author: Dupont, C. J.

text:
    State of Connecticut v. Gilbert Treat
    (14069)
    Dupont, C. J., and Foti and Heiman, Js.
    Argued June 5
    decision released August 15, 1995

      Deborah DelPrete Sullivan, assistant public defender, for the appellant (defendant).

      Lisa Herskowitz, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James G. Clark, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the judgment of the trial court revoking his probation and committing him to the custody of the commissioner of correction. The trial court imposed the seven years suspended portion of a ten year sentence that the defendant had received for the conviction of two counts of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (2). The defendant claims that the trial court (1) failed to use the proper standard of proof in determining whether the defendant was in violation of probation pursuant to General Statutes § 53a-32, (2) lacked sufficient evidence to support its finding of violation of probation, and (3) abused its discretion by revoking the defendant’s probation. We affirm the judgment of the trial court.

Certain facts are relevant to this appeal. After serving three years of his sentence, the defendant was released from incarceration and began his probation on August 30, 1991. The defendant was not initially required to receive sex offender treatment as a condition of his probation. On October 9, 1991, the defendant’s probation officer filed a motion to modify the defendant’s probation to include a special condition requiring the defendant to undergo sex offender treatment. The trial court granted this motion on November 27,1991. The defendant commenced sex offender treatment on March 4,1992, but was discharged from the program on April 8, 1992, for failing to abide by the terms of his treatment contract. The defendant was subsequently arrested pursuant to a warrant and charged with two counts of violation of probation under § 53a-32. The first count charged that the defendant exposed himself. The second count charged that the defendant violated his probation by failing to comply with the requirements of sex offender treatment. The alleged conduct in the first count was not, however, the basis of the trial court’s finding of a violation of probation. The trial court specifically found the basis of the violation was the defendant’s failure to comply with sex offender treatment, a special condition of his probation.

On October 29, 1992, and November 10, 1992, the trial court conducted a violation of probation hearing. The trial court reasonably could have found sufficient evidence to support a finding that the defendant had violated his probation. Patrick Liddle, a staff therapist with the sex offender treatment program, gave the following uncontroverted testimony. Liddle performed an initial evaluation of the defendant in January, 1992, after which the defendant signed a treatment contract. The contract expressly provided notice that any violation of the conditions of the contract could be grounds for termination from the sex offender treatment program at the discretion of the staff. One of the special conditions listed in the contract was “no unsupervised contact with children under 18 years of age.” Liddle testified that the defendant had become increasingly argumentative with the staff and in group therapy. On at least two occasions the defendant bumped into female personnel in the hallways. Furthermore, the defendant insisted that he could do what he wanted, including having contact with children, and that the staff could not tell him what to do.

During treatment sessions, Liddle spoke with the defendant about the unacceptability of his behavior. Liddle informed the defendant that to remain in the program, he would have to honor the contract he had signed proscribing any unsupervised contact with children. The defendant responded by insisting that he had had contact with children, and would continue to have contact with children. The defendant was subsequently discharged from the program on April 8, 1992.

Peter Gandelman, a therapist with the sex offender treatment program at the Veteran’s Memorial Medical Center, also testified at the revocation hearing. Gan-delman testified that the defendant came to his office on September 14, 1992, seeking to be admitted to the sex offender treatment program. Although Gandelman usually spends three or four hours evaluating a sex offender treatment candidate, he was able to determine after only forty-five minutes that the defendant was not an appropriate candidate for community based treatment. Gandelman described the defendant as being in denial that he currently had a problem. During the interview, the defendant acknowledged that he had sexually abused children, including his own son, but then minimized his offenses and did not show any remorse. Gandelman concluded that, in light of the defendant’s history, and his minimization of and refusal to accept responsibility for his crimes, the defendant was a danger to the community and was not an appropriate candidate for community based treatment.

The trial court found that the defendant had violated the special condition of probation requiring sex offender treatment. By finding a violation of probation, and also by finding the defendant to be a risk and danger to society, the trial court impliedly found that the beneficial purposes of probation were not being served; State v. DeMasi, 34 Conn. App. 46, 55, 640 A.2d 138, cert. denied, 230 Conn. 906, 644 A.2d 920 (1994); and therefore imposed the seven years suspended portion of the defendant’s original sentence.

“[U]nder § 53a-32, a probation revocation hearing has two distinct components. . . . The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation. ‘At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation or conditional discharge, shall be advised by the court that he has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in his own behalf.’ General Statutes § 53a-32 (a). If the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant’s probationary status should be revoked. On the basis of its consideration of ‘the whole record,’ the trial court ‘may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence.’ General Statutes § 53a-32 (b). In making this second determination, the trial court is vested with broad discretion. State v. Smith, 207 Conn. 152, 167, 540 A.2d 679 (1988) (‘[a] defendant who seeks to reverse the exercise of judicial discretion, assumes a heavy burden’).” (Citation omitted.) State v. Davis, 229 Conn. 285, 289-90, 641 A.2d 370 (1994).

The defendant claims that the trial court failed to use the proper standard of proof in determining that the defendant violated his probation. We disagree.

In 1992, when the trial court made its decision, the case law defining the proper standard of proof for probation revocation hearings had yet to be enunciated by either this court or our Supreme Court. In State v. Davis, supra, 229 Conn. 285, our Supreme Court held that a trial court may not find a violation of probation unless it finds that the reasonable predicate facts underlying the violation have been established by a preponderance of the evidence at the hearing. That is, “the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation.” Id., 302. The Davis court remanded the case to the trial court for a new revocation hearing because it could not determine from its review of the record what standard of proof the trial court had applied.

Here, the trial court did not indicate what standard of proof it applied at the revocation hearing. Accordingly, the state filed a motion for articulation, asking that the trial court clarify whether it applied the fair preponderance of the evidence standard in determining that the state had proven a violation of probation. The trial court did issue an articulation indicating that, although at the time of the hearing it believed that a reasonable satisfaction standard applied, there was “very little question” at the time of the hearing that a violation of probation had been established and that the violation of probation was proven “by at least a preponderance of the reliable and probative evidence.” (Emphasis in original.)

In reaching this conclusion, the trial court referred to its original decision in which it stated that “there is really very little question in my mind that the state has established a violation of probation here and I will so find that a violation has been established.” Ordinarily, the “litigants and the factfinder must know at the outset of a given proceeding how the risk of error will be allocated, [therefore] the standard of proof necessarily must be calibrated in advance.” Santosky v. Kramer, 455 U.S. 745, 757, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). “Retrospective case-by-case review cannot preserve fundamental fairness when a class of proceedings is governed by a constitutionally defective evidentiary standard.” Id. Here, in the articulation of its original decision, the trial court stated it was convinced at the time it rendered its original decision, as well as in retrospect, that the preponderance of the evidence standard of proof was sustained by the state. We conclude that the trial court applied the proper standard of proof.

The defendant next claims that the trial court lacked sufficient evidence to support its finding of a violation of probation. Again, we disagree.

To support a finding of probation violation, the evidence must “induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation.” State v. Davis, supra, 229 Conn. 302. In making its factual determination, the trial court is “entitled to draw reasonable and logical inferences from the evidence.” Payne v. Robinson, 10 Conn. App. 395, 403, 523 A.2d 917 (1987), aff'd, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988). This court “may reverse the trial court’s initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous.” State v. Scott, 31 Conn. App. 660, 668, 626 A.2d 817 (1993). “A finding of fact is clearly erroneous when there is no evidence 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.” (Internal quotation marks omitted.) Pollio v. Conservation Commission, 32 Conn. App. 109, 115, 628 A.2d 20 (1993). “ ‘In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling. . . .’ ” (Citation omitted.) State v. Villano, 33 Conn. App. 162, 168, 634 A.2d 907 (1993), cert. denied, 229 Conn. 916, 642 A.2d 1212 (1994); State v. Scott, supra, 668.

From the evidence presented in this case, the trial court could reasonably have found that the defendant violated his probation using the fair preponderance of the evidence standard of proof. The trial court stated that the specific violation stemmed from the defendant’s “failure to comply with sex offender treatment which was made a condition of'[the defendant’s] probation.” Such a finding is clearly supported from the testimony of each of the witnesses at the revocation hearing.

The defendant’s third and final claim is that the trial court abused its discretion by revoking the defendant’s probation. The defendant argues that even if the trial court was correct in finding a probation violation, the beneficial purposes of probation were still being served. We are not persuaded.

When reviewing the second component of a probation revocation hearing, an appellate court must determine whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration. State v. Roberson, 165 Conn. 73, 80, 327 A.2d 556 (1973); State v. Johnson, 11 Conn. App. 251, 257, 527 A.2d 250 (1987). “In making this second determination, [whether the defendant’s probationary status should be revoked] the trial court is vested with broad discretion. State v. Smith, 207 Conn. 152, 167, 540 A.2d 679 (1988).” State v. Davis, supra, 229 Conn. 290. “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling . . . [and] [Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) Walker v. Commissioner of Correction, 223 Conn. 411, 414-15, 611 A.2d 413 (1992). In determining whether to revoke probation, the trial court shall consider the beneficial purposes of probation, namely rehabilitation of the offender and the protection of society. State v. DeMasi, supra, 34 Conn. App. 55. “The important interests in the probationer’s liberty and rehabilitation must be balanced, however, against the need to protect the public.” State v. Davis, supra, 297.

General Statutes § 53a-32 (b) provides that revocation shall not be ordered “except upon consideration of the whole record . . . .” The record reveals that the defendant pleaded guilty to two counts of sexual assault in the third degree. A special condition of the defendant’s probation was that he attend sex offender treatment. At the revocation hearing, there was uncon-troverted testimony that the defendant openly expressed an unwillingness to abide by his treatment contract. The trial court had ample evidence before it to support the finding that the beneficial purposes of probation were no longer being served. State v. Carey, 228 Conn. 487, 495, 636 A.2d 840 (1994). The trial court did not abuse its discretion in revoking probation and imposing the suspended portion of the defendant’s sentence.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-72a (a) provides in pertinent part: “A person is guilty of sexual assault in the third degree when such person . . . (2) engages in sexual intercourse with another person whom the actor knows to be related to him or her within any of the degrees of kindred specified in section 46b-21.”

       General Statutes § 53a-32 provides: “(a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge, or may issue a notice to appear to answer to a charge of such violation, which notice shall be personally served upon the defendant. Any such warrant shall authorize all officers named therein to return the defendant to the custody of the court or to any suitable detention facility designated by the court. Any probation officer may arrest any defendant on probation without a warrant or may deputize any other officer with power to arrest to do so by giving him a written statement setting forth that the defendant has, in the judgment of the probation officer, violated the conditions of his probation. Such written statement, delivered with the defendant by the arresting officer to the official in charge of any correctional center or other place of detention, shall be sufficient warrant for the detention of the defendant. After making such an arrest, such probation officer shall present to the detaining authorities a similar statement of the circumstances of violation. Provisions regarding release on bail of persons charged with a crime shall be applicable to any defendant arrested under the provisions of this section. Upon such arrest and detention, the probation officer shall immediately so notify the court or any judge thereof. Thereupon, or upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation or conditional discharge, shall be advised by the court that he has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in his own behalf.
      “(b) If such violation is established, the court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by reliable and probative evidence.”

       The defendant did not testify at the probation hearing.

       Liddle testified further that in light of the defendant’s behavior, it was highly unlikely that the program would accept him back, even if the probation department referred the defendant again, and the defendant agreed to abide by the contract.

       The language of the statute bearing on the state’s burden of proving a violation of probation, General Statutes § 53a-32 (b), is silent with regard to the applicable standard of proof. Also, the Supreme Court of the United States has not yet enunciated a minimum standard of proof applicable to revocation hearings.

       In State v. Davis, supra, 229 Conn. 302, the trial court is quoted as having stated that it was “convinced that it has heard reliable and appropriate evidence to the effect that there has been a violation of the probation condition and so a violation is found.”

       Ordinarily, in civil cases, we may assume that a trial court has applied the fair preponderance of the evidence standard when it has failed to indicate the standard applied. In re Juvenile Appeal (83-AB), 189 Conn. 58, 59, 454 A.2d 271 (1983).

       The defendant filed a motion for review in this court, requesting that we strike the portion of the articulation in which the court opined that the preponderance of the evidence standard was satisfied. We granted review but denied the requested relief. We also denied the defendant’s request to submit a supplemental brief to address “the substantive parameters of a motion for articulation and the impact of the trial court’s articulation on the defendant appellant’s primary issue.” At oral argument, the defendant conceded that the propriety of the motion for articulation was not at issue in this appeal.

       The defendant argues that due process requires that he be given fair warning of acts that may lead to revocation. Here, as a special condition of his probation, the defendant was required to receive sex offender treatment. Prior to receiving this treatment, the defendant signed a treatment contract that stated that any violation of the conditions of the contract may be grounds for termination and that the defendant’s probation officer would be notified immediately of any such violation of the contract. Furthermore, Liddle testified that he spoke with the defendant on more than one occasion about the unacceptability of his behavior. We are satisfied that the defendant had adequate warning of acts that could result in the revocation of his probation and that his right to due process was not implicated.


source: Caselaw Access Project

license: Public Domain

text:
    Homecare, Inc. v. Mary Ann Acquarulo et al.
    (13215)
    Dupont, C. J., and Foti and Lavery, Js.
    Argued June 14
    decision released August 15, 1995

      Michael P. Lawlor, for the appellants (defendants).

      Ann Farrell Leslie, with whom was Gerald E. Farrell, Sr., for the appellee (plaintiff).
   Dupont, C. J.

The defendants appeal from the trial court’s judgment requiring the defendants to pay money damages to the plaintiff for home care services rendered by the plaintiff to the defendants’ mother. The trial court rendered judgment in accordance with findings of fact determined by an attorney fact finder pursuant to General Statutes § 52-549n. The defendants claim that (1) the trial court improperly accepted the fact finder’s findings of fact, and (2) the plaintiff’s action is barred by the statute of frauds, General Statutes § 52-550.

The plaintiff filed an action seeking money damages for the defendants’ alleged failure to pay for past services rendered to their mother, Concetta Santino, and the action was subsequently referred to a fact finder. Practice Book § 546D. The fact finder conducted a hearing to determine whether the defendants expressly or impliedly “obligated themselves, individually to pay for the health care for their late mother, Concetta Santino, or whether the home care undertaken was exclusively the obligation of Mrs. Santino.”

The fact finder found that the defendant Mary Ann Acquarulo initially contacted the plaintiff requesting services for Santino, and that, thereafter, both she and the defendant Catherine Koch had a number of contacts with the plaintiff in order to extend or alter care provider shifts for their mother. The fact finder also found that all bills were sent by the plaintiff to Acquarulo and that neither of the defendants had any intent to defraud the plaintiff. The fact finder concluded by finding that the plaintiff was entitled to recover $3651 as the remaining balance on the account for past services rendered.

The defendants filed an objection to the acceptance of the findings of fact on the ground that the conclusions of fact stated in the finding were not properly reached on the basis of the subordinate facts found or on the basis of evidence presented at the fact-finding hearing. The objection also claimed that the finding did not address the special defense raised by the defendants asserting that the plaintiffs action is barred by the statute of frauds.

In response to the defendants’ objection, the fact finder issued a supplemental finding of fact. In this supplemental finding, the fact finder found the defendants’ special defense regarding the statute of frauds to be without merit because the defendants’ mother was “not a necessary party [to the contract] since there never was any agreement with the plaintiff and the mother . . . .” Accordingly, the statute of frauds was not implicated because the debt in question was that of the defendants, while the mother was merely an incidental beneficiary of the agreement.

Pursuant to Practice Book § 546H, the defendants filed an objection to the acceptance of the supplemental findings of fact. The defendants claimed that the supplemental finding of fact that “there was never any agreement with the plaintiff and the mother” was inconsistent with the testimony of the plaintiffs only witness, Glenda Esposito. Esposito, the plaintiffs comptroller, testified that she was in possession of a written contract signed by the plaintiff and Santino. Neither party, however, sought to introduce the contract into evidence at the hearing, and the precise provisions of the contract are unknown. The trial court overruled the defendants’ objection to the supplemental finding and rendered judgment in favor of the plaintiff.

The defendants first claim that the trial court improperly accepted the fact finder’s determination that an implied contract existed between the plaintiff and the defendants. A contract implied in fact depends on an actual agreement that there be an obligation created by law that imposes a duty to perform, and it may be inferred from words, actions or conduct. Therrien v. Safeguard Mfg. Co., 180 Conn. 91, 94-95, 429 A.2d 808 (1980). “It is not fatal to a finding of an implied contract that there were no express manifestations of mutual assent if the parties, by their conduct, recognized the existence of contractual obligations.” Rahmati v. Mehri, 188 Conn. 583, 587, 452 A.2d 638 (1982). “Whether and on what terms a contractual commitment has been undertaken are ultimately questions of fact which, like any other findings of fact, may be overturned only if the trial court’s determinations are clearly erroneous.” Id.

The trial court’s decision to accept the fact finder’s determination that an implied contract existed was not clearly erroneous. There was undisputed evidence to support that conclusion, including testimony that the defendants made arrangements for the type of service and requested additional service from time to time, and that Acquarulo received the invoices for these services without objection.

The defendants argue that an express contract signed between the plaintiff and Santino superseded any inconsistent implied contract. While, as a matter of law, an express contract may exclude any inconsistent implied contract; H.B. Toms Tree Surgery, Inc. v. Brant, 187 Conn. 343, 347, 446 A.2d 1 (1982); the defendants have failed to produce any factual predicate for application of this principle. The defendants did not produce the contract itself or any evidence showing that an express contract superseded an inconsistent implied contract. The only evidence offered by the defendants was a statement made by an employee of the plaintiff who acknowledged the existence of an express contract between the plaintiff and Santino. The trial court’s acceptance of the fact finder’s finding of an implied contract based on conduct and verbal communications was not clearly erroneous because there was no evidence before the fact finder that an express contract negated the implied contract.

The defendants next argue that the implied contract found by the trial court falls within the statute of frauds and is void. The defendants argue that the implied contract established the defendants as sureties to guarantee the payment of their mother’s debt, and such obligation must be in writing in order to be enforceable. General Statutes § 52-550 (a) (2). The trial court, however, found that the defendants had originally agreed to pay for the services rendered to their mother. Under these circumstances, the statute of frauds is not applicable, and the trial court properly rejected this claim. See Douglas v. Brandt, 99 Conn. 161, 121 A. 179 (1923).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-549n provides: “In accordance with the provisions of section 51-14, the judges of the superior court may make such rules as they deem necessary to provide a procedure in accordance with which the court, in its discretion, may refer to a fact-finder for proceedings authorized pursuant to this chapter, any contract action pending in the superior court in which only money damages are claimed and which is based upon an express or implied promise to pay a definite sum, and in which the amount, legal interest or property in demand is less than fifteen thousand dollars exclusive of interest and costs. Such cases may be referred to a fact-finder only after the pleadings have been closed, a trial list claim has been filed, no claim for a jury trial has been filed at the time of reference, and the time prescribed in section 52-215 for filing a jury trial claim within thirty days of the return day or within ten days after the issue of fact has been joined has expired.”

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

       The plaintiff also sought punitive and exemplary damages for fraud. The plaintiff claims that the defendants were “intentionally perpetuating a fraud” by requesting service for their mother, when they knew their mother lacked assets to pay for these services, and the defendants themselves had no intention to pay for such services.

       At oral argument, the defendants conceded that the amount of this sum for past services rendered was not in dispute.


author: Heiman, J.

text:
    State of Connecticut v. Reginald Rogers
    (13388)
    Dupont, C. J., and Heiman and Hennessy, Js.

      Argued May 1
    decision released August 22, 1995

      Lawrence R. Pellett, special public defender, for the appellant (defendant).

      RichardF. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Stephen J. Sedensky III, assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), two counts of conspiracy in violation of General Statutes § 53a-48, aiding and abetting sexual assault in the first degree in violation of General Statutes §§ 53a-70 and 53a-8, and attempted assault in the first degree in violation of General Statutes §§ 53a-59 and 53a-49. This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court. On appeal, the defendant asserts that the judgment is fatally flawed because (1) he was deprived of his constitutional right to notice of the charges against him, (2) the evidence was insufficient to support a finding of guilty on the charge of aiding and abetting sexual assault in the first degree, (3) the trial court improperly refused to permit the defendant to inquire of a witness what the witness had testified to at a prior trial, (4) the state failed to make available to the defendant a copy of the trial testimony of that witness at a prior trial, and (5) the trial court improperly denied motions for judgment of acquittal with respect to the conspiracy counts. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On August 24,1991, the victim resided in building seventeen, apartment 209, of Father Panik Village in Bridgeport. She lived in that apartment with Michael Epps, her fiancee, and Lois Grace, a person who had been involved in raising Epps. The victim had resided in that apartment since March, 1991. In the evening, the victim was going downstairs to leave the building when she was met at the bottom of the stairs by John Wideman, who was standing on the other side of a closed gate. Wideman complained about the gate’s being closed and locked and asked the victim why she kept closing and locking the gate. The victim then returned upstairs.

Shortly thereafter, the victim again descended the stairway. Wideman was again at the gate, but this time he was accompanied by the defendant and a group of other men, including Maurice McNeil and Kevin Rogers. As the victim was opening the gate, one of the men told her that she could not continue to keep the gate closed. The victim knew, however, that none of the men lived in building seventeen and that they used the hallway of the building to sell drugs. Someone suggested that because the victim continued to keep the gate closed, that she should either be beaten or be required to engage in fellatio with the entire group. The defendant was present when this suggestion was made. The group of men proceeded to force the victim back up the stairs to a landing in the hallway. McNeil removed his belt and began hitting the post on the steps with the belt. The victim began to cry. Kevin Rogers told her not to be stupid, that she was going to be punished for keeping the gate closed and that she was going to perform fellatio on all of them. Someone fondled the victim while she stood with her back against the wall, and she told the men that she did not want to be beaten nor did she want to perform fellatio.

The men surrounded the victim and took her outside. They were looking for Epps so that the victim could be forced to tell Epps that she was “Kevin’s bitch.” The men could not find Epps in the area, however, so Kevin Rogers instructed two individuals who were outside of building seventeen, Nicholas Wardlaw and James Blackwell, to take the victim to building thirteen.

The group moved the victim to building thirteen, with Wardlaw and Blackwell on either side of her and the others about ten feet behind her. The defendant positioned himself behind the victim to her left. The victim did not try to run away because she knew that the men would catch her and beat her severely. She also knew that no one would come to her assistance. The victim had seen both the defendant and Kevin Rogers beat people. She had seen the defendant kick people and beat them with sticks, and she had seen the others jump on people, beat them to the ground, stomp on them and turn their dogs loose on them. In addition, she had seen members of the group hit people with pipes and clubs.

The group took the victim to a third floor apartment belonging to Maria Brown. Brown was Epps’ cousin and was also a former girlfriend of the defendant. Brown was not staying at the apartment at the time, however, the defendant was staying there. The apartment door was opened with a key provided by the defendant. The men took the victim inside the apartment and ordered her into the bathroom. They instructed her to remove her clothes, to take a shower, to come out naked and to lie down on a mattress that was on the living room floor. A discussion ensued as to who was going to “go first.” Scott Sheffield, a member of the group who had just arrived at the apartment, volunteered to be first. Sheffield was told to get on the mattress and pull down his pants. The victim was ordered to perform fellatio on Sheffield. Sheffield began giggling and clowning around and he was ordered to get up from the mattress. Kevin Rogers told Sheffield to go out and get some condoms, because four of the individuals, including the defendant, had indicated that they wanted to engage in vaginal intercourse as well as in oral intercourse with the victim.

The victim was then ordered to perform fellatio on Wardlaw. She again began to cry and was again told by Kevin Rogers to stop or she would be beaten and still be forced to perform sexual acts on her attackers. As she was performing fellatio on Wardlaw, Wright inserted a beer bottle into the victim’s vagina. Kevin Rogers also brought his son, who was approximately eighteen months old, into the room. Kevin Rogers gave the child a piece of ice, instructed him to place it on Wardlaw’s chest, and when the child had done so, ordered the victim to lick it off.

Blackwell was told that he was next. He laid down on the mattress and the victim indicated reluctance to engage in further acts of fellatio. Wright pushed the victim against a stereo wall unit that was in the living room and she bumped her head against the unit. Wright ordered the victim to perform fellatio on Blackwell and she did. While she was performing fellatio on Blackwell, McNeil began to strike the victim on her buttocks with a belt. The defendant told McNeil that he was not beating her properly, took the belt from McNeil and demonstrated how he thought that the belt should be used. McNeil took the belt back from the defendant and began hitting the victim on the buttocks again.

During the time that the victim was being forced to perform fellatio on the men in the apartment, the other men, including the defendant, were drinking beer and watching. In addition, the defendant and the others were jeering at and cheering on the men who were having fellatio performed upon them by the victim.

At the time of the assaults upon the victim, Epps was in building thirteen looking for her. Epps went up to the door of the apartment where the victim was being held and listened at the door. He heard loud music and voices, including the voice of the defendant. Epps heard the men laughing and telling the victim that she should “do it right or she wouldn’t know what happened to her.” Epps also heard the victim crying, and he banged on the door of the apartment.

The victim heard the banging on the door and heard Epps outside the door calling to her. She was told to get up and go into the bathroom, and was then taken into the bathroom and the door was closed behind her. The victim heard someone open the front door and heard Epps’ voice. She also heard someone tell Epps that she was not there. Epps left and the victim was ordered out of the bathroom and directed to perform fellatio on Wideman. After she had become engaged with Wideman, she and the others heard the police outside. The police were talking about building thirteen, apartment 309. The victim’s attackers, realizing that the police were coming upstairs, again ordered the victim to go into the bathroom. While the victim was in the bathroom, she attempted to dress herself. The police did not come to the apartment where the victim was being held. She heard people descending the stairs and heard the police vehicles driving away. When the police left, the defendant and several others also left the apartment. The victim was again directed to come out of the bathroom. When she came out into the room, Wideman insisted that she undress and again perform fellatio on him.

While the victim was performing fellatio on Wide-man, someone knocked on the front door. Wideman opened the door and went outside. He returned shortly thereafter and started cleaning up the area. The victim got dressed and asked if she could leave. Wideman told her that she could leave when he and the others left. The victim asked if they had done anything to Epps, and she was told that they had been unable to find him.

When the victim was finally permitted to leave the apartment, she went looking for Epps and found him at Bridgeport Hospital. She saw him at the hospital at approximately 11 p.m. on the night of the assaults upon her. Epps was at the hospital being treated for injuries that he received from being beaten by the defendant and some of the other persons involved in the sexual assaults upon the victim. Epps claimed that he had a belt placed around his neck and that his assailants tried to take him back to the third floor apartment. When they were unable to do so, they hit him with the belt, kicked him, stomped on him with their feet and beat him for about twenty minutes. Before the men left, the defendant picked up Epps, swung him around in the air and threw him into the back of a car. Epps could not move after the beating and was left bleeding and lying on the ground. A friend of his eventually brought him to the hospital for treatment. Epps and the victim left the hospital that evening and returned to building seventeen. The victim did not call the police to report what had happened to her that evening because she was frightened. She knew that she had to return to the village and she did not have anywhere else to go.

The next day, August 25,1991, while the victim was outside building seventeen, she was accosted by Kevin Rogers, Wright and the defendant. The men were looking for Epps. They told her to tell Epps that they were going to kill him because he was acting as if he were in love and because he had called the police on them the previous evening. They also informed the victim that they were not finished with her and that they were going to come back and “get” her that night. The victim went upstairs and told Epps what had just transpired and Epps decided to call the police. When the police arrived, the victim told them about the sexual assaults upon her the previous evening and the police took the victim to the hospital emergency room. At the hospital the victim told an attending physician and a social worker that she had been sexually assaulted and she described the conduct of the persons involved in the assaults.

I

The defendant first asserts that he was deprived of his constitutional right to fair notice of the charges against him because four informations were filed before the conclusion of the trial. The defendant posits that the filing of seriatim informations caused confusion and constituted a deprivation of his right to notice. We are unpersuaded.

The following additional facts are necessary for the resolution of this claim. On January 15,1991, the state filed the first of four informations. In the first information, the state charged the defendant with committing the following crimes on August 24, 1991, at building thirteen, apartment 309 of Father Panik Village: kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), threatening in violation of General Statutes § 53a-62 (a) (1), unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a), aiding and abetting a sexual assault in the first degree in violation General Statutes §§ 53a-8 and 53a-70 (a) (1), assault in the second degree in violation of General Statutes § 53a-60 (a) (2), and assault in the first degree in violation of General Statutes §-53a-59 (a) (3). On January 21, 1992, the defendant pleaded not guilty to each of the counts of the information. On May 12, 1992, the state filed a disclosure notifying the defendant that all offenses for which he was charged as a principal included charging his liability as an accessory.

On May 14, 1992, the state filed a substitute information against the defendant. See Practice Book § 623. This first substitute information differed from the initial information in that the defendant was further accused of conspiracy to commit the following crimes: kidnapping in the first and second degree; sexual assault in the first and third degree; and assault in the first, second or third degree. In addition, it changed the charge of assault in the first degree to attempted assault in the first degree and deleted the charges of threatening and unlawful restraint.

On August 31,1992, the state filed a second substitute information. This information further refined the charges against the defendant and alleged that on August 24, 1991, at or near buildings thirteen and seventeen in Father Panik Village, the defendant had committed kidnapping in the first degree, conspiracy to commit kidnapping in the first degree, conspiracy to commit sexual assault in the first degree, aiding and abetting sexual assault in the first degree, attempted assault in the first degree, and conspiracy to commit assault in the first, second or third degree. The defendant was again brought to plea on September 1, 1992; he pleaded not guilty to each of the counts in the substitute information. This information was read to the jury at the commencement of trial.

The final substitute information was filed on September 21,1992, the day the jury began its deliberations. See Practice Book § 624. The first three counts of this information were the same as those in the information read to the jury. The final information differed in only two respects: (1) the language “thereby caused physical injury to Michael Epps” was deleted from the count alleging attempted assault in the first degree; and (2) on the charge of conspiracy to commit assault, the state deleted references to assault in the second and third degree, leaving assault in the first degree as the only underlying predicate crime.

The defendant did not object to the filing of any of the informations, nor did he request a bill of particulars to clarify the charges against him. The defendant’s present claim was not, therefore, submitted to the trial court for its determination. Ordinarily, we will not review a claim that was not distinctly raised before the trial court. Practice Book § 4185; State v. Reddick, 33 Conn. App. 311, 331, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994). In addition, the defendant has failed to raise a claim of entitlement to the extraordinary review provided by State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In the absence of such a request, we have, in the past, declined to review a defendant’s claim under similar circumstances. State v. Hermann, 38 Conn. App. 56, 65, 658 A.2d 148 (1995); State v. Carter, 34 Conn. App. 58, 91-92, 640 A.2d 610 (1994), rev’d on other grounds, 232 Conn. 537, 656 A.2d 657 (1995); State v. Johnson, 26 Conn. App. 433, 438, 602 A.2d 36, cert. denied, 221 Conn. 916, 603 A.2d 747 (1992); but see State v. Roy, 233 Conn. 211, 658 A.2d 566 (1995). We, therefore, decline to review the defendant’s claim.

If we were to review the defendant’s claim, however, it would fail. “The sixth amendment to the United States constitution and article first, § 8 of the Connecticut constitution guarantee a criminal defendant the right to be informed of the nature and cause of the charges against him with sufficient precision to enable him to meet them at trial.” (Internal quotation marks omitted.) State v. Spigarolo, 210 Conn. 359, 381, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989), quoting State v. Laracuente, 205 Conn. 515, 518, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988). This constitutional mandate is satisfied “[w]hen the state’s pleadings have informed the defendant of the charge[s] against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and [are] definite enough to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense . . . .’’(Internal quotation marks omitted.) State v. Spigarolo, supra, 381-82. It is enough for the state to set forth the statutory designation of the crimes charged, “leaving to the defendant the burden of moving for a bill of particulars where [he] wishes greater detail regarding the manner in which [those crimes were alleged to have been committed].” State v. Nita, 27 Conn. App. 103, 117, 604 A.2d 1322, cert. denied, 222 Conn. 903, 606 A.2d 1329, cert. denied, 506 U.S. 844, 113 S. Ct. 133, 121 L. Ed. 2d 86 (1992), citing State v. Spigarolo, supra, 382; see also Practice Book §§ 618 and 830 through 833.

In order to establish a violation of the right to fair notice, a defendant must show not only that the information was insufficient, but also that he was in fact prejudiced in his defense on the merits and that a substantial injustice was done because of the lack of specificity in the pleadings. State v. Spigarolo, supra, 210 Conn. 382; State v. Laracuente, supra, 205 Conn. 518-21; State v. Mancinone, 15 Conn. App. 251, 258, 545 A.2d 1131, cert. denied, 209 Conn. 818, 551 A.2d 757 (1988), cert. denied, 489 U.S. 1017, 109 S. Ct. 1132, 103 L. Ed. 2d 194 (1989). “Such a showing amounting to a deprivation of his constitutional right to adequate notice of the charges against him is not made, however, merely by establishing that the presentation of his . . . defense may be more burdensome and difficult.” (Internal quotation marks omitted.) State v. Mancinone, supra, 258.

Here, the defendant has failed to show that the informations were insufficient or that he was prejudiced in any way in the preparation of his defense. The state provided the defendant with specific allegations concerning the date, time, place, victim and nature of each offense charged against him as well as the statutory names of the crimes. Although the final information was filed at the conclusion of trial, the defendant made no objection to its acceptance and the changes far from prejudiced the defendant as it did not add any charges that had not previously been made. See Practice Book § 624. The final information eliminated two crimes from the consideration of the jury as to the predicate offense of conspiracy and removed from the count charging attempted assault in the first degree the allegation that the defendant caused physical injury to Epps. Each information was sufficiently specific to notify the defendant of the charges against him and allowed him adequate notice for the preparation of his defense. See State v. Spigarolo, supra, 210 Conn. 381. Any confusion caused by these minor changes was minimal and cannot support the defendant’s claim that he was deprived of fair notice. See State v. Mancinone, supra, 15 Conn. App. 258. “Because the defendant permitted the filing of the [final] amended information without objection and acquiesced in the proceedings, it necessarily follows that the prophylactic purpose of the rule to require adequate notice has been fulfilled.” State v. Dukes, 29 Conn. App. 409, 420, 616 A.2d 800 (1992), cert. denied, 224 Conn. 928, 619 A.2d 851 (1993).

II

The defendant next asserts that the evidence was insufficient to sustain his conviction of the crime of aiding and abetting sexual assault in the first degree in violation of §§ 53a-70 (a) (1) and 53a-8. The defendant claims that the evidence portrays him as only a passive bystander and posits that the evidence cannot support a finding that he intentionally aided another to commit the crime of sexual assault in the first degree. We are not persuaded.

“We begin our analysis by restating the principles that guide and define the scope of our review. When called on to review a challenge to the sufficiency of the evidence to support a conviction, we undertake a two part analysis. . . . 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.” (Citations omitted; internal quotation marks omitted.) State v. Haggood, 36 Conn. App. 753, 760, 653 A.2d 216 (1995).

“The issue of the intent of the defendant is one of fact to be resolved by the jury. . . . It is the right and duty of the jurors to draw all reasonable and logical inferences from the facts as they find them to exist. . . . The jury has the further duty of determining the credibility of the witnesses and weighing the effects of conflicting evidence.” (Citations omitted.) State v. Patterson, 35 Conn. App. 405, 413, 646 A.2d 258, cert. denied, 231 Conn. 930, 649 A.2d 254 (1994). “We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).

Moreover, in considering the evidence before it, “[j]uries are not required to leave common sense at the courtroom door”; State v. Maxwell, 29 Conn. App. 704, 710, 618 A.2d 43 (1992), cert. denied, 225 Conn. 904, 621 A.2d 287, cert. denied, 509 U.S. 930, 113 S. Ct. 3057, 125 L. Ed. 2d 740 (1993); see State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985); nor are they “expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) State v. Little, 194 Conn. 665, 674, 485 A.2d 913 (1984). Thus, “[i]f evidence, whether direct or circumstantial, should convince a jury beyond a reasonable doubt that an accused is guilty, that is all that is required for a conviction.” State v. Smith, 138 Conn. 196, 200, 82 A.2d 816 (1951); State v. Rivera, 32 Conn. App. 193, 202, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993).

Applying these principles, we conclude that the evidence was sufficient to permit the jury to find the defendant guilty of aiding and abetting the commission of sexual assault in the first degree. Although the defendant did not directly perform or have performed on him sexual acts, the evidence is clear that he aided and abetted the other men to engage in illegal acts of sexual misconduct. “The statute creating accessorial liability requires proof that a person, acting with the mental state required for the commission of an offense, intentionally aided another person to engage in unlawful conduct. General Statutes § 53a-8. If the person has so acted, he may be prosecuted and punished as a principal.” State v. Haggood, supra, 36 Conn. App. 762. “When a defendant is charged as an accessory, the state must prove criminality of intent and community of unlawful purpose. . . . The accessory statute, § 53a-8, sets forth the element of intent as a twofold requirement: that the accessory have the intent to aid the principal and that in so aiding he intend to commit the offense with which he is charged.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Wideman, 36 Conn. App. 190, 202-203, 650 A.2d 571 (1994), cert. denied, 232 Conn. 903, 653 A.2d 192 (1995); see also State v. Harrison, 178 Conn. 689, 694, 425 A.2d 111 (1979); State v. Teart, 170 Conn. 332, 336, 365 A.2d 1200 (1976).

The evidence established that the defendant was not an innocent bystander as he claims to have been. He shared the requisite criminality of intent and community of unlawful purpose of his companions. The defendant was a member of the group of men that accosted the victim at the gate of building seventeen. At the gate, the defendant was present when the victim was threatened to choose between being beaten and performing fellatio on the entire group. The defendant remained with the group as they forced the victim to go with them to building thirteen. The defendant walked behind the victim to her left. While the victim was being moved to building thirteen by the defendant and the others, she knew that no one would come to her aid if she decided to flee. She was fearful and compliant because she had seen her captors, including the defendant, severely beat and kick people.

When the group arrived at building thirteen, the defendant provided the key to unlock the door to an apartment where he had been staying. Inside the apartment, the defendant was one of four persons who indicated that he would not be satisfied with oral sex, but that he desired vaginal intercourse with the victim. One of the assailants was sent out to get condoms for that purpose.

When the victim was forced to perform fellatio on members of the group, the defendant was present and stood by drinking beer and cheering on the others. The defendant and others were laughing and telling the victim to “do it right or she wouldn’t know what happened to her.” At one point, McNeil began striking the victim on the buttocks with his belt. The defendant admonished McNeil for not knowing how to beat the victim, took the belt away from McNeil and demonstrated for him the proper way to employ the belt. McNeil retrieved the belt from the defendant and continued to beat the victim.

The defendant’s claim that the evidence was insufficient to support his conviction is meritless.

Ill

The defendant next asserts that the trial court improperly refused to permit him to ask a witness, W, about the content of W’s testimony at W’s criminal trial on charges arising out of this incident.

Certain additional facts are necessary for an understanding of our resolution of this claim. On September 9,1992, the state filed a motion in hmine to preclude the defendant from asking questions “regarding, or in any way informing the jury of the not guilty verdict in State v. [W], as such verdict is irrelevant.” The motion was argued on September 18,1992, prior to the defendant offering W as a witness. The trial court granted the state’s motion over the objection of the defendant’s that the evidence was relevant. The defendant then asked if he would be able to elicit from W on direct examination the content of his testimony in his prior criminal trial. The trial court stated that the defendant would be able to call W as a witness, but that evidence concerning his testimony at the prior trial would be inadmissible hearsay. The defendant made no attempt to invoke any exceptions to the hearsay rule in order to support a claim of admissibility, but only requested an exception to the trial court’s ruling.

The defendant on appeal now claims that W’s testimony was admissible under State v. Whelan, 200 Conn. 743, 513 A.2d 86 (1986), or alternately under State v. Dolphin, 178 Conn. 564, 525 A.2d 509 (1979). Neither of these claims were made to the trial court. “Appellate review of evidentiary rulings is ordinarily limited to the specific legal issue raised by the objection of trial counsel. See State v. Rothenberg, 195 Conn. 253, 263, 487 A.2d 545 (1985). The purpose of requiring trial counsel to object properly is not merely formal: it serves to alert the trial court to purported error while there is time to correct it without ordering a retrial. Id. . . . We have not yet reached a jurisprudential stage where we require trial judges to be mentally telepathic.” (Citations omitted; internal quotation marks omitted.) State v. Harrison, 34 Conn. App. 473, 482, 642 A.2d 36, cert. denied, 231 Conn. 907, 648 A.2d 157 (1994). We have, therefore, consistently declined to review claims based on a ground different from that raised in the trial court; State v. Ulen, 31 Conn. App. 20, 29, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993); or where the claim has not been raised before the trial court in the first instance. State v. Harrison, supra, 483. “This court will not review issues of law that are raised for the first time on appeal.” State v. Harvey, 27 Conn. App. 171, 186, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992); see also State v. Robinson, 227 Conn. 711, 741, 631 A.2d 288 (1993).

Even if the defendant had raised his claims before the trial court, however, the trial court’s ruling would not be reversed on appeal. “Our standard of review regarding challenges to a trial court’s evidentiary rulings is that these 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. . . . In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) State v. Leonard, 31 Conn. App. 178, 190, 623 A.2d 1052, cert. granted, 226 Conn. 912, 628 A.2d 985 (1993), appeal withdrawn January 7,1994.

The defendant has failed to show either that the trial court’s ruling was incorrect or that he was prejudiced by its ruling in any way. W had not yet testified at the time of the trial court’s ruling and it was impossible to determine whether W’s testimony might become relevant under (State v. Whelan, supra, 200 Conn. 743, which provides an exception to the hearsay rule for prior written and signed inconsistent statements of a witness for substantive purposes, or under State v. Dolphin, supra, 178 Conn. 564, which allows the admission in certain circumstances of prior consistent statements to bolster the credibility of a witness who has been impeached. The defendant cannot, therefore, establish that the trial court abused its discretion or that he was prejudiced by its ruling and cannot prevail on his claim.

The claim of the defendant that the trial court improperly excluded the prior testimony of W must, therefore, fail.

IV

The defendant next asserts that the state withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and General Statutes § 54-86c. We disagree.

The following additional facts are necessary for the resolution of this claim. During discovery, the defendant requested disclosure of all exculpatory evidence in the possession of the state. On September 17, 1992, the defendant informed the trial court that the state had obtained the transcript of the criminal trial against W and argued that the state’s possession of that transcript deprived him of a fair trial. The trial court stated that the defendant’s objection was premature as W had not yet been called as a witness.

On September 18, 1992, the trial court granted the state’s motion in limine to exclude evidence of W’s acquittal. The defendant again brought up the issue of the state’s possession of the transcript of W’s trial and claimed that because the state had a transcript that the defendant did not have, the state had an unfair advantage over the defendant in the preparation of its case. The state argued that having the transcript did not provide it with an advantage because the same state’s attorney prosecuted W and was present to hear W’s testimony. The trial court overruled the defendant’s objection, stating that the transcript would only be of use to the state if W was called as a witness and perjured himself or if W’s testimony was inconsistent with that at the prior trial. The trial court concluded, therefore, that the transcript did not confer a benefit to the state. Subsequently, W testified as a witness for the defendant without reference to his testimony at the prior trial or to the transcript of his prior testimony.

The defendant now claims that the state was obligated to disclose W's transcript under Brady v. Maryland, supra, 373 U.S. 83, and General Statutes § 54-86c. Under Brady, “[t]he state is constitutionally obligated to disclose certain information to a defendant. The principles of due process require the prosecution to disclose exculpatory evidence that is material to a defendant’s guilt or punishment. ... In order to prove a Brady violation, the defendant must show: (1) that the prosecution suppressed evidence after a request by the defense; (2) that the evidence was favorable to the defense; and (3) that the evidence was material.” (Citations omitted; internal quotation marks omitted.) State v. Rasmussen, 225 Conn. 55, 90, 621 A.2d 728 (1993).

Here, the defendant has failed to establish any of these requirements. First, the evidence cannot be considered to have been suppressed. Although the defendant did make a discovery request for exculpatory evidence, the defendant was aware of the existence of the transcript of W’s testimony prior to his being called as a witness. “Evidence known to the defendant or his counsel, or that is disclosed, even during trial, is not considered suppressed as that term is used in Brady.” (Internal quotation marks omitted.) Id., 91, citing State v. Walker, 214 Conn. 122, 126, 571 A.2d 686 (1990), and State v. Dolphin, 195 Conn. 444, 455-56, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985). Second, the defendant has not satisfied the final two requirements; he has failed to establish that the evidence was favorable and material. The defendant never requested an in camera examination of the transcript in order for the trial court to determine whether the material contained therein was exculpatory to the defendant, nor did he request the court to make the transcript an exhibit for identification for appeal purposes for our review. See State v. Harrison, supra, 34 Conn. App. 490.

In addition, § 54-86c requires the disclosure only of exculpatory evidence. The defendant’s failure to establish the exculpatory nature of the evidence precludes his claims under that statute as well.

V

Finally, the defendant asserts that the trial court improperly denied his motion for judgment of acquittal as to the charges of conspiracy. In support of this claim, the defendant asserts that W’s acquittal constituted a bar against the prosecution of the remainder of the alleged coconspirators.

In his motion for judgment of acquittal, the defendant alleged only that the evidence did not reasonably permit a finding of guilty beyond a reasonable doubt. The claim presently advanced by the defendant that the acquittal of one claimed coconspirator constitutes a bar to the prosecution of the others, was not, therefore, raised before the trial court. In addition, the defendant has failed to raise a claim of constitutional violation for which he could seek review under State v. Golding, supra, 213 Conn. 233. We, therefore, decline to review this unpreserved claim. See State v. Her-mann, supra, 38 Conn. App. 65; State v. Carter, supra, 34 Conn. App. 91-92; State v. Johnson, supra, 26 Conn. App. 438; but see State v. Roy, 233 Conn. 211.

If we were to review the defendant’s claim, however, it would fail. Under our law, the acquittal of a sole alleged coconspirator effectuates a bar against the prosecution of the remaining conspirator. State v. Robinson, 213 Conn. 243, 253, 567 A.2d 1173 (1989). This principle stems from the fact that our conspiracy statute; General Statutes § 53a-48; “is bilateral in nature . . . [and] requires a showing that two or more coconspirators intended to engage in or cause conduct that constitutes a crime.” (Internal quotation marks omitted.) State v. Robinson, supra, 250, quoting State v. Grullon, 212 Conn. 195, 199, 562 A.2d 481 (1989). The principle applies, however, only where the claim is that all of the defendant’s alleged coconspirators have been acquitted. Otherwise, the state is not barred from prosecuting the defendant on a charge of conspiracy. State v. Robinson, supra, 253.

Here, the state alleged that the defendant “agreed with one or more persons to engage in or cause the performance of such conduct [as would constitute a crime].” In its charge to the jury, the trial court, therefore, did not limit the actors in the conspiracy to the defendant and W. The defendant did not except to the charge. Moreover, the evidence was clear that many more persons than two were actively involved in the conspiracy. Thus, the acquittal of only one of the group of alleged coconspirators does not mandate the defendant’s acquittal.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-92 provides in pertinent part: “(a) A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually . . . .”

       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 § 53a-70 provides in pertinent part: “(a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-59 provides in pertinent part: “(a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       General Statutes § 53a-49 provides in pertinent part: “(a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       In his brief, the defendant alleges that he was put to plea on only the first of these four informations. Our review of the transcript, however, reveals that the defendant was also put to plea on the third information, the information read to the jury at the commencement of trial. The defendant claims no impropriety in the failure of the state to put him to plea on each of the informations, but limits his claim to an assertion that the number of informations filed against him caused confusion and, therefore, deprived him of his right to fair notice.

       Practice Book § 623 provides: “If the trial has not commenced, the prosecuting authority may amend the information, or add additional counts, or file a substitute information. Upon motion of the defendant, the judicial authority, in his discretion, may strike the amendment or added counts or substitute information, if the trial or the cause would be unduly delayed or the substantive rights of the defendant would be prejudiced.”

       Practice Book § 624 provides: “After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information or indictment at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. An amendment may charge an additional or different offense with the express consent of the defendant.”

       In State v. Roy, supra, 233 Conn. 212, our Supreme Court held that review of the defendant’s unpreserved claim of constitutional error and failure to seek a review under the principles of State v. Golding, supra, 213 Conn. 233, should not have prevented the Appellate Court from reviewing the defendant’s challenge to the sufficiency of the evidence for his conviction. The decision notes that “[i]n the circumstances of this case,” the merits of the defendant’s challenge should have been reviewed. State v. Roy, supra, 212. It is not certain, therefore, whether the principle of Roy applies to all alleged constitutional deprivations or only those that relate to a claim that the evidence was insufficient to convince a trier that every element of an offense has been proven beyond a reasonable doubt. We interpret the words “[i]n the circumstances of this case” to refer to unpreserved sufficiency claims and not to the particular factual situation presented in Roy. We thus follow established precedent for standards of reviewability of all unpreserved claims other than those alleging insufficient evidence to support a conviction.

       The sixth amendment to the United States constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation . . . .”

       The constitution of Connecticut, article first, § 8, provides in pertinent part: “In all criminal prosecutions, the accused shall have a right . . . to be informed of the nature and cause of the accusation ....’’

       We note that this claim was properly preserved for our review because the defendant made a motion to the trial court for a judgment of acquittal based on a lack of sufficient evidence to support a conviction.

       We note that the defendant raises no claim with respect to the propriety of the trial court’s decision to exclude testimony concerning W’s acquittal. The defendant’s claim is limited to whether the trial court properly prohibited him from eliciting from W the content of his testimony at his prior trial.

       General Statutes § 54-86c (a) provides: “Not later than thirty days after any defendant enters a plea of not guilty in a criminal case, the state’s attorney, assistant state’s attorney or deputy assistant state’s attorney in charge of the case shall disclose any exculpatory information or material which he may have with respect to the defendant whether or not a request has been made therefor. If prior to or during the trial of the case, the prosecutorial official discovers additional information or material which is exculpatory, he shall promptly disclose the information or material to the defendant.”

       During argument, the defendant also claimed that the state had obtained the transcript in violation of General Statutes § 54-142a which provides for the erasure of records after a finding of not guilty. The state informed the court that 5 54-142a does not mandate the erasure of records until the expiration of time for appeal and that it obtained the transcript before that time had elapsed. The state added that the defendant had equal access to the transcript during that time period, but neglected to request it. In response, the defendant argued that regardless of the time that the records were erased, the state was entitled to them only in the limited circumstances outlined in § 54-142a (i). The defendant has made no claim on appeal that the records were obtained in violation of the erasure statute, General Statutes § 54-142a.

       We note that the defendant does not assert on appeal a claim that the trial court improperly denied his motion for judgment of acquittal of the conspiracy charges based on the sufficiency of the evidence.

       See footnote 10.


author: Hennessy, J.

text:
    State of Connecticut v. Andrew Owens
    (13584)
    O’Connell, Speae and Hennessy, Js.
    Argued May 2
    decision released August 22, 1995

      Michael J. Isko, assistant public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Corinne Klatt, supervisory assistant state’s attorney, and, on the brief, John A. Connelly, state’s attorney, for the appellee (state).
   Hennessy, J.

The defendant appeals from the judgment of conviction, following a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). The defendant claims that the trial court improperly denied his motion to suppress pretrial photographic identifications because both the array and the procedure surrounding the photographic identifications were unnecessarily suggestive. We affirm the judgment of the trial court.

First, the defendant claims that the array was unnecessarily suggestive in that (1) three of the eight photographs could be eliminated because two individuals were smaller and another individual had longer hair, (2) only the defendant had his eyes closed in the pictures, (3) the defendant’s photograph was in the lower right comer of the array, and (4) the witnesses had only eight pictures from which to choose. Second, the defendant claims that the identification procedure was unnecessarily suggestive because (1) the witnesses were together when each gave a description of the assailant at the scene, (2) the witnesses were in the same room while they waited to see the array and had an opportunity to speak to one another, and (3) at least one witness was told that the defendant was in the array.

On December 14,1993, the trial court conducted an evidentiary hearing on the defendant's motion to suppress. The trial court made the following findings of fact in denying the defendant’s motion to suppress.

There were five identification witnesses: Edward Thomas, Lawrence “Bernard” Saunders, Melissa Min-nifield, Kaishawda Minnifield and Shaneeka Counsel. Each witness saw the defendant confront the victim, Ragar J. Overstreet, at 10 Bronson Street in Waterbury. The witnesses saw the defendant argue with Overstreet for several minutes and then pull out a gun, shoot Overstreet and leave. Each witness had a considerable amