit did not state when B observed cocaine at the defendant’s residence and that the detectives did not corroborate that Nova Importing and 50 Westville Avenue were the defendant’s business and his home address. Because, as stated earlier, involvement in the sale of narcotics is seldom a one time activity and the affidavit as a whole clearly indicates that narcotic trafficking was carried on continuously over a period of months, the failure to indicate precise dates does not defeat the magistrate’s finding of probable cause. Fitting all of the individual pieces of information together forms a “mosaic” that establishes probable cause for the search of the defendant’s residence, his place of business and his person. The information leads to the reasonable conclusion that the locations for which the search warrant was obtained were in fact the defendant’s home and business.

The trial court also found that the affidavit did not sufficiently incriminate the defendant, as opposed to Genao. All three confidential informants indicated that Genao was working for the defendant, that he made customer contacts for the defendant, that he was involved in drug sales in Danbury and that he picked up the cocaine in New York and brought it to Connecticut for the defendant. Here, too, the information received from each of the three sources was confirmed by the other two informants and thus each source corroborated the information provided by the others and enhanced the reliability of the stated facts. State v. Brown, supra, 616.

Viewed together, the four tips and the controlled buy established a “fair probability” that evidence of narcotics trafficking would be found at the defendant’s residence, at his business and on his person. The information as to the tips set out in paragraphs two, three, four and five of the affidavit provides background and context for the salient and significant June tip set out in paragraph six. The initial three tips describe in highly consistent terms the modus operandi of the enterprise: deliveries of cocaine were received at the defendant’s home, sales and meets were conducted at his place of business, the defendant and his wife were both involved in this activity, and Genao handled the direct transactions with customers. C’s controlled buy corroborated, in highly concrete terms, his earlier report as well as the details described by A and B.

The judgment is reversed and the case is remanded with direction to deny the defendant’s motions to suppress and dismiss and to reinstate the charges against him.

In this opinion the other judges concurred.

       Our decision in this case is controlled by our Supreme Court’s recent rulings in State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991), and State v. Johnson, 219 Conn. 557, 594 A.2d 933 (1991). See State v. Payne, 25 Conn. App. 428, 431, 594 A.2d 1035, cert. denied, 220 Conn. 915, 597 A.2d 337 (1991). “In those cases, the court overruled its previous holding in [State v.] Kimhro [197 Conn. 219, 492 A.2d 498 (1985)] and found that ‘the “totality of the circumstances” analysis adopted in [Elinois v.] Gates, [462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)] will continue to guarantee the people of Connecticut “the full panoply of rights” that they have come to expect as their due.’ State v. Barton, supra, 546.” State v. Payne, supra.

       The fourth amendment to the United States constitution, made applicable to the states through Wolf v. Colorado, 338 U.S. 25, 28, 69 S. Ct. 1359, 93 L. Ed. 2d 1782 (1949), provides: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

       In contrast, “[t]he validity of an arrest warrant depends upon whether the application for the warrant and the accompanying affidavit establish probable cause to believe that: (1) a crime has been committed; and (2) the person to be arrested committed that crime. General Statutes § 54-2a (a) (1); Practice Book § 593; State v. Daley, 189 Conn. 717, 720, 458 A.2d 1147 (1983); State v. DeChamplain, 179 Conn. 522, 529, 427 A.2d 1338 (1980); 1 LaFave, Search and Seizure (1978) § 3.7. The affidavit must recite sufficient facts so that the judicial officer who issues the warrant can, relying solely on the information thus brought to his or her attention, make an independent determination that probable cause exists as to each element of every crime charged.” State v. Heinz, 193 Conn. 612, 616-17, 480 A.2d 452 (1984).

       Under this test, “[t]he 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.” (Internal quotation marks omitted.) State v. Ruscoe, 212 Conn. 223,228-29, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990); 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).

       The trial court applied the Aguilar-Spinelli test as “law that is effective today,” although it concluded that even under the Gates “totality of the circumstances” test the motion to suppress should be granted.


author: Dupont, C. J.

text:
    State of Connecticut v. Jerome Bunker
    (10086)
    Dupont, C. J., Norcott and Lavery, Js.

      Argued January 17
    decision released April 7, 1992

      James A. Wade, with whom were William A. Collier and, on the brief, Craig A. Raabe, for the appellant (defendant).

      Susan C. Marks, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Rosita M. Creamer, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crime of assault in the first degree in violation of General Statutes § 53a-59 (a) (3). The defendant claims that the trial court (1) improperly instructed the jury and (2) improperly denied his motion for judgment of acquittal because the evidence presented was insufficient to allow the jury to find him guilty of assault in the first degree under General Statutes § 53a-59 (a) (3). We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On November 25, 1989, approximately forty high school students gathered for a party at a private residence in West Hartford. Most of the participants knew one another as classmates at a local high school. A few people, including the defendant, were not known to the majority of the partygoers. The defendant and the victim did not know each other.

The victim was seated in the kitchen, talking to two young women and consuming beer, when he snapped his fingers in a way that projected a bottle cap across the kitchen. The bottle cap struck the defendant in the leg. The defendant approached the victim, who stood up and apologized. The defendant said, “I’m going to fix you. I’m going to get you back.” The defendant then picked up a beer bottle, swung it, and hit the victim in the side of the neck. The bottle shattered, the victim fell to the ground, and the defendant got on top of him. The defendant had his hand cocked back to hit the victim when he was grabbed by a bystander.

The victim began to bleed profusely behind his left ear. The defendant then fled the house and, some three hours later, turned himself in to the West Hartford police.

The wound in the victim’s neck was very deep, requiring emergency surgery to stem the bleeding and, later, reconstructive surgery to repair a severed facial nerve. The defendant stipulated at trial that the victim suffered serious physical injuries as a result of this incident.

I

The defendant raises several challenges to the trial court’s instructions to the jury. He claims that the trial court (1) incorrectly instructed the jury on the meaning of “under circumstances evincing an extreme indifference to human life” within General Statutes § 53a-59 (a) (3), (2) should have instructed the jury, as requested, on the meaning of “gross deviation” in explaining recklessness, and (3) instructed the jury on the greater and lesser included offenses in a manner that was confusing and incomprehensible to the jury.

A

The defendant’s first claim is that the trial court did not correctly define the term “extreme indifference” to the jury. General Statutes § 53a-59 (a) (3) provides that a person is guilty of assault in the first degree when “under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person.” The trial court instructed the jury on the statutory definition of “recklessly.” In explaining the elements of § 53a-59 (a) (3) to the jury, the trial court also instructed the jury that “extreme” means “exceeding the ordinary or of a high degree” and then paraphrased the statutory term “extreme indifference to human life” to mean “a high degree of disinterest to human life.” This instruction was given to the jury in the main charge and again in a reinstruction after the jury specifically asked for “the legal definition of extreme indifference to human life” during the course of its deliberations. The defendant claims that, in choosing “high degree” as a synonym for “extreme,” the trial court failed to communicate to the jury that one must have the highest degree of disregard for human life in order to be convicted under § 53a-59 (a) (3). We do not agree.

“ ‘A charge to the jury is not to be clinically dissected nor are the portions of the charge to be read in isolation from the entire instruction. . . . Rather the charge is to be read as a whole with a view towards its probable effect in guiding a jury to a correct verdict. . . . The test to be applied to any part of the charge is whether the charge, when taken as a whole, presents the case to the jury fairly and accurately, such that no injustice will be done.’ ” (Citations omitted.) State v. Williams, 25 Conn. App. 456, 459, 595 A.2d 895, cert. denied, 220 Conn. 916, 597 A.2d 339 (1991).

No definition of “extreme indifference to human life” is found in the penal code, title 53a of the General Statutes. In State v. Spates, 176 Conn. 227, 236-37, 405 A.2d 656 (1978), cert. denied, 440 U.S. 922, 99 S. Ct. 1248, 59 L. Ed. 2d 475 (1979), the trial court was upheld when it defined the term for the jury by stating that it meant more than “mere carelessness” or “ordinary recklessness,” and also charged the jury extensively on the meaning of “recklessly.”

In Spates, the crime in question was manslaughter in the first degree a violation of General Statutes § 53a-55 (a) (3). Like assault in the first degree in a violation of General Statutes § 53a-59 (a) (3), manslaughter in the first degree requires proof of reckless conduct that creates a grave risk of death to another person “under circumstances evincing an extreme indifference to human life.” The only difference between § 53a-55 (a) (3) and § 53a-59 (a) (3) is that the former requires the conduct to cause the death of another person, whereas the latter requires the same type of conduct to cause serious physical injury to another person. Thus, the holding in Spates is applicable in this case.

Here, as in Spates, the court further refined its definition of extreme indifference in the context of recklessness by explaining: “So mere carelessness is not enough nor is ordinary recklessness enough. However, intent is not necessary. The reckless conduct must create a grave risk of death under circumstances showing an extreme indifference to human life.” Moreover, soon thereafter, in its jury instructions on the reckless form of assault in the third degree, the court again stressed the difference between ordinary recklessness and the type of reckless assault made criminal by § 53a-59 (a) (3): “[YJou’ll note that this [§ 53a-61 (a) (2)] is ordinary recklessness, unlike the one [§ 53a-59 (a) (3)] defined in a previous charge, and the qualifying language is conduct which created a risk of death under circumstances evincing an extreme indifference to human life has been removed.” In doing so, the trial court properly instructed the jury that the type of recklessness of § 53a-59 (a) (3) is one step further toward culpability than ordinary recklessness. The court, therefore, gave the jury a clear understanding of the aggravated form of recklessness required to support a conviction under § 53a-59 (a) (3).

B

Next, the defendant argues that the trial court should have instructed the jury on the meaning of “gross deviation” in its definition of recklessness. The trial court read the statutory definition of “recklessly” to the jury: “The statute defines recklessly in that a person acts recklessly with respect to a result or to a circumstance described by a statute when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the circumstances.” See General Statutes § 53a-3 (13). The defendant requested that the court further instruct the jury: “A gross deviation is a great, or substantial, deviation, not just a slight or moderate deviation. There must be a great or substantial difference between, on the one hand, the defendant’s conduct in disregarding a substantial and unjustifiable risk, and, on the other hand, what a reasonable person would have done under the circumstances.” The trial court did not give the requested instruction.

While a request to charge that is relevant to the issue of the case and is an accurate statement of the law must be given, the trial court is not required to charge in the identical language requested if its charge is accurate, adequate and, in substance, properly includes material portions of the defendant’s request. State v. Pinnock, 220 Conn. 765, 789, 601 A.2d 521 (1992). Thus, the trial court properly discharges its duty “when it gives instructions to the jury in a manner calculated to give them a clear understanding of the issues presented for their consideration, under the offenses charged and upon the evidence, and when its instructions are suited to their guidance in the determination of those issues.” Id., 789-90; State v. Watlington, 216 Conn. 188, 198-99, 579 A.2d 490 (1990).

It is not improper for a trial court to refuse to define terms that are “used and might be understood in their ordinary meanings.” State v. Maresca, 173 Conn. 450, 460, 377 A.2d 1330 (1977); State v. Lewtan, 5 Conn. App. 79, 85, 497 A.2d 60 (1985). The term “gross deviation” as it appears in § 53a-3 (13) is not used in any way other than its ordinary meaning. See State v. Salz, 26 Conn. App. 448, 455, 602 A.2d 594 (1992).

Moreover, the trial court further instructed the jury that “the conduct described [in § 53a-3 (13)] is more than mere carelessness but not such as intended the serious physical injury.” This further explanation of the concept of recklessness adequately covered the substance of the defendant’s request to charge. Accordingly, the court’s instructions gave the jury “a clear understanding of the elements of the crime charged and the proper guidance to determine if those elements were present.” State v. Avila, 166 Conn. 569, 574, 353 A.2d 776 (1974).

C

The defendant’s final claim of instructional error is that the jury charge on the essential elements of assault in the first degree and each lesser included offense was so confusing that it failed to guide the jurors to a clear understanding of the issues presented for their consideration. The defendant does not attack the substance of any particular instruction, but rather the methodology used by the court in presenting a description of the various offenses that the jury was to consider.

The defendant filed requests to charge on the lesser included offenses of assault in the second degree, General Statutes § 53a-60 (a), and assault in the third degree, General Statutes § 53a-61 (a). The defendant requested that the court first instruct the jury on the three types of assault in the first degree, then proceed to the three applicable types of assault in the second degree, and finally conclude with the three types of assault in the third degree. Instead, the court gave its charge on the substantive aspects of assault in the following order: first degree assault under § 53a-59 (a) (1); second degree assault under § 53a-60 (a) (1); second degree assault under § 53a-60 (a) (3); second degree assault under § 53a-60 (a) (2); third degree assault under § 53a-61 (a) (1); third degree assault under § 53a-61 (a) (3); first degree assault under § 53a-59 (a) (2); first degree assault under § 53a-59 (a) (3); and third degree assault under § 53a-61 (a) (2). The trial court explained that its methodology described each greater offense and all of its lesser included offenses, if any, before moving on to the next greater offense and its lesser included offenses, if any.

Under either method, the trial court had to instruct a jury, composed of laypersons, on nine different forms of assault. Whether it chose to do so as it did or as requested by the defendant, it necessarily was faced with a formidable task. Rather than being “confusing and incomprehensible,” as claimed by the defendant in his brief, the jury instructions presented the substantive aspects of assault in a logical manner calculated to inform the jury as to the difference between each type of assault. As the trial court moved from explaining one form of assault to the next, it emphasized which essential elements remained the same and which no longer needed to be proved.

It is important to note that the method used by the court was pedagogical; it was not an instruction on the order in which the jury was to consider the charges against the defendant. Thus, immediately following its instructions on the substantive elements of all of the varying degrees and methods of committing assault, the trial court made clear that the jury should first consider all three forms of assault in the first degree before considering any of the lesser included offenses. The jury had with it during its deliberations the information charging the defendant with the three methods of committing assault in the first degree using the words of the statute. The court pointed out to the jurors that, because the information contained the relevant words of the statute with respect to each charge of first degree assault, it would provide a useful guide in their deliberations.

Moreover, the defendant’s claim of jury confusion caused by the instructions on the lesser included offenses and his claim that this confusion caused the jury to report a verdict on the third method of first degree assault when it had actually made a guilty finding on third degree assault, is belied by the fact that the jury foreperson reported that the jury, having found guilt on one of the forms of assault in the first degree, as contained in the information, did not consider any of the lesser included offenses. Our review of the jury charge as a whole, along with the verdict as reported by the jury foreperson and the subsequent individual polling of the jurors convinces us that, far from being confused as to what law to consider and apply in determining the defendant’s guilt or innocence, the jury was given “a clear understanding of the elements of the crime charged and the proper guidance to determine if those elements were present.” State v. Avila, supra.

II

The defendant next claims that the evidence before the jury was insufficient to support his conviction of the crime of assault in the first degree. The defendant claims that the manner in which the assault occurred, as a single, instantaneous, reflexive act during an extremely brief encounter between strangers, falls far short of the “circumstances evincing extreme indifference to human life” proscribed by General Statutes § 53a-59 (a) (3). We disagree.

When an appeal challenges the sufficiency of the evidence to justify a verdict of guilty, we have a two-fold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the verdict. We then determine whether the jury could have reasonably concluded upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Carpenter, 214 Conn. 77, 78-79, 570 A.2d 203 (1990); State v. Bewry, 26 Conn. App. 242, 245, 600 A.2d 787 (1991).

There was evidence before the jury that the victim, who had had no prior contact with the defendant, inadvertently struck the defendant in the leg with a bottle cap. The defendant and the victim then made eye contact and the defendant walked toward the victim. As the victim stood up, the defendant accused the victim of hitting him and, in spite of the victim’s apologies, the defendant pushed the victim. As the victim raised his hands, the defendant, who was standing chest-to-chest with the victim, swung a beer bottle at a vital area of the victim’s body with sufficient force to shatter the bottle and to inflict a very deep wound which lacerated facial nerves, arteries and veins, and fractured a small bone near the base of the victim’s brain. The defendant did not halt his attack when the victim fell to the floor but was pulled from on top of the victim when it appeared he was preparing to strike the victim again.

While the conduct here may not have been as serious as that involved in the cases relied on by the defendant; see, e.g., State v. Bunkley, 202 Conn. 629, 522 A.2d 795 (1987); State v. Giguere, 184 Conn. 400, 439 A.2d 1040 (1981); State v. Johnson, 14 Conn. App. 586, 543 A.2d 740, cert. denied, 209 Conn. 804, 548 A.2d 440 (1988); none of those cases can be read to establish the minimum quantum of evidence necessary to sustain a conviction under § 53a-59 (a) (3).

The jury here could have concluded beyond a reasonable doubt that the defendant’s conduct was not merely reckless, but also evinced an extreme indifference to human life. Accordingly, the trial court properly denied his motion for a judgment of acquittal.

The judgment is affirmed.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-59. assault in the first degree: class b felony, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or (2) with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person; or (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person.”
      The information charged the defendant with committing assault in the first degree by each method contained in General Statutes § 53a-59 (a). The jury found the defendant guilty of assault in the first degree in violation of § 53a-59 (a) (3). The jury also found the defendant not guilty of assault in the first degree in violation of § 53a-59 (a) (1) and not guilty of assault in the first degree in violation of § 53a-59 (a) (2).

       The text of the court’s charge on the definition of “recklessly” is quoted in Part I B, infra.

       See footnote 1, supra.

       “[General Statutes] Sec. 53a-60. assault in the second degree: class D felony, (a) A person is guilty of assault in the second degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or (3) he recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument . . . .”

       “[General Statutes] Sec. 53a-61. assault in the third degree: class a misdemeanor, (a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or (2) he recklessly causes serious physical injury to another person; or (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon, a dangerous instrument or an electronic defense weapon. . . .”


text:
    Carolyn Goodman v. Bank of Boston Connecticut, Executor (Estate of Helen Meyer)
    (9801)
    Dupont, C. J., Daly and Lavery, Js.

      Argued September 27, 1991
    decision released March 23, 1992

      Robert P. Hanahan, with whom was James T. Ryan, for the appellant (defendant).

      Harry Cohen, with whom, on the brief, was Marc Ford Greene, for the appellee (plaintiff).
   Dupont, C. J.

This appeal results from a judgment of the trial court that reversed a decision of commissioners appointed by a Probate Court to review a claim against the estate of Helen Meyer. The plaintiffs claim, denied first by the executor of the estate, and then by the commissioners, sought specific performance of an oral contract allegedly made by Helen Meyer for the conveyance of real estate, or, in the alternative, for damages. After the commissioners filed a written report denying her claim, the plaintiff appealed to the Superior Court pursuant to General Statutes § 45a-401 (d). The Probate Court ordered that notice of the appeal be given to the executor and to the attorney for the estate.

The plaintiff then filed a document labeled “Complaint,” which contained a statement of the nature and basis of her appeal and the damages sought in the Superior Court as required by Practice Book § 195. Although no writ of summons was filed with the complaint, the plaintiff gave the notice required by the Probate Court. The real estate in question was devised to the plaintiff’s sister, Jeanne Savoy, in the will of Helen A. Meyer, but no notice of the appeal to the Superior Court was given to her. Jeanne Savoy was not a party in the trial court action and there was no motion made to intervene or to require her joinder as a party. The trial court concluded that there was an enforceable oral contract between Meyer and the plaintiff, that the contract did not violate the statute of frauds because there was part performance of it, and that the statute of limitations had not run. The court ordered the executor to convey title to the real estate to the plaintiff upon payment to the devisee of “one half the value of the subject property.” The executor appeals from that judgment.

The trial court found certain relevant facts based solely on the transcript of the hearing before the commissioners, and considered no other evidence. The plaintiff is the elder of the decedent’s two children. In January or February, 1981, the plaintiff was residing in Oklahoma with her husband who was suffering from a terminal illness. She and her husband traveled to her mother’s home in Roxbury, Connecticut, to discuss whether the plaintiff should move to Connecticut. The plaintiff and the decedent reached an oral agreement providing that the plaintiff would reside in the decedent’s house, make certain refurbishments, and care for the decedent. In return, the decedent would convey the house to the plaintiff. The plaintiff also agreed to pay one half of the value of the residence to her sister, Jeanne Savoy, upon the death of the plaintiff's husband. The oral agreement was reached in the presence of the plaintiff’s husband, now deceased, and her nephew, Roger Savoy.

The plaintiffs family sold their house in Oklahoma and moved to Roxbury in July, 1981. They contracted for renovations, which were paid for from the proceeds of the sale of the Oklahoma house. In September, 1981, the plaintiff and the decedent had an argument after which the plaintiffs family vacated the decedent’s house at the request of the decedent. Shortly thereafter, the decedent changed her will, which had left one half of her estate to each of her two daughters. The new will disinherited the plaintiff, leaving all of the decedent’s estate to Jeanne Savoy.

The executor contends that the trial court lacked jurisdiction over this appeal because (1) the plaintiff instituted suit without a writ of summons and directed her complaint against the estate as defendant, (2) the plaintiff failed to join the devisee of the real estate, an indispensable party, and (3) it lacked the power to order specific performance of the contract. The other claims of the defendant relate to whether the statute of limitations had run, whether an oral contract had been proved, and, if so, whether it was unenforceable because of the statute of frauds. We first review the jurisdictional questions because, if the defendant is correct that the court lacked jurisdiction, we need not reach the other questions raised.

In order to resolve the jurisdictional questions, we must discuss the nature of an appeal to the Superior Court from the actions of commissioners. Appeals from the actions of commissioners of estates have long been the subject of our statutes and decisions. See General Statutes (1866 Rev.) § 145; Moss’ Appeal from Probate, 36 Conn. 212 (1869); Bennett’s Appeal from Probate, 33 Conn. 214 (1866). These two cases are early pronouncements of the distinction between an appeal from probate and an appeal from the actions of commissioners appointed by the Probate Court. They held that an appeal from a decree of a Probate Court accepting a report of commissioners must be dismissed as violative of the statutes authorizing the use of commissioners because the only appeal to the Superior Court that lies is directly from the “doings of the commissioners.” For more than 130 years, a distinction has been made between probate appeals and appeals from commissioners appointed by the Probate Court. Silver-stone v. Lille, 141 Conn. 104, 103 A.2d 915 (1954); Ohm-stead’s Appeal from Probate, 43 Conn. 110 (1875). This distinction continues both in our statutes and in our rules of practice. See General Statutes §§ 45a-190, 45a-186; Practice Book §§ 194, 195.

Commissioners for solvent estates existed until 1968 when the statute authorizing their appointment was repealed. “[General Statutes] § 45-213b [now codified as General Statutes § 45a-401], effective October 1, 1975, reinstituted the procedure of appointing commissioners to receive and decide claims against solvent estates. . . . The prior statute authorizing the appointment of commissioners on solvent estates, [General Statutes] § 45-211, was repealed, effective January 1, 1968. While the new statute varies in several material respects from § 45-211, it seems likely that the procedures used under the old statute, and the case law applicable thereto, both closely analogous to the insolvent estate procedures, will be closely followed.” G. Wilhelm, Connecticut Estate Practice, Settlement of Estates (1991) § 251A.

I

The defendant claims that the appeal must be dismissed for lack of personal jurisdiction because the plaintiff failed to initiate the action with a writ of summons attached to a complaint. The defendant relies on Hillman v. Greenwich, 217 Conn. 520, 587 A.2d 99 (1991), which concerned a statutory action to recover for damage to the plaintiff’s real property allegedly caused by unlawful and unreasonable drainage and discharge of surface waters by the defendant. The Hillman court held that where a complaint contains no direction to a proper officer for service or a command to summon the defendant to appear in court, the court lacks jurisdiction and the action must be dismissed. That case, however, is not controlling here.

Although a writ of summons is a prerequisite to the commencement of a civil action; General Statutes § 52-45a; we conclude that an appeal from commissioners’ actions is not a “commencement” of a civil action. Such an action, when it comes to the Superior Court, is not an original one, but a continuation of an action commenced in the Probate Court. The appeal in the Superior Court is already shaped by the prior proceedings, including the setting of a bond, and an order of notice. See General Statutes §§ 45a-190, 45a-192.

The plaintiff was required to comply with Practice Book § 195, “[Pleading Special Matters]-Appeals from Commissioners” rather than Practice Book § 49. The latter section concerns mesne process in the usual civil case and specifically excludes probate appeals. Appeals from reports of commissioners are not specifically excluded from § 49, but, since there is a separate section, § 195, that does concern such appeals, we conclude that § 49 does not apply. Furthermore, not all types of actions that are commenced by other than mesne process are specifically excluded from the purview of § 49. See Boltuch v. Rainaud, 137 Conn. 298, 300-301, 77 A.2d 94 (1950). Eminent domain is one such type of case. We hold that an appeal from commissioners is another because it is a special appellate proceeding authorized by statute and governed by a particular section of our rules of practice.

Practice Book § 195 provides: “In all appeals from the . . . disallowance of any claim by commissioners appointed by the courts of probate, the party presenting the claim shall . . . file a statement of the amount and nature of his claim, and of the facts upon which it is based, which statement shall conform, as far as may be, in form and substance, to the requirements of a complaint brought to recover upon said claim in a civil action. To such statement the adverse party, unless otherwise ordered by the court, shall plead, and thereafter the pleadings shall continue until issues are joined, as in civil actions.”

The allegations of the plaintiffs complaint contained a statement of the nature of the plaintiffs claims, a statement from which damages could be assessed, and the facts on which her claim was based. Her complaint therefore complied with Practice Book § 195. “[Appeals] from the doings of commissioners, are not civil actions. They are not commenced by the service of process and no complaint or other pleading, in the ordinary use of that term is required.” Savelewitz v. Solid, 21 Conn. Sup. 159, 162, 149 A.2d 314 (1958). Moreover, unlike Practice Book § 49, Practice Book § 195 does not require a writ of summons. Finally, the appeal was not directed, as the defendant claims, against the estate, but against the executor. The plaintiffs appeal need not have been dismissed because of its lack of a writ of summons.

II

The defendant next claims that the trial court lacked any power to order a specific conveyance of real estate owned by the devisee, Jeanne Savoy, because she was not a party to the appeal, and because a claim for the recovery of real estate is not a claim against the estate. The defendant, therefore, argues that the appeal should be dismissed. We conclude that the court could not have ordered specific performance even if Jeanne Savoy had been a party because the trial court did not have the power to grant specific performance of a contract to convey real estate on an appeal from commissioners appointed by a Probate Court.

Upon the death of the owner of real estate, neither the executor nor the administrator holds title. Ryder v. Lyon, 85 Conn. 245, 252, 82 A. 573 (1912). Title immediately descends to the heirs or devisees of real estate, subject to the right of administration. O’Con-nor v. Chiascione, 130 Conn. 304, 33 A.2d 336 (1943). Any conveyance to the plaintiff of necessity must interfere with the title held by her sister who was the devisee of the real estate. As a person whose interests in real estate would be affected by the relief sought, Jeanne Savoy was an indispensable party. Graham v. Zimmerman, 181 Conn. 367, 435 A.2d 996 (1980). No decree can enter affecting title to real estate unless all of the parties who will be directly affected by any judgment that may be rendered are before the court. Id., 372. The court’s judgment ordering the executor to convey title cannot stand because the executor did not have title and because the person who did have title upon the death of Helen A. Meyer was not a party. Ordinarily this would require us to remand the case for the purpose of allowing the indispensable party to intervene with respect to the plaintiff’s claim to obtain the relief of specific performance. See Fong v. Planning & Zon ing Board of Appeals, 212 Conn. 628, 563 A.2d 293 (1989). Here, however, we conclude that the court had no jurisdiction, sitting as an appellate court reviewing the actions of commissioners, to grant such relief and, therefore, Jeanne Savoy need not have been a party.

An appeal from the actions of commissioners appointed by a Probate Court to receive and decide on the claims of creditors of an estate is not an appeal from probate. Olmstead’s Appeal from Probate, supra. Although appointed by the Probate Court, “they are not an arm of it, in the sense that an auditor or a committee appointed by the Superior Court is an arm of that court. The court of probate had no power to revise, alter, or modify the doings of the commissioners. Their report stands in the court of probate, having the same force and effect that it would have if made by a tribunal appointed by the General Assembly.” Id., 116.

Commissioners have only those powers defined by statute, which are to “receive and decide upon the claims of creditors of the estate.” General Statutes § 45a-406; see General Statutes §§ 45a-401, 45a-408. “An appeal from the allowance or the disallowance of a claim by the commissioners carries the case into the appellate court precisely as it stood before the commissioners. The question there is, as before, whether the claim is one that should be allowed against the estate.” Tolies’ Appeal from Commissioners, 54 Conn. 521, 524, 9 A. 402 (1887). The claim here was for specific performance, or in the alternative for monetary damages for breach of contract or for unjust enrichment.

The plaintiff’s claim, insofar as it sought specific performance, involved a claim against a devisee of real estate rather than a claim against the estate. It, therefore, was beyond the statutory power of the commissioners; see Olmstead’s Appeal from Probate, supra; and, accordingly, outside of the jurisdiction of the Superior Court sitting as an appellate court to determine the issues that could have been decided by the commissioners. Tolies’ Appeal from Commissioners, supra. Jeanne Savoy would have been an indispensable party if the relief of specific performance had been proper. The court, however, could not order such relief. The plaintiff also sought monetary damages, which was a claim for relief that could be entertained by the commissioners and, accordingly, the Superior Court as well. This claim can be resolved without the presence of Jeanne Savoy as a party because it involves the disbursement of assets of the estate, rather than relief directed against a devisee of real estate.

Ill

The trial court concluded that there was an oral contract, that the decedent had breached it, and that the statute of limitations did not prevent enforcement of the contract. The defendant argues that these conclusions, which were based solely on the transcripts of the commissioners, cannot stand because they do not legally and logically flow from the transcripts. The defendant, therefore, urges that the judgment of the court be reversed, and that judgment for the defendant be directed. We do not. reach these remaining claims of the defendant because we conclude that the appeal in the trial court should have been heard de novo rather than solely on the transcripts of the hearing before the commissioners.

The hearing before the commissioners was recorded by an official stenographer and the transcripts were available to the trial court. In its memorandum of decision, the court states that the parties agreed that the court could consider “the transcripts of testimony taken before the probate commissioners the issue de novo whether the plaintiff has established her claims against the decedent’s estate.” The transcript of the trial court proceedings reveals that although the plaintiff made no objection to the use by the trial court of the transcript of the hearing before the commissioners, she did object to a denial of her motion for a trial de novo. She also objected, and then took an exception, to the trial court’s refusal to allow any evidence as to damages after she made an offer of proof.

There is no doubt that the Superior Court, sitting as an appellate court to review the actions of the commissioners, could determine whether a claim against the estate exists and, if so, the monetary amount to be awarded to the creditor. When a creditor appeals from a commissioner’s report, the report is vacated by the appeal itself. It is as though the entire proceeding had never occurred. Freda v. Smith, 142 Conn. 126, 111 A.2d 679 (1955); Fourth Ecclesiastical Society v. Mather, 15 Conn. 587, 599-600 (1843). Once the decision of the commissioners was appealed, therefore, the decision was nullified and the plaintiff had the burden of proving her claim as a de novo matter.

Conversely, probate proceedings remain intact until such time as they are superseded by a judgment of the Superior Court, regardless of whether an appeal is taken. General Statutes §§ 51-72 and 51-73 provide that official stenographers may be used in a Court of Probate and that an appeal from any decisions rendered after such a record is made in a Court of Probate, shall not be a trial de novo. General Statutes § 45a-186, which governs appeals from probate, provides that “[a]ppeals from any decision rendered in any case after a record is made under sections 51-72 and 51-73 shall be on the record and shall not be a trial de novo.” General Statutes §§ 45a-401 (d) and 45a-190, however, which govern appeals from the actions of commissioners, have no similar provision. We conclude that the lack of a similar provision was a deliberate omission of the legislature. See Kinney v. State, 213 Conn. 54, 64, 566 A.2d 670 (1989).

Given the long standing decisional dichotomy between appeals from probate proceedings and appeals from the actions of commissioners, we conclude that the statutory distinctions are intended to reflect the decisional divergence. If the legislature had wanted to preclude appeals from commissioners from being heard de novo when there is a stenographic record of the hearing before the commissioners, it could have so provided, as it did appeals from probate decisions. The court, therefore, should have allowed the plaintiff to introduce evidence as to damages because the matter was one to be determined de novo.

The failure to allow fresh evidence as to damages permeated the trial, and infected the other findings and conclusions that were made on the basis of the transcript. See Bleau v. Ward, 221 Conn. 331, 336, 603 A.2d 1147 (1992); Fazio v. Brown, 209 Conn. 450, 452-56, 551 A.2d 1227 (1988). A de novo trial allows the introduction of all evidence that could have been introduced at the original hearing before the commissioners. Thus, at the new trial, evidence of whether an oral contract existed, whether it was breached and, if so, when, and whether the claim is still viable must be considered. If the plaintiff prevails as to these issues, the damages due the plaintiff should be determined on the basis of the evidence introduced by the plaintiff.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 45a-401 (formerly § 45-213b) provides in pertinent part: “(a) Whenever a fiduciary of any estate of a deceased person disallows ... the claim of any creditor against the estate, which claim has been presented within the time limited for presenting claims against the estate, such creditor may . . . after notice of such disallowance apply to the court of probate to receive and decide such claim or in the alternative may apply to said court for the appointment of one or more disinterested persons, at least one of whom shall be an attorney at law, admitted to practice in this state, to be a commissioner or commissioners to receive and decide upon such claim. The court may . . . appoint such commissioner or commissioners, who shall be sworn to faithfully discharge their duties and shall have all the powers and duties concerning such claim that commissioners appointed under the provisions of sections 45a-406 and 45a-408 have with respect to claims against insolvent estates. . . .
      “(d) Any person aggrieved by the actions of such commissioner or commissioners may appeal therefrom as provided in accordance with the provisions of section 45a-190 with respect to insolvent estates.”
      General Statutes § 45a-190 provides for an appeal to Superior Court from the actions of commissioners within one month after their report is accepted by the Probate Court, upon giving bond.

       General Statutes § 45a-192 provides: “The court of probate, in allowing an appeal, shall make such order of notice to persons interested as it deems reasonable. When the notice has been given by the appellant and proved to the court to which the appeal is taken, the court may hear the appeal without further notice.” This section does not specifically apply to appeals from the actions of commissioners, but when read with General Statutes § 45a-191, which does so apply, it is reasonable to conclude that the Probate Court used § 45a-192 as its authority to issue an order of notice.

       Practice Book § 49 provides in pertinent part; “Mesne process in civil actions shall be a writ of summons or attachment, describing the parties, the court to which it is returnable and the time and place of appearance, and shall be accompanied by the plaintiff’s complaint.”

       In February, 1989, the defendant directed a request to revise and a motion to strike at the complaint alleging that it purported to commence a new action, not an appeal from the doings of commissioners. The plaintiffs objection to both the request to revise and the motion to strike was sustained by agreement on March 13, 1989.

       After the denial by a fiduciary of an estate of a claim involving real estate, an independent original action filed in the Superior Court, seeking specific performance to enforce an oral contract for the conveyance of the real estate is proper. Ubysz v. DiPietro, 185 Conn. 47, 440 A.2d 830 (1981).
      Because we have determined that Jeanne Savoy is not an indispensable party because the trial court could not order a conveyance of her real estate on an appeal from commissioners appointed by the Probate Court, we do not reach the issues of whether the failure of the defendant to move to strike the complaint for nonjoinder of an indispensable party was a waiver of the claim; see W. G. Glenney Co. v. Bianco, 27 Conn. App. 199, 604 A.2d 1345 (1992); or whether the lack of an indispensable party requires a dismissal of a cause of action or a new trial. See Stamford Ridgeway Associates v. Board of Representatives, 214 Conn. 407, 572 A.2d 951 (1990); Fong v. Planning & Zoning Board of Appeals, 212 Conn. 628, 563 A.2d 293 (1989); Graham v. Zimmerman, 181 Conn. 367, 435 A.2d 996 (1980).

       Our conclusion is based on plain error review. See In re Jonathan P., 23 Conn. App. 207, 211, 579 A.2d 589 (1990); Gillis v. Gillis, 21 Conn. App. 549, 556, 575 A.2d 230 (1990).