author: LAVERY, C. J.

text:
    TOWN OF RIDGEFIELD v. EPPOLITI REALTY COMPANY, INC. JOHN J. GIROLAMETTI ET AL. v. EPPOLITI REALTY COMPANY, INC.
    (AC 20491)
    Lavery, C. X, and Schaller and Peters, Js.

      Argued February 26 —
    officially released July 30, 2002

      Paul L. Bollo, for the appellant (defendant in both cases).

      Patricia C. Sullivan, for the appellee (plaintiff in the first case).

      Robert A. Fuller, for the appellees (plaintiffs in the second case).
   Opinion

LAVERY, C. J.

The defendant, Eppoliti Realty Company, Inc., in each of two cases consolidated for trial appeals from the judgments of the trial court determining that the entire parcel of land at issue was dedicated by the defendant and accepted properly as a public highway by the plaintiff town of Ridgefield (town) and enjoining the defendant from obstructing the other plaintiffs’ access to that highway. The defendant claims on appeal that the court improperly (1) concluded that the entire parcel of land at issue was dedicated and accepted as a public highway, (2) failed to conclude that the plaintiffs’ claims were barred by the doctrines of laches, unclean hands and equitable estoppel, (3) failed to order that the plaintiffs John J. Girolametti and Dorothy Girolametti comply with an earlier stipulated judgment and (4) failed to conclude that the judgments in this case were void for lateness. We disagree with those claims and affirm the judgments of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. The parcel of land at issue is a long and narrow one-half acre strip located in the town of Ridgefield, running north from a major thoroughfare. The southernmost portion of the parcel is situated to the west of commercial property owned by the defendant, and to the east and southeast, respectively, of properties owned by the Girolamettis and the plaintiffs Navio J. Ligi and Ridea R. Ligi. The Girolametti property houses shops and an apartment building, and the Ligi property is residential. Further north, the parcel is bordered on both sides by other residential properties. The parcel is composed of a central paved portion that long has been used for travel by the public, and the narrow strips of land running along both sides of the paved portion. It is known to area residents as “Roberts Lane.” It is undisputed that the defendant owns the fee to the entire parcel. The parties differ as to that portion of the parcel over which the defendant dedicated an easement to the town for use as a public highway. The plaintiffs contend that the entire parcel was so dedicated and, thereafter, accepted by the town, while the defendant argues that the public highway consists of only the paved, traveled portion and not the strips to either side thereof.

The disputed dedication resulted from a stipulated agreement between the defendant, the Girolamettis and the town (stipulation), executed and reduced to judgment in January, 1980. The stipulation was intended to settle a lawsuit brought by the defendant against the Girolamettis regarding drainage from the Girolametti property onto the defendant’s property. The stipulation states in relevant part “[t]hat . . . John J. Girolametti and Dorothy Girolametti shall dedicate to the extent allowed by zoning and planning regulations for its buildings that portion of their property abutting Roberts Lane to be a portion of the public highway” and “[t]hat the . . . Town of Ridgefield shall call a meeting for the acceptance of Roberts Lane as a public road within a reasonable time, and that the First Selectman of Ridge-field recommend acceptance of the road.”

A map filed in the town land records in 1967 depicts the parcel and the adjoining properties. The boundaries of the parcel are shown in metes and bounds. Within and generally parallel to those boundaries are two dotted lines representing the paved, traveled portion of the parcel. The parameters of the paved, traveled portion are not shown in metes and bounds. Inscribed between the two dotted lines is “ROBERTS LANE.”

On December 3, 1980, after notice to residents, the town’s board of selectmen held a meeting at which the first selectman recommended that “Roberts Lane” be accepted as a town road. No opposition was raised to that recommendation, and the board voted in favor of it. The town continued to maintain the paved portion of the parcel, as it had even prior to the stipulation.

In 1995 or 1996, the defendant erected a fence along the western border of the parcel, completely fencing off the Girolamettis’ property. There is an opening in the fence suitable for pedestrians located on abutting property to the north of the Girolametti property. The defendant later constructed brick pillars immediately adjacent to the paved portion of the parcel and placed signs on the pillars indicating that the road was private.

The town thereafter brought an action against the defendant seeking a judgment determining the rights of the parties to the parcel, and requesting declaratory and injunctive relief declaring the entire parcel a public highway and authorizing the town to remove any obstructions thereto. The defendant filed a counterclaim requesting a judgment declaring that the town has an easement for public use over only the paved and traveled part of the parcel. Subsequently, the Girola-mettis and the Ligis brought a separate action, claiming that the entire parcel had been dedicated and accepted as a public highway, and that the defendant’s fence was obstructing and interfering with their private easement rights to access the highway. See footnote 1. They requested monetary damages and an injunction preventing the defendant from blocking their access to the highway. The defendant counterclaimed, alleging that the Girolamettis had failed to adhere to the terms of the stipulation in that they never had dedicated any of their land to the town and the town never had accepted the same, and requesting an order requiring full compli-anee with the stipulation. The defendant further alleged several special defenses.

The two actions were consolidated and tried before the court, Mihalakos, J., in January, 1998. In a memorandum of decision dated December 1, 1999, the court concluded that the entire parcel had been dedicated and accepted as a public highway, and rejected the defendant’s special defenses and its claim that the Giro-lamettis did not comply with the stipulation. The court permanently enjoined the defendant from obstructing access to the highway and ordered it to remove the fence along the boundary line. On December 6, 1999, the defendant filed a motion to set aside the judgments as void for lateness under General Statutes § 51-183b. After a hearing, the court, Radcliffe, J., denied that motion, finding that the parties had waived any objection to the lateness of the judgments. This appeal followed. Additional facts will be provided where necessary.

I

The defendant claims first that the court improperly concluded that the entire parcel of land at issue was dedicated by the defendant and accepted by the town as a public highway. We disagree.

“From early times, under the common law, highways have been established in this state by dedication and acceptance by the public. . . . Dedication is a appropriation of land to some public use, made by the owner of the fee, and accepted for such use by and in behalf of the public. . . . Both the owner’s intention to dedicate the way to public use and acceptance by the public must exist, but the intention to dedicate the way to public use may be implied from the acts and conduct of the owner, and public acceptance may be shown by proof of the actual use of the way by the public. . . . Thus, two elements are essential to a valid dedication: (1) a manifested intent by the owner to dedicate the land involved for the use of the public; and (2) an acceptance by the proper authorities or by the general public. ... No particular formality is required in order to dedicate a parcel of land to a public use; dedication may be express or implied. . . . Whether there has been a dedication and whether there has been an acceptance present questions of fact.” (Citation omitted; internal quotation marks omitted.) Drabik v. East Lyme, 234 Conn. 390, 394, 662 A.2d 118 (1995). “Likewise, the determination of the exdent to which there has been an acceptance of a street involves a question of fact.” Whippoorwill Crest Co. v. Stratford, 145 Conn. 268, 272, 141 A.2d 241 (1958).

“Our review of the factual findings of the trial court is limited to a determination of whether they are clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings.” (Citations omitted; internal quotation marks omitted.) Drabik v. East Lyme, supra, 234 Conn. 394-95.

The court in this case based its findings that there had been a dedication and acceptance of the entire parcel on the terms of the stipulation and the other evidence presented. “A judgment rendered in accordance with the stipulation of the parties is to be construed and regarded as a binding contract. . . . Construction of such an agreement is an issue of fact to be resolved by the trial court as the trier of fact, and subject to our review under the clearly erroneous standard. . . . The construction and interpretation of the agreement necessarily depends upon the intent of the parties as manifested by the language of the agreement.” (Citations omitted; internal quotation marks omitted.) Albrecht v. Albrecht, 19 Conn. App. 146, 152, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989). “Where the language of the agreement is unclear, the trier of fact must look to other factors to determine the parties’ intention. A determination as to the parties’ intent requires the drawing of an inference from other facts. Where the trier of facts draws such an inference, its finding will not be disturbed unless it is unsupported by the facts or is otherwise unreasonable.” Mihalyak v. Mihalyak, 11 Conn. App. 610, 616, 529 A.2d 213 (1987).

The stipulation in this case provided that the town would take the actions required “for the acceptance of Roberts Lane as a public road . ...” A necessary implication of this term is that the defendant intended to dedicate “Roberts Lane” as a public road. Because the stipulation did not contain any precise description of the property that comprised “Roberts Lane,” the court necessarily considered other factors to infer the extent to which the defendant intended to dedicate the parcel.

The map on file in the town’s public records showed the parcel at issue and described it as “ROBERTS LANE.” Although that inscription appeared between the dotted lines depicting the paved portion of the parcel, the court reasonably could have inferred, from the lack of precise metes and bounds for the dotted lines, that the inscription was intended to describe the entire parcel. That interpretation is supported by language in the deed that conveyed the parcel to the defendant, which was introduced into evidence at trial. The deed describes both the parcel and the defendant’s commercial property to the east, and references the map in the public records. The deed describes the commercial property’s western boundary as “the private road known as Roberts Lane . . . .” That boundary is shown on the map as a solid line situated to the east of the dotted lines depicting the paved portion. Thus, the language of the deed, read in conjunction with the map, conveys the impression that the strip to the east of the paved portion is encompassed by the name “Roberts Lane.”

Further support for the finding that “Roberts Lane” contemplates the entire parcel is found in the language of the stipulation. First, the stipulation describes the Girolamettis’ property as “abutting Roberts Lane.” The map shows the boundary between the Girolametti property and the parcel as a solid line situated to the west of the dotted lines depicting the paved portion. Thus, the language of the stipulation, read in conjunction with the map, conveys the impression that the strip to the west of the paved portion is encompassed by the name “Roberts Lane.” Second, it would make no sense for the Girolamettis, pursuant to the stipulation, to dedicate a part of their land “to be a portion of the public highway” if the defendant’s dedication was limited to the paved portion of the parcel because a strip of undedi-cated land then would remain between the two portions dedicated to be part of the same public highway.

Later action by the defendant indicates its acknowl-edgement that it had dedicated the entire parcel as a public highway. In 1989, the defendant applied to the town’s zoning authorities for a variance to use commercial property in a manner that, under the town regulations, normally required that the property have frontage on a public road with a minimum width of fifty feet. Relying on the defendant’s representation that the commercial property fronted on a public road with a width of thirty-eight feet, which could not be widened due to the unavailability of additional land, the zoning authorities granted the variance. If, as the defendant now contends, it dedicated only the paved portion of the parcel, the commercial property would not have frontage on a public road, but would be separated from that road by the narrow strip of the parcel it retained. Furthermore, evidence was presented at trial to show that the width of the entire parcel was thirty-eight feet and that the width of the paved portion was something less.

On the basis of the language of the stipulation and the other evidence presented, the court reasonably could have concluded that the defendant intended to and did dedicate the entire parcel to the town for use as a public highway. We therefore conclude that the court’s finding as to dedication was not clearly erroneous.

The defendant argues that the court instead should have credited the testimony of its officer that the dedication was intended to be limited and conditional. We note in that regard that the defendant’s challenge to this factual finding is essentially an attempt to relitigate the facts on appeal. “This court cannot retry the facts or pass upon the credibility of witnesses. . . . Pan-dolphe’s Auto Parts, Inc. v. Manchester, [181 Conn. 217, 220, 435 A.2d 24 (1980)].” (Internal quotation marks omitted.) Drabik v. East Lyme, supra, 234 Conn. 395.

The defendant also argues that the court’s finding as to acceptance was in error because the minutes of the town meeting memorializing the vote to accept referred only to “Roberts Lane” and did not describe the exact parameters of that which was accepted. The defendant thus claims that the town accepted only the paved, traveled portion of the parcel. We disagree because the evidence that the court relied on to conclude that “Roberts Lane” contemplated the entire parcel in the context of the stipulation is of similar applicability here.

Furthermore, despite the defendant’s contention that “[t]here is not a shred of evidence that [the town] had any intention but to accept [only] the paved, traveled portion of the parcel,” the record discloses testimony from a representative of the town indicating that its intent was to accept the entire parcel. Richard J. Fricke, the town’s attorney at the time of the stipulation and a signatory thereto, testified that it was “absolutely” the town’s intent to accept the entire parcel as a public highway. Fricke explained that the town’s standard practice in a road dedication was to accept areas outside the traveled portion for purposes of snow removal, utilities and drainage, and that the town never accepted only the paved part.

Because there was substantial evidence on which the court could base its findings that the entire parcel of land at issue had been dedicated by the defendant and accepted by the town, we reject the defendant’s claim that those findings were clearly erroneous.

II

The defendant claims next that the court improperly failed to conclude that the plaintiffs’ claims were barred by the doctrines of laches, unclean hands and equitable estoppel. We disagree with each of those claims.

A

The defendant first notes that the stipulation that resulted in its dedication of the parcel as a public highway was executed some eighteen years prior to the institution of these actions underlying this appeal. It argues, therefore, that “[i]t is self evident that a delay of eighteen years is unreasonable and inexcusable, and that the defendant was prejudiced by such a delay because of [its] inability to fully reconstruct relevant facts pertaining to whether or not the dedication by the Girolamettis was prohibited by zoning regulations in 1980, whether or not the [town’s] planning and zoning commission had ever considered the matter, and whether or not the board of selectmen accepted the paved road or the entire parcel on which it lies.” The defendant contends further that it will be prejudiced if forced to remove its fence and parking spaces because the spaces are needed to support its uses of its commercial property and the fence is necessary “to protect [the] parking spaces from the unauthorized use by the [Girolamettis] and their tenants.” That argument is not convincing.

“The defense of laches, if proven, bars a plaintiff from seeking equitable relief in a case in which there has been an inexcusable delay that has prejudiced the defendant. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant. ... A conclusion that a party has been guilty of laches is one of fact for the trier and not one that can be made by this court, unless the subordinate facts found make such a conclusion inevitable as a matter of law.” (Internal quotation marks omitted.) Treglia v. Zanesky, 67 Conn. App. 447, 459, 788 A.2d 1263 (2001), cert. denied, 259 Conn. 926, 793 A.2d 252 (2002). We must defer to the court’s findings of fact unless they are clearly erroneous. Drabik v. East Lyme, supra, 234 Conn. 394.

Given the facts and circumstances of this case, a conclusion that the delay in the institution of the actions was inexcusable is not inevitable. Over much of the eighteen year period following the execution of the stipulation, there simply was no reason for any of the plaintiffs to know that the defendant considered its dedication limited to the paved portion of the parcel and, thus, no reason for any of them to bring an action asking the court to declare otherwise. That is because the defendant did not erect the fence until 1995 or 1996, nor did it construct the brick pillars or hang the private road signs until even later. Any difficulty in reconstructing the events and regulatory environment of 1980 was shared by all parties to the actions and did not handicap the defendant disproportionately.

Furthermore, the defendant’s claim that it will be prejudiced by the loss of its parking spaces is meritless because the court did not order that they be removed. There are a number of ways in which the defendant may “protect” its parking spaces, and the defendant still may choose one that does not result in the obliteration of its neighbors’ private easement rights to access the public highway. Therefore, the court did not improperly fail to conclude that the plaintiffs were guilty of laches.

B

The defendant also argues that the court improperly failed to find that the Girolamettis should be precluded from seeking equitable relief because of their unclean hands. We disagree.

The defendant’s claim is that private easement rights should be denied because the Girolamettis “never took action to comply with the 1980 stipulated judgment” in that they “failed to take any action to determine the amount of property that they could dedicate” and because John Girolametti stated at trial that some land could have been dedicated.

“Our jurisprudence has recognized that those seeking equitable redress in our courts must come with clean hands. The doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue. . . . For a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with clean hands. . . . The clean hands doctrine is applied not for the protection of the parties but for the protection of the court. ... It is applied . . . for the advancement of right and justice.” (Citation omitted; internal quotation marks omitted.) American Heritage Agency, Inc. v. Gelinas, 62 Conn. App. 711, 721, 774 A.2d 220, cert. denied, 257 Conn. 903, 777 A.2d 192 (2001). “The party seeking to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in wilful misconduct with regal'd to the matter in litigation. . . . The trial court enjoys broad discretion in determining whether the promotion of public policy and the preservation of the courts’ integrity dictate that the clean hands doctrine be invoked.” (Internal quotation marks omitted.) Id., 722.

In this case, the evidence as to why the Girolamettis did not dedicate any land to the town was conflicting. An attorney that represented the Girolamettis in planning and zoning matters around the time of the stipulation testified that some investigation of the matter of potential dedication had been conducted, in particular the consultation with a town planner who determined that no additional land could be dedicated. Otherwise, the parties submitted differing and inconclusive testimony as to whether the regulations in force in 1980 would have allowed for dedication. John Girolametti testified alternatively that he could have dedicated property, that he could not have and that he still was willing to do so if requested. No evidence was submitted to show that subsequent to the stipulation, the town ever asked the Girolamettis to dedicate any land or that they ever refused to do so. As noted by the court, dedication would have been a “useless act” were nothing required by the town.

It was for the court to weigh the conflicting evidence and to assess the credibility of the witnesses so as to determine the Girolamettis’ intentions. Greene v. Perry, 62 Conn. App. 338, 343, 771 A.2d 196, cert. denied, 256 Conn. 917, 773 A.2d 943 (2001); Bank of Boston Connecticut v. Avon Meadow Associates, 40 Conn. App. 536, 540, 671 A.2d 1310, cert. denied, 237 Conn. 905, 674 A.2d 1329 (1996). On the basis of the foregoing, the court reasonably could have concluded that the Girolamettis did not engage in wilful misconduct such that granting them easement rights would offend the integrity of the court.

Furthermore, we agree with the plaintiffs’ argument that “[t]he road widening provision [of the stipulation] was included for the benefit of the town of Ridgefield, not the defendant,” and the court’s finding that the defendant did not prove that the Girolamettis’ failure to dedicate land caused the defendant any damage. To establish the plaintiffs’ unclean hands, “[t]he wrong must be done to the defendant himself and must be in regard to the matter in litigation.” (Emphasis added; internal quotation marks omitted.) American Heritage Agency, Inc. v. Gelinas, supra, 62 Conn. App. 722. We conclude that the court acted within its broad discretion when it granted the Girolamettis’ request for equitable relief and did not find that request barred by the doctrine of unclean hands.

C

The defendant also argues that the Girolamettis’ claims are barred by the doctrine of equitable estoppel. We disagree.

In support of that claim, the defendant directs us to evidence of discussions between the defendant’s officer and John Girolametti in 1985 regarding the defendant’s proposed construction of planter beds along the boundary between the parcel and the Girolamettis’ property. The defendant argues that “[John] Girolametti took the position that either party had a right to build a fence on the boundary line,” and that the defendant built parking spaces and, in 1995 or 1996, the fence in reliance on Girolametti’s purported assurance.

“The defense of estoppel must be supported by proof of two essential elements: (1) the party against whom estoppel is claimed must be shown to have done or said something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and (2) the other party must be shown to have changed its position in reliance on those facts, thereby incurring some injury. . . . An estoppel is predicated on proof of misleading conduct resulting in prejudice to the other party. . . . The party claiming estoppel has the burden of proof, and whether it has met that burden of proof in a particular case is an issue of fact.” (Internal quotation marks omitted.) Treglia v. Zanesky, supra, 67 Conn. App. 459. We therefore review the court’s finding under the clearly erroneous standard. Drabik v. East Lyme, supra, 234 Conn. 394.

Whether John Girolametti made the statement that the defendant claims and, if so, what he intended when he said it, were factual questions for the court to determine. See Greene v. Perry, supra, 62 Conn. App. 343; Bank of Boston Connecticut v. Avon Meadow Associates, supra, 40 Conn. App. 540. The court was free to reject the defendant’s assertion that ten or eleven years after the purported assurance was made, the defendant proceeded in reliance thereon to construct a fence such as the one it did, one that completely blocks off the Girolametti property and allows pedestrian access only across neighboring property. See Wilson v. Hryniewicz, 51 Conn. App. 627, 633, 724 A.2d 531 (trier may accept or reject all, part or none of witness’ testimony), cert. denied, 248 Conn. 904, 731 A.2d 310 (1999). We cannot say that the court improperly failed to find that the defendant met its burden of proving estoppel.

Ill

The defendant also claims that the court improperly failed to order the Girolamettis to comply with the stipulation. We disagree.

In its counterclaim in the case brought by the Girolamettis and the Ligis, the defendant alleged that the Girolamettis had not dedicated any land to the town, as contemplated by the stipulation, and requested that the court order “full compliance” with the stipulation. In its memorandum of decision, the court found that the Girolamettis did not breach the stipulation* because the town had never requested that they dedicate any land and because they had indicated their continuing willingness to do so if requested. The court found further that the defendant had not proven that it had suffered any damage as a result of the Girolamettis’ failure to dedicate land to the town.

A stipulated agreement is in the nature of a contract. Albrecht v. Albrecht, supra, 19 Conn. App. 152. “Whether there was a breach of contract is ordinarily a question of fact.” Paulus v. LaSala, 56 Conn. App. 139, 153, 742 A.2d 379 (1999), cert. denied, 252 Conn. 928, 746 A.2d 789 (2000). Further, where a breach of contract is alleged, “[t]he amount, if any, of the [defendant’s] actual damages is a question of fact.” Sanitary Services Corp. v. Greenfield Village Assn., Inc., 36 Conn. App. 395, 400, 651 A.2d 269 (1994). “[T]he general rule for the measure of damages in contract is that the award should place the injured party in the same position as he would have been in had the contract been performed . . . .” (Citation omitted; internal quotation marks omitted.) Vespoli v. Pagliarulo, 212 Conn. 1, 3-4, 560 A.2d 980 (1989). We review the court’s findings of fact under the clearly erroneous standard. Drabik v. East Lyme, supra, 234 Conn. 394.

Here, there was conflicting evidence presented as to whether the Girolamettis could have dedicated land and remained in compliance with the town’s zoning regulations. There was testimony that some effort was made to discern whether any dedication was possible, but no evidence was presented to suggest that the town ever requested that the Girolamettis make a dedication or that they had refused to do so. John Girolametti testified that he still would be willing to dedicate land if asked. The parties agreed that the Girolamettis had complied with another term of the stipulation that required them to pay the defendant $5000; see footnote 2; and no other violations of the agreement were alleged. As noted by the court, the defendant did not show how it was damaged by the Girolamettis’ failure to dedicate land to the town. Although the defendant claimed that it had to seek variances for uses of its commercial property that required the property to have frontage on a wider road, there is no evidence that the town ever denied those variances. Thus, the defendant already is in the same position it would have been in had the Girolamettis made a dedication of land to the town.

We conclude that the court’s findings that the Girola-mettis did not breach the stipulation and that the defendant did not sustain damages were not clearly erroneous. Consequently, the court properly declined to issue the requested order for compliance.

IV

The defendant’s last claim is that the court improperly failed to conclude that pursuant to § 51-183b, the judgments in this case were void for lateness. We disagree.

The following additional facts are necessary for our resolution of the defendant’s claim. The cases were tried in January, 1998, and the parties submitted post-trial briefs in February, 1998. In November, 1998, the clerk of the court contacted the parties to request their consent to an extension of time for the rendering of judgment. All of the parties submitted written waivers of the statutory time limit to the court. The attorney for the town worded his waiver letter as follows: “Please allow this letter to confirm that the Plaintiff, Town of Ridgefield, has no objection to granting a 120 day extension relative to [Ridgefield v. Eppoliti Realty Co., CV 95-0322396S].” On December 1, 1999, the court issued a memorandum of decision for both cases. On December 6, 1999, the defendant filed a motion to set aside the judgments as void for lateness. In its December 14, 1999 objection to the defendant’s motion, the town argued that “the totality of circumstances makes it abundantly clear that whatever extension the court might have been requested would have been granted by the [town]” and also stated that the objection was the town’s “formal written consent to the timing of the trial court’s rendering of its judgment.” After a hearing, the defendant’s motion was denied by the court, Radcliffe, J.

In its motion to set aside and on appeal, the defendant argues that the town via its waiver letter consented only to an extension until March, 1999, and, therefore, that the court’s December 1, 1999 judgments are void for lateness. It claims that pursuant to our Supreme Court’s holding in Waterman v. United Caribbean, Inc., 215 Conn. 688, 577 A.2d 1047 (1990), the town’s subsequent consent to the late judgment was ineffective.

Whether a waiver has occurred, is a factual question, reviewable under the clearly erroneous standard. See New Milford Savings Bank v. Jajer, 244 Conn. 251, 261 n.15, 708 A.2d 1378 (1998); Majernicek v. Hartford Casualty Ins. Co., 240 Conn. 86, 96, 688 A.2d 1330 (1997); Statewide Grievance Committee v. Brown, 67 Conn. App. 183, 188, 786 A.2d 1140 (2001), cert. denied, 259 Conn. 919, 791 A.2d 568 (2002); DiBello v. Barnes Page Wire Products, Inc., 67 Conn. App. 361, 371, 786 A.2d 1234 (2001), cert. granted on other grounds, 260 Conn. 915, 796 A.2d 560 (2002) (appeal withdrawn June 26, 2002); Infante v. Mansfield Construction Co., 47 Conn. App. 530, 538, 706 A.2d 984 (1998). Similarly, the question of what the town’s counsel intended in his waiver letter to the court also is a question of fact, subject to the clearly erroneous standard. Bank of Boston Connecticut v. Avon Meadow Associates, supra, 40 Conn. App. 540.

Section 51-183b requires a court to render judgment within 120 days of the completion of trial, but also allows the parties to waive that requirement. See footnote 7. Cases interpreting the statute have established “that the defect in a late judgment is that it implicates the trial court’s power to continue to exercise jurisdiction over the parties before it. . . . We have characterized a late judgment as voidable rather than as void . . . and have permitted the lateness of a judgment to be waived by the conduct or the consent of the parties. . . . Thus, if both parties simultaneously expressly consent to a late judgment, either before the judgment is issued, or immediately thereafter, the judgment is valid and binding upon both parties, despite its lateness. Express consent, however, is not required. If a late judgment has been rendered and the parties fail to object seasonably, consent may be implied. . . . Because consent may be implied from a failure to object seasonably after a delayed judgment has been rendered, these cases do not support the [notion] that § 51-183b invariably requires the prior consent of both parties in order to waive the time limits the statute imposes.

“These implied consent cases establish that an unwarranted delay in the issuance of a judgment does not automatically deprive a court of personal jurisdiction. Even after the expiration of the time period within which a judge has the power to render a valid, binding judgment, a court continues to have jurisdiction over the parties until and unless they object. It is for this reason that a late judgment is merely voidable, and not void.” (Citations omitted; emphasis in original.) Waterman v. United Caribbean, Inc., supra, 215 Conn. 692-93.

In Waterman, as in this case, the trial court contacted the parties prior to judgment and asked them to consent to an extension of time. Id., 690. Both by telephone and by letter, the defendants refused to agree to an extension. Id. The trial court thereafter issued an abbreviated memorandum of decision indicating that its ruling substantially was in favor of the defendants. Id. The defendants then attempted to consent to the late rendering of the judgment. Id. On appellate review, our Supreme Court reversed this court’s holding that the defendants’ belated consent was effective, reasoning that “the defendants’ initial refusal to consent to a late judgment deprived the court of personal jurisdiction over them.” Id., 694. “By their conduct, they made the judgment, when rendered, not merely voidable, but void. Although a voidable judgment may be cured, avoid one may not. The defendants’ execution of a consent following the late judgment’s issuance therefore had no legal effect.” Id.

In this case, the defendant claims that the town’s letter to the court amounted not only to a consent to an additional 120 days in which the court could render judgment, but also to an implicit refusal to consent to any further extensions. Relying on Waterman, the defendant argues that after the initial 120 day extension period had run, the court’s judgment was void rather than voidable, and the town’s subsequent consent to the judgment therefore was ineffective. In so arguing, the defendant asks this court to relitigate the issue of the town’s intent.

At the hearing on the defendant’s motion to set aside the judgment, the town’s attorney stated that he drafted his consent letter using language that was responsive to the request that he had received from the court clerk in the form of a voice mail. In other words, in stating that the town did not object to a 120 day extension, he did not intend to limit the town’s consent to only an extra 120 days, as argued by the defendant. It was established at the hearing that the court’s file did not contain any further correspondence from the town indicating an affirmative refusal to consent once the additional 120 days had expired. The town also noted that it had no reason to refuse to consent to the extension because, having brought its action only for the purpose of obtaining clarification regarding the parties’ rights to the parcel, it really had nothing to lose from a judgment in the defendant’s favor. On the basis of the foregoing, the court found “that there is certainly a waiver here [by the town] either explicitly or by conduct,” and, consequently, denied the defendant’s motion to set aside the judgment.

Because there is evidence in the record supporting the court’s findings that the town did not intend to limit its waiver to an additional 120 days and that it subsequently consented to the further delay in the rendering of the judgments, we conclude that those findings were not clearly erroneous.

The judgments are affirmed.

In this opinion the other judges concurred.

       The other plaintiffs are John J. Girolametti, Dorothy Girolametti, Navio J. Iigi and Ridea R. Ligi, all of whom own property abutting the parcel. We refer in this opinion to the plaintiffs in the second case as the plaintiffs and to the plaintiff in the first case as the town. At trial, the plaintiffs claimed a private easement of access to the parcel, derivative from its status as a public highway. “Connecticut law recognizes that the existence of a public highway creates two easements: the public easement of travel, that permits the general traveling public to pass over the highway at will, and the private easement of access, that permits the landowners who abut the highway to have access to the highway and to the connecting system of public roads.” (Internal quotation marks omitted.) Cohen v. Hartford, 244 Conn. 206, 209-10 n.8, 710 A.2d 746 (1998).

       The stipulation states in full: “The parties agree and stipulate that judgment may be entered in accordance with the following: 1. The defendants John J. Girolametti and Dorothy Girolametti pay the plaintiff [Eppoliti Realty Co.] a total of $5,000 cash at the time this stipulation is signed by all parties and filed with the court. 2. That defendants John J. Girolametti and Dorothy Girolametti shall dedicate to the extent allowed by zoning and planning regulations for its buildings that portion of their properly abutting Roberts Lane to be a portion of the public highway. 3. That the defendant Town of Ridgefield shall call a meeting for the acceptance of Roberts Lane as a public road within a reasonable time, and that the First Selectman of Ridgefield recommend acceptance of 1he road. 4. The plaintiff shall not oppose any action by the defendants in connection with the installation of drainage, and construction of a large complex of shops and apartments, as alleged in paragraph 4 of the complaint, and shall withdraw any conservation commission, wetlands, or planning and zoning objections or opposition, now or in the future, provided that the defendants conform to the special permit which was issued, and the conditions imposed thereon. 5. Judgment in accordance with the above may enter without costs.”

       Pursuant to § 7-3 (h) of the Ridgefield charter, the board of selectmen has the power “[t]o accept, or refuse to accept, roads offered to the town, and to abandon or discontinue town roads . . . .”

       The claim for monetary damages was withdrawn at trial.

       The court allowed that “[t]here may be a technical breach . . . .”

       The defendant claims in its brief that the court’s consideration of that issue within the framework of contract law “completely ignores the nature of the defendant’s claim” because “[t]he defendant did not sue or claim damages for breach.” In neither its posttrial brief nor its appellate brief, however, does the defendant suggest an alternate legal framework for the analysis of its claim. Further, the defendant cites only two cases in its argument for the claim in support of the notion that its request for the court order was timely. We therefore review the issue as the court framed and resolved it.

       General Statutes § 51-1831) provides in relevant part that judges of the Superior Court in civil cases “shall render judgment not later than one hundred and twenty days from the completion date of 1he trial of such civil cause. The parties may waive the provisions of this section.”


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. HECTOR ESTRADA
    (AC 21107)
    Mihalakos, Dranginis, and Hermessy, Js.
    Argued January 15 —
    officially released July 30, 2002

      Pamela S. Nagy, special public defender, for the appellant (defendant).

      Nancy L. Chúpale, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Jeffrey M. Lee, assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Hector Estrada, appeals from the judgment of conviction, rendered after a jury trial, of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), sale of narcotics within 1500 feet of a school in violation of General Statutes § 21a-278a (b), conspiracy to sell narcotics by a person who is not drug-dependent in violation of General Statutes §§ 53a-48 (a) and 21a-278 (b), and conspiracy to sell narcotics within 1500 feet of a school in violation of General Statutes §§ 53a-48 (a) and 21a-278a (b). The judgment of the trial court is affirmed in part and reversed in part.

The defendant claims that the court improperly (1) found that there was sufficient evidence to support his conviction of sale of narcotics in violation of §§ 2 la-278 (b) and 21a-278a (b), (2) found that the drugs tested by the state laboratory were the same drugs purchased by an undercover officer, (3) admitted into evidence two glassine bags that tested positive for heroin, (4) instructed the jury on the definition of sale pursuant to General Statutes § 21a-240 (50) and (5) violated his constitutional rights to be free from double jeopardy by convicting and sentencing him for two different crimes: Conspiracy to sell narcotics and conspiracy to sell narcotics within 1500 feet of a school, where he argues that the two conspiracies arose from the same incident and were the same offense for double jeopardy purposes.

The jury reasonably could have found the following facts. On July 27, 1999, an undercover officer, Edward Azzaro, a member of the statewide cooperative crime control task force, posed as a drug addict as part of an undercover operation to buy illegal narcotics. As part of this operation, Azzaro, dressed in street clothing, was given two ten dollar bills and was driven in an unmarked police vehicle to a location a short distance away from Poplar Street and Grand Avenue in New Haven. The target of the undercover operation at Poplar Street and Grand Avenue was a suspected drug dealer named Wilfredo Rivera, who was known frequently to wear a blue shirt with a large star on it. When Azzaro arrived at the surveillance area, he did not see Rivera, but he did see the defendant exiting a store on the comer of Poplar and Grand. The two men made eye contact, and the defendant asked Azzaro, “How many do you want?” Azzaro interpreted the question to mean how many individually wrapped pieces of narcotics did he want to purchase. Azzaro responded, “Two.” The defendant then offered to give Azzaro a “deal” by selling him a “bundle,” which is normally ten to fifteen pieces of individually wrapped cocaine or heroin, for sixty dollars. Azzaro responded that he had only twenty dollars. The defendant replied that that was not enough and said that he would be around for an hour.

After their conversation ended, Azzaro walked down Grand Avenue, toward a prearranged pickup area. As he was walking, he saw the target of the surveillance, Rivera. Rivera and Azzaro made eye contact. Rivera asked Azzaro if he wanted “dope,” a street term for heroin, to which Azzaro replied affirmatively. Rivera then said, “Yes,” and gestured for Azzaro to follow him back toward Poplar Street. As the two walked back toward Poplar Street, Rivera was looking around in a manner that led Azzaro to believe that Rivera was searching for someone. Rivera began to walk down a side street, but stopped when he saw the defendant. Rivera then changed direction and began to walk ahead of Azzaro toward the defendant. Rivera walked up to the defendant, and the two walked side by side for a few seconds. The detectives, who were videotaping Azzaro, Rivera and the defendant, caught on film the defendant’s right hand pass next to Rivera’s left hand. The videotape also showed that prior to this, Rivera was swinging his arms with his hands open.

At trial, Azzaro testified that he believed that the defendant had given Rivera narcotics during that “contact,” even though he did not personally witness the transfer of narcotics from the defendant to Rivera, and did not know if Rivera possessed drugs when he first encountered him. After Rivera’s left hand passed next to the defendant’s right hand, Rivera immediately turned around, and Azzaro saw two glassine bags in Rivera’s left hand where previously he had seen none. Rivera handed Azzaro the bags, and Azzaro gave him the twenty dollars. Inside the bags was a white powdery substance that later tested positive for heroin.

The videotape revealed that, as Azzaro was leaving the area, Rivera walked back to the defendant and, after briefly talking to him, took money out of his pants pocket and tried to give some of it to the defendant. The defendant did not take the money, but gestured for Rivera to follow him around the comer to the side of a building. The defendant was not arrested that day.

The area of Poplar Street and Grand Avenue where the defendant, Rivera and Azzaro exchanged the heroin was less than 400 feet from the real property comprising a public elementary school. Additional facts will be set forth as necessary.

I

The defendant first argues that the court improperly found that sufficient evidence existed to convict him of sale of narcotics in violation of §§ 21a-278 (b) and 21a-278a (b). Specifically, the defendant claims that the court improperly denied his motion for a judgment of acquittal because the evidence presented at trial was insufficient to prove beyond a reasonable doubt that there was a delivery of drugs from the defendant to Rivera and an exchange of money from Rivera to the defendant. We disagree.

Initially, we note that to the extent that this sufficiency claim is unpreserved at trial, it is reviewable pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).* 1*3** “Unpreserved sufficiency claims are reviewable on appeal because such claims implicate a defendant’s federal constitutional right not to be convicted of a crime upon insufficient proof. . . . Our Supreme Court has stated that Jackson v. Virginia, [443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)], compels the conclusion that any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding.” (Citation omitted; internal quotation marks omitted.) State v. Jefferson, 67 Conn. App. 249, 254, 786 A.2d 1189 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 2002. Thus, we conclude that there is no practical reason for engaging in a Golding analysis of a claim based on the sufficiency of the evidence, and we will thus review the defendant’s challenge to the sufficiency of the evidence as to his conviction of sale of narcotics in violation of §§ 21a-278 (b) and 21a-278a (b) as we do any properly preserved claim. See id.

“In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . The scope of our factual inquiry on appeal is limited. This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . . [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. ... In this process of review, it does not diminish the probative force of the evidence that it consists . . . of evidence that is circumstantial rather than direct.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Lewis, 67 Conn. App. 643, 646, 789 A.2d 519 (2002).

Construing the evidence in the light most favorable to sustaining the verdict, we conclude that despite the fact that Azzaro did not testify that he saw the defendant actually hand the narcotics to Rivera, the jury reasonably could have inferred from the videotape of the “contact” between Rivera’s left hand and the defendant’s right hand, which also showed the appearance of two glassine bags in Rivera’s hand immediately after the “contact,” that the defendant had given Rivera the two glassine bags that later tested positive for heroin, and that this and other evidence was sufficient to establish the defendant’s guilt beyond a reasonable doubt. The lack of direct evidence of the transfer does not make the jury’s determination any less logical or reasonable. The circumstantial evidence of the transfer can be and is a proper basis for the jury’s determination that the defendant was guilty beyond a reasonable doubt. Accordingly, the judgment is affirmed as to this claim.

II

The defendant next argues that there was insufficient evidence that the two glassine bags tested by the state toxicology laboratory were the same ones purchased by Azzaro during the undercover operation. Specifically, the defendant argues that the state did not establish a proper chain of custody to prove the identity of the bags. We are not persuaded.

Initially, we note that the defendant did not preserve this claim during trial and now seeks to prevail on appeal pursuant to State v. Golding, supra, 213 Conn. 239-40. We will review the defendant’s claim because the record is adequate and the claim is of constitutional magnitude. The defendant cannot prevail on this claim, however, because he fails to satisfy the third prong of Golding, in that he has failed to show that the alleged constitutional violation clearly existed and clearly deprived him of a fair trial.

On appeal, the defendant argues that the state had to establish an unbroken chain of custody in order to prove that the two glassine bags tested were actually those purchased by Azzaro. The defendant maintains that the state did not meet this burden and that there was a gap in the chain of custody, which breaks the link to the defendant and mandates that the charges against him be vacated. In response to this claim, the state argues that it has met its burden to proof as to the chain of custody because it demonstrated by a reasonable probability that the glassine bags were not tampered with and, thus, the bags tested were the same bags that Azzaro had purchased from the defendant via Rivera.

Because this claim arises out of an evidentiary ruling made at trial, the following additional facts are necessary to address this claim. During trial, to admit the narcotics into evidence, the prosecution called Azzaro and Richard Pinder, director of the toxicology laboratory for the state department of public health, to establish the chain of custody of the two glassine bags. Azzaro testified that after he had returned to meet the other members of the task force at a predetermined location at the end of the undercover operation, he filled out an evidence tag, placed the two glassine bags that he had received from Rivera in a plastic bag, affixed the evidence tag to the bag and gave it to Detective Antonio Lopez. Azzaro also testified that the evidence was in the same condition at trial as it was when he gave it to Lopez, except for a seal bearing the number 99-C-2596 that had been added by the state toxicology lab after it tested the bags. The state then called Pinder, who testified that lab notes and a lab journal revealed that the lab received a sealed bag containing two glass-ine bags with a powdery substance from Lopez the day after the undercover operation and that the sealed bag shown to him at trial was the same bag that was received and tested by the lab.

The defendant argues that the prosecution’s failure to call Lopez to testify about what happened to the two glassine bags between the time Azzaro gave them to Lopez and the time they were tested by the toxicology lab resulted in a gap in the chain of custody. With respect to this argument, the trial court determined, on the basis of the testimony of Azzaro and Pinder, that the state sufficiently established a chain of custody for the evidence even without the testimony of Lopez. We agree.

“As a general rule, it may be said that the prosecution is not required or compelled to prove each and every circumstance in the chain of custody beyond a reasonable doubt .... It is not necessary for every person who handled the item to testify in order to establish the chain of custody. It is sufficient if the chain of custody is established with reasonable certainty to eliminate the likelihood of mistake or alteration. . . . The state’s burden with respect to chain of custody is met by a showing that there is a reasonable probability that the substance has not been changed in important respects. . . . The court must consider the nature of the article, the circumstances surrounding its preservation and custody and the likelihood of intermeddlers tampering with it . . . .” (Citation omitted; internal quotation marks omitted.) State v. Lowe, 61 Conn. App. 291, 303, 763 A.2d 680 (2001).

In the present case, the court reasonably could have found that the state established the requisite chain of custody based on Azzaro’s testimony that the evidence was in substantially the same condition at trial as it was when he had given it to Lopez. “In State v. Burns, 23 Conn. App. 602, 615, 583 A.2d 1296 (1990), this court concluded that ‘[n]o evidence was presented indicating that the evidence in this case was tampered with. The court was well within the limits of its discretion in reasonably concluding that the evidence was not tampered with, either during transportation or while at the state lab where it would be highly unlikely that “intermeddlers” would tamper with the evidence.’ ” State v. Barnes, 47 Conn. App. 590, 596, 706 A.2d 1000 (1998).

In State v. Barnes, supra, 47 Conn. App. 596-97, this court further held “that mere gaps of time between the various steps in seizing, transporting, delivering, storing and analyzing the evidence, in the absence of an affirmative showing that the evidence was in some way tampered with, misplaced, mislabeled or otherwise mishandled, are insufficient to establish abuse of the court’s discretion in admitting the evidence.” The defendant’s mere speculation in the present case that the evidence was tampered with during the time that Lopez had it in his possession is insufficient to show that the court improperly found that the two glassine bags tested by the state toxicology laboratory were the same bags that Azzaro obtained from the defendant via Rivera. Thus, the defendant fails to satisfy the third prong of Golding because he has failed to prove that a constitutional violation clearly existed and deprived him of his constitutional right to a fair trial.

III

The defendant further argues that the court improperly admitted into evidence the two glassine bags that tested positive for heroin. He claims that the bags were inadmissible because of the same alleged gap in the chain of custody that we addressed in part II of this opinion. As we said in part II, the chain of custody was sufficiently established, and, in light of this fact, the defendant cannot prevail on his claim that the bags were inadmissible. See State v. Johnson, 162 Conn. 215, 229-33, 292 A.2d 903 (1972).

IV

The defendant next argues that the court improperly instructed the jury on the definition of sale pursuant to § 21a-240 (50). Specifically, the defendant claims that the court’s erroneous jury instruction allowed the jury to convict him of sale of narcotics on the basis of evidence of possession alone and, thus, deprived him of his due process rights by lessening the state’s burden of proving each and every element of the charged offense beyond a reasonable doubt. We are unpersuaded.

The defendant did not preserve this claim at trial and now seeks our review under State v. Golding, supra, 213 Conn. 239-40, or the plain error doctrine. See Practice Book § 60-5. “The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial.” (Internal quotation marks omitted.) State v. Dudley, 68 Conn. App. 405, 414, 413-14 n.3, 791 A.2d 661, cert. denied, 260 Conn. 916, 797 A.2d 515 (2002). The defendant’s claim satisfies the first prong of Golding because the record is adequate for review. It also satisfies the second prong of Golding because it alleges an improper jury instruction on an essential element of the crime charged, which is a violation of a fundamental right. See State v. Allen, 216 Conn. 367, 383, 579 A.2d 1066 (1990) (improper jury instruction on essential element of crime violates defendant’s due process rights). Accordingly, we will review the defendant’s claim as the record is adequate for review and the alleged violation is of constitutional magnitude involving the defendant’s constitutional due process right to proper jury instructions on the essential elements of a crime. We conclude, however, that this claim fails to satisfy the third prong of Golding because the defendant has failed to show that the alleged violation clearly exists and clearly deprived him of a fair trial.

“We note, preliminarily, that our analysis of the defendant’s claim begins with a well established standard of review. When reviewing [a] challenged jury instruction ... we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled.” (Internal quotation marks omitted.) State v. Liebowitz, 65 Conn. App. 788, 808, 783 A.2d 1108, cert. denied. 259 Conn. 901, 789 A.2d 992 (2001).

The defendant argues that “the court instructed the jurors that a sale was ‘any form of delivery,’ but then essentially negated its own instruction by saying ‘[i]t is enough if the defendant possessed the drugs for the purpose of any form of delivery, which includes barter, exchange or gift.’ ” He claims that this statement prejudiced his case because it lessened the state’s burden of proof. He argues that as a result of the combination of the court’s statement and Azzaro’s testimony describing the defendant’s offer to sell a bundle, it was reasonably possible that the jury was misled to believe that the testimony about Azzaro’s initial contact with the defendant was enough to satisfy the court’s definition of sale.

The part of the court’s statement to which the defendant objects cannot be judged apart from the jury instruction as a whole. In Barrese v. DeFillippo, 45 Conn. App. 102, 109, 694 A.2d 797 (1997), this court held that “[a jury] charge ... is to be read as a whole without the dissection of its parts. It will not be the source of reversible error absent a determination that the probable effect of the charge was to lead the jury to an incorrect verdict. . . . The charge must be examined to determine whether it fairly presents a case to the jury so that no injustice results and it is not to be examined with a legal microscope, to search for technical flaws, inexact, inadvertent or contradictory statements.” (Internal quotation marks omitted.)

In the present case, the court’s statements regarding the element of delivery, which followed the language now objected to by the defendant, demonstrated that the court did not instruct the jury that it could convict the defendant if it found that he was in possession of narcotics with the intent to deliver them, but rather that to convict the defendant, the jury must find that a delivery occurred regardless of whether the defendant received value for the narcotics or if he delivered the narcotics with the intent to make them a gift.

Reading the instructions as a whole, we conclude that the jury was properly instructed on the crime of sale of narcotics and, thus, no injustice to the defendant resulted by reason of the court’s instructions. The defendant’s claim, therefore, fails to satisfy the third prong of Golding.

V

The defendant next claims that the court improperly failed to conclude that the conviction of conspiracy to sell narcotics and conspiracy to sell those same narcotics within 1500 feet of a school violated his state and federal constitutional rights to be free of double jeopardy. Although the defendant concedes that this claim was not properly preserved at trial, he argues that it nonetheless is reviewable under Golding. We agree.

The record is adequate for review, and the defendant’s claim is of constitutional magnitude because it alleges a violation of the defendant’s fundamental right to be free of double jeopardy. Accordingly, we will review this claim under Golding. In the present case, the defendant’s claim also satisfies the third prong of Golding because it is clear from the record that a double jeopardy violation exists. Finally, the defendant’s claim satisfies the fourth and final prong of Golding review and, therefore, the two sentences cannot stand.

In the interest of judicial conformity, we adopt the remainder of our Golding analysis from our recent opinion, State v. Vasquez, 66 Conn. App. 118, 126-27, 783 A.2d 1183, cert. denied, 258 Conn. 941, 786 A.2d 428 (2001), in which we addressed an identical claim. “Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one. . . . The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute. . . . For such a violation, only the single penalty prescribed by the statute can be imposed. . . . [T]he defendant’s claim satisfies the fourth prong of the Golding analysis because the state has failed to demonstrate harmlessness of the alleged double jeopardy violation beyond a reasonable doubt. The defendant was convicted of two separate conspiracy offenses and ultimately was penalized for both offenses. In a case such as this, however, only the single penalty prescribed by the statute can be imposed.” (Citations omitted; internal quotation marks omitted.) Id., 127. Thus, as this court determined in Vasquez, the court’s sentences on the two separate conspiracy convictions were not harmless and cannot stand.

The judgment is reversed in part and the case is remanded with direction to merge the conviction on the two conspiracy offenses and to vacate the sentence for one of them. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. . .

       General Statutes § 21a-278a (b) provides in relevant part: “Any person who violates section 21a-277 or 21a-278 by manufacturing, distributing, selling, prescribing, dispensing, compounding, transporting with the intent to sell or dispense, possessing with the intent to sell or dispense, offering, giving or administering to another person any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school . . . shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. . . .”

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

         General Statutes § 21a-240 (50) provides: “ ‘Sale’ is any form of delivery which includes barter, exchange or gift, or offer therefor, and each such transaction made by any person whether as principal, proprietor, agent, servant or employee . . . .”

       Other members of the statewide cooperative crime control task force videotaped the area of Poplar Street and Grand Avenue while Azzaro was being dropped off nearby. They continued to videotape the surveillance area the entire time Azzaro was operating undercover there. Their videotape was admitted into evidence at trial as state’s exhibit two.

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.
      “The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial. . . . This court may dispose of the claim on any one of the conditions that the defendant does not meet. . . . State v. Jones, 65 Conn. App. 649, 653, 783 A.2d 511 (2001).” (Internal quotation marks omitted.) State v. Dudley, 68 Conn. App. 405, 414 n.3, 791 A.2d 661, cert. denied, 260 Conn. 916, 797 A.2d 515 (2002).

       See footnote 6.

       See footnote 4.


author: FLYNN, J.

text:
    STATE OF CONNECTICUT v. EDWARD VINES
    (AC 21386)
    Lavery, C. J., and Mihalakos and Flynn, Js.
    Argued March 19 —
    officially released July 30, 2002

      Glenn W. Falk, special public defender, for the appellant (defendant).

      Thomas M. DeLillo, special deputy assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and James Bemardi, senior assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Edward Vines, appeals from the judgment of conviction, following a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2). On appeal, the defendant claims that the trial court improperly restricted his cross-examination of the state’s witness, the victim Darryl Petitt. Specifically, he claims that the court should have allowed him, on cross-examination, to introduce a prior consistent statement of the witness. We affirm the judgment of the trial court.

The record reveals the following pertinent facts. Pet-itt was sitting at the comer of a lane in the Southfield Village housing project in Stamford in the early morning hours of May 11, 1998, shortly after midnight, when he was beaten and robbed of his money and a watch at gunpoint by two men, who were riding in a two toned car driven by a third man. Petitt reported to the police that one of the men had a silver handgun and that the other had a shotgun. Later that same night, the police apprehended three men, the defendant, Torok Johnson and the defendant’s nephew, Curtis Vines, near a two toned car matching the description of the one driven by Petitt’s attackers. Upon searching the defendant, the police found some crumpled bills and the watch that was taken from Petitt that night. The police searched the area around the car and found a shotgun in bushes three feet from the car.

The police brought Petitt to the scene of the arrest. Petitt immediately identified the car as the same one driven by his attackers. After being shown the defendant and the men accompanying him, one at a time, Petitt identified two of them as his attackers and described the role that each played during the robbery. The three men—the defendant, Johnson and Curtis Vines—were arrested, and the defendant was charged with four counts of robbery in the first degree in violation of § 53a-134 (a) (2).

Petitt went to the police station where he gave a voluntary statement. In that statement, Petitt described the robbery in detail, including a description of the two toned car and how he had approached it, as well as the weapons used and the type of watch he was wearing. Finally, he described his assailants and the role that each played in the robbery.

On the basis of evidence it obtained after the initial arrest of the defendant, the state added two counts of tampering with a witness, in violation of General Statutes § 53a-151 (a), to the information already pending against him.

Approximately three months after the robbery, Petitt was approached by Jesse Johnson, the father of Torok Johnson. Torok Johnson was one of the men arrested with the defendant. Jesse Johnson told Petitt that if his son went to jail, “there was going to be trouble.” Johnson also told Petitt that he had better not catch him in the “village” again in an apparent reference to the Southfield Village housing project where the robbery occurred.

Petitt appeared in court to testify at a preliminary hearing on the afternoon of January 26, 1999. While Petitt was outside the courthouse waiting to testify, a man named “Biggy” Smalls approached him. Smalls offered to reimburse Petitt for the value of the stolen items and told Petitt to “leave it alone” and stop coming to court. Shortly thereafter, Petitt took the witness stand, but could not identify the defendant as his assailant. A week after Petitt testified at the preliminary hearing, Smalls approached him again. Smalls threatened to punch Petitt and accused him of lying.

In January, 1999, the defendant sent a letter to Jesse Johnson regarding, among other things, Petitt’s appearance at the preliminary hearing. The defendant wrote that Jesse Johnson should contact Smalls because he was “down for whatever.” The defendant made several telephone calls in late January and early February, 1999, to Jesse Johnson from the correctional facility where the defendant was incarcerated. In those conversations, he gave Johnson instructions similar to the ones in his letter.

In April, 1999, Petitt was taken to the state’s attorney’s office where he gave a statement concerning his contacts with Smalls and Jesse Johnson. Petitt mentioned that, since his January court appearance, he had been incarcerated at the same facility as Torok Johnson, the man he had identified as one of the robbers and the son of Jesse Johnson, who had threatened Petitt.

A jury trial was conducted in May, 1999. During the course of that May, 1999 trial, Petitt testified that he could not remember many of the details of the robbery. In that trial, the defendant was convicted of the tampering charges, but one of the robbery counts was dismissed when an alleged victim of that offense failed to appear in court, and the jury deadlocked on the remaining robbery counts, prompting the court to declare a mistrial as to those counts. In April, 2000, a retrial before a jury of six began on the remaining three robbery charges.

We first discuss the testimony of Petitt on direct examination prior to the introduction of his statement pursuant to the rule of State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). During the April, 2000 trial, Petitt again testified that he was unable to remember many of the details of the night of the robbery, including giving the voluntary written statement to the police, and the coloring of the car driven by his assailants. The state requested a Whelan hearing, and the court excused the jury. Following the voir dire of Petitt outside the presence of the jury, the court granted the state’s request that Petitt’s May 11,1998 statement be admitted pursuant to Whelan. The state’s position was that Petitt’s testimony at the second trial was inconsistent with the statement that he had given to police on the morning of the robbery and that his testimony may have been influenced. Specifically, during the course of the Whelan hearing, one of the state’s arguments was that Petitt might, in fact, remember the details of the robbery, but he was in jail and would have to remain there after the trial.

Next, we turn to the questions posed on direct examination that suggested the possibility that Petitt did, in fact, remember the details of the robbery, but was reluctant to testify thereto. The prosecutor asked several questions in an attempt to suggest to the jury that Petitt was a reluctant witness due to outside influences, but Petitt’s responses were generally not helpful. The prosecutor also asked several questions regarding Petitt’s interactions with the defendant’s friends and relatives. The prosecutor elicited responses from Petitt that in January, 1999, Smalls, after discussing the robbery with Petitt, offered him money.

We mention at this point that, as further evidence of undue influence on Petitt, the court admitted Petitt’s statement, given on April 29, 1999, in the state’s attorney’s office. In that statement, Petitt said that Smalls asked him about the robbery and then told Petitt to “leave it alone and stop coming to court.” Petitt also said, “Biggy said something—that I had lied to him and I said, ‘About what?’ Biggy then said he should punch me in the face.” Finally, the April, 1999 statement described Petitt’s encounter with Jesse Johnson, the father of Torok Johnson. In his statement, Petitt said that he was approached by Jesse Johnson at some point before August, 1998. Petitt said that Jesse Johnson told him that if his son, Torok Johnson, went to jail, “there [was] going to be trouble,” and “he better never catch [Petitt] in the village again.”

We now turn to the defendant’s cross-examination of Petitt. During cross-examination, defense counsel attempted to prove that Petitt’s lack of memory was genuine and not the result of any improper influence on the part of the defendant or his friends. In response to the questions of defense counsel, Petitt testified that on the night of the robbery, he was under the influence of drugs. Petitt also testified that he did not feel intimidated by Smalls in any way. When defense counsel asked, “Now did . . . [Biggy] Smalls or anybody else act toward you in a way that would cause you to change your testimony,” Petitt answered, “No.”

Petitt further testified on cross-examination that during the robbery he was struck in the head and possibly knocked unconscious. He testified that at the time he went to the police station on May 11, 1998, he was still feeling the effects of drugs, alcohol and the blow to his head. Petitt testified that he could not positively identify the men at the scene that night. Finally, Petitt testified that he had made identifications based on the car, not on what the people looked like.

Finally, we turn to defense counsel’s attempt to introduce Petitt’s testimony from the May 12, 1999 trial as a prior consistent statement being offered to rebut an implication, from the introduction of the Whelan statement, that Petitt was “conveniently forgetting his testimony” at trial. We note that the earlier May 12, 1999 trial was the one in which the defendant had been found guilty of witness tampering. Defense counsel attempted to elicit an answer from Petitt that, during the May, 1999 trial, he was unable to remember many of the details of the robbery. The state objected to the admission of this earlier testimony as a prior consistent statement. In effect, defense counsel’s position was that the prior testimony was being offered to counter the Whelan statement and to rebut the state’s position that Petitt was conveniently forgetting the events of the robbery because of fear and undue influence upon him. Defense counsel also claimed admissibility of the prior consistent statement at trial on grounds that the statement rebutted an inference of recent contrivance. The court sustained the state’s objection to the admission of the earlier May, 1999 testimony on the ground that it was a prior consistent statement not made shortly after the robbery. Petitt’s May 12, 1999 statement was made one year after the May 11, 1998 robbery. The defendant was subsequently convicted of the robbery of Petitt and this appeal followed.

We first set forth our standard of review. “It is well established that a trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . The preferring party bears the burden of estabhshing the relevance of the offered testimony. Unless a proper foundation is established, the evidence is irrelevant. . . . Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Citations omitted; internal quotation marks omitted.) State v. Soto, 59 Conn. App. 500, 505, 757 A.2d 1156, cert. denied, 254 Conn. 950, 762 A.2d 906 (2000).

“Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. . . . This deferential standard is applicable to evidentiary questions involving hearsay, generally . . . and to questions relating to prior consistent statements, specifically.” (Citations omitted; internal quotation marks omitted.) State v. Hines, 243 Conn. 796, 801-802, 709 A.2d 522 (1998). Finally, even if the trial court did not engage in the proper inquiry as to the admissibility of evidence, “we are mindful of our authority to affirm a judgment of a trial court on a dispositive alternate ground for which there is support in the trial court record.” (Internal quotation marks omitted.) State v. Pierce, 67 Conn. App. 634, 639, 789 A.2d 496, cert. denied, 260 Conn. 904, 795 A.2d 546 (2002); see also Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978) (where court “reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the trial court’s action if proper grounds exist to support it”).

We now turn to the defendant’s claim. The sole question presented to us on appeal is whether the court improperly excluded Petitt’s testimony from the May, 1999 trial as a prior consistent statement. We conclude that the exclusion of the statement was proper but for reasons other than those relied on by the court. “An out-of-court statement offered to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception to the general rule applies. . . . Prior consistent statements of a witness are generally regarded as hearsay and are not admissible at trial, either for their truth or for the purpose of rehabilitating a witness’ damaged credibility.” (Internal quotation marks omitted.) State v. Lewis, 67 Conn. App. 643, 651, 789 A.2d 519 (2002). “The rationale for excluding this evidence is relevancy. In the normal course of events, the witness’ story is not made more probable or more trustworthy by any number of repetitions of it. State v. Valentine, 240 Conn. 395, 412-13, 692 A.2d 727 (1997).” State v. Harris, 48 Conn. App. 717, 730, 711 A.2d 769, cert. denied, 245 Conn. 922, 717 A.2d 238 (1998).

Although the general rule is that prior consistent statements of a witness are inadmissible, we have recognized certain exceptional situations in which such statements are allowed in evidence; for example, “using the prior consistent statement to rehabilitate a witness who has been impeached by a suggestion of bias or interest arising subsequent to the prior statement; see State v. Jeffrey, 220 Conn. 698, 713-14, 601 A.2d 993 (1991), cert. denied, 505 U.S. 1224, 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992); by a suggestion of recent contrivance; see State v. Dolphin, 178 Conn. 564, 568 n.5, 424 A.2d 266 (1979); by a charge of faulty recollection; see State v. Anonymous (83-FG), 190 Conn. 715, 729, 463 A.2d 533 (1983); or by a prior inconsistent statement. See State v. Torres, 210 Conn. 631, 641, 556 A.2d 1013 (1989). Whether the circumstances support the admission of this evidence is left to the discretion of the trial court. See State v. McCarthy, 179 Conn. 1, 18, 425 A.2d 924 (1979).” State v. Harris, supra, 48 Conn. App. 730-31.

We turn to the court’s analysis of the evidentiary issue presented here. Defense counsel attempted to offer Petitt’s prior consistent statement, his May, 1999 testimony, in order to rebut an inference that undue influence had prompted Petitt’s lack of memory. When the state objected to this evidence, defense counsel responded, “the state’s position or at least as alluded to the fact that . . . particularly by asking that the statement be Whelan’d in here, [is] that [Petitt] is conveniently forgetting his testimony today. What I am trying to show is that in each and every time he has been asked this, he has had difficulty recalling the facts.” The state responded by stating, “I think that the state has shown that he was approached by Biggy Smalls before he testified.” The court considered, however, the admissibility of the prior consistent statement under the test for “faulty recollection.” See, e.g., State v. Anonymous (83-FG), supra, 190 Conn. 729; Thomas v. Ganezer, 137 Conn. 415, 418-21, 78 A.2d 539 (1951). Reading from the commentary to § 6-11 (b) of the Connecticut Code of Evidence, the court stated, “The only conceivable situation in which a prior consistent statement could be admitted to counter a claim of inaccurate memory, which is what we are dealing with here, involves, one, impeachment by a prior inconsistent statement made some time after the event when a witness’ memory has faded. We are not dealing with that. We are dealing with this. Two, support of a witness’ in-court testimony by showing a prior consistent statement made shortly after the event.” The court went on to exclude the May, 1999 testimony as a prior consistent statement on the ground that it was not made shortly after the robbery.

Defense counsel was not, however, attempting to counter a claim of inaccurate memory. Quite the contrary, defense counsel was attempting to prove that Petitt’s memory problems were genuine. The state offered evidence to prove that the witness’ purported lack of memory was not genuine, but rather was a result of the improper influence of the defendant and the defendant’s friends and relatives. In light of the arguments made to the trial court and to this court in the defendant’s brief, it becomes clear that the defendant was trying to counter a claim of undue influence. State v. Harris, supra, 48 Conn. App. 731 (allowing prior consistent statement of state’s witness after defendant suggested that his testimony was result of coaching).

There may be cases in which it is unnecessary to draw a distinction in the analysis for admitting a prior consistent statement in one of the exceptional situations set forth previously. See State v. Hydock, 51 Conn. App. 753, 771-72, 725 A.2d 379, cert. denied, 248 Conn. 921, 733 A.2d 846 (1999). The present case, on the other hand, does require us to make such a distinction. Here, the trial court applied the rule of Thomas v. Ganezer, supra, 137 Conn. 418-21, which requires a prior consistent statement offered to rebut a charge of faulty memory to be made shortly after the event. In the present case, even if the prior consistent statement had been made shortly after the robbery, it would have been irrelevant to the issue of whether Petitt’s testimony was influenced by the actions of the defendant and his friends unless that statement had been made prior to any possible influence. See State v. Hydock, supra, 773.

When a party is attempting to use a prior consistent statement to counter a claim of undue influence, the analysis is similar to that for cases involving a witness with a motive, bias or interest in the case. See State v. Jeffrey, supra, 220 Conn. 713-14; State v. Hydock, supra, 51 Conn. App. 773; State v. Harris, supra, 48 Conn. App. 731. The court should have applied the rule set forth in State v. Jeffrey, supra, 713-14, and State v. Dolphin, supra, 178 Conn. 570-71. “[I]f a witness has been impeached on the basis of bias, motive or interest, prior consistent statements may be admitted to rehabilitate his damaged credibility, if the proponent of the prior consistent statement establishes that it was made before the alleged bias, motive or interest arose. State v. Dolphin, [supra, 570-71].” State v. Jeffrey, supra, 713-14. As Wigmore has noted: “A consistent statement, at a time prior to the existence of a fact said to indicate bias, interest, or corruption, will effectively explain away the force of the impeaching evidence; because it is thus made to appear that the statement in the form now uttered was independent of the discrediting influence.” 4 J. Wigmore, Evidence (Chadbourn Rev. 1972) § 1128, p. 268.

The defendant, as the proponent of the prior consistent statement, would have the burden of showing that the statement was made before the alleged influence occurred, so as to show that the witness’ testimony was not the result of undue influence. See State v. Jeffrey, supra, 220 Conn. 714 (placing the burden on proponent of prior consistent statement to prove statement made before motive to falsify had arisen). The defendant made no such showing. There was ample evidence on the record before the court to support the conclusion that the witness was subjected to undue influence on several occasions before his testimony in the first trial on May 12,1999. The threats made by Torok Johnson’s father, Jesse Johnson, in 1998 and the offer of money and orders of Smalls to “leave it alone and stop coming to court” made in early 1999 preceded Petitt’s testimony in the May, 1999 trial in which Petitt indicated an inability to remember or recall events. Furthermore, the defendant was convicted of witness tampering in the May 12, 1999 trial. The May, 1999 consistent statement of Petitt, thus, would not have been admissible evidence on the issue of whether Petitt’s lack of memory was the result of undue influence, because the defendant, who offered the prior consistent statement, failed to sustain his burden of establishing that it was made prior to the alleged undue influence or the time that any bias, motive or interest had arisen, as Dolphin requires. See State v. Dolphin, supra, 178 Conn. 570-71.

We conclude that the trial court reached the correct conclusion in excluding the prior consistent statement, although on mistaken grounds. We therefore sustain the judgment of the trial court because there is a dispositive alternate ground for which there is support in the record. See State v. Pierce, supra, 67 Conn. App. 639.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant framed his arguments, both in this court and at trial, as being supported by the rules of evidence. The defendant has not claimed that the restriction imposed by the court on his cross-examination of Petitt amounted to a violation of the defendant’s constitutional right to confront the witnesses against him pursuant to the sixth amendment to the United States constitution. See State v. Jones, 46 Conn. App. 640, 646, 700 A.2d 710 (“[e]very evidentiary ruling that denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error”), cert. denied, 243 Conn. 941, 704 A.2d 797 (1997). Therefore, because the potential constitutional aspect of the defendant’s claim was neither raised nor briefed by the defendant, we consider that issue waived. See Practice Book § 60-5; State v. Prioleau, 235 Conn. 274, 294-95, 664 A.2d 743 (1995) (refusing to analyze claim where defendant failed to provide any legal analysis).

       The defendant was also charged with the robberies of Carlos Medina, Damian Addison, and a fourth victim, who was not identified in the record. These robberies occurred on the evening of May 10, 1998. The fourth count was dismissed when Ihe victim failed to appear in court to testify. After the first trial ended in a mistrial, the second jury acquitted the defendant of robbing Medina and Addison.

       That voluntary statement was later admitted in the defendant’s trial pursuant to State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

       Before the jury, the prosecutor asked Petitt, “Is there a reason why you don’t want to tell us what happened that night?” Petitt answered, “I don’t remember everything that happened that night.” After the May 11, 1998 statement was admitted as a full exhibit and was published to the jury, the prosecutor brought out testimony from Petitt that he was incarcerated. The prosecutor also asked Petitt, “What happens to people in jail that testify at a court case,” to which he responded, “I don’t know.”

       This evidence was offered by defense counsel, presumably because some of the statements contained therein could rebut the inference that Petitt was actually influenced by the actions of Smalls or Jesse Johnson.

       When the parties were arguing at trial as to the admissibility of the prior consistent statement, the defendant made passing reference to “recent contrivance. ” Although a prior consistent statement may be used to counter a claim of recent contrivance; State v. Ouellette, 190 Conn. 84, 98, 459 A.2d 1005 (1983); it is clear from the record that the defendant was offering the statement to counter a claim of undue influence.
      The two doctrines are distinguishable. A claim of undue influence will involve a situation in which the statement’s opponent offers evidence that, prior to trial, the witness’ testimony may have been affected by other persons. See State v. Harris, supra, 48 Conn. App. 731. On the other hand, “ ‘[t]he charge of recent contrivance is usually made, not so much by affirmative evidence, as by negative evidence that the witness did not speak of the matter before, at a time when it would have been natural to speak; his silence then is urged as inconsistent with his utterances now, i.e., as a self-contradiction .... The effect of the evidence of consistent statements is that the supposed fact of not speaking formerly, from which we are to infer a recent contrivance of the story, is disposed of by denying it to be a fact, inasmuch as the witness did speak and tell the same story . . . .’ 4 Wigmore, Evidence (Chadbourn Rev.) § 1129, pp. 270-71 . . . .” State v. Ouellette, supra, 190 Conn. 98.

        Because the doctrine of recent contrivance is not the same as undue influence, and because the issue of recent contrivance was not briefed by the defendant on appeal, that issue is deemed waived. See State v. Nieves, 65 Conn. App. 212, 215-16 n.4, 782 A.2d 203 (2001).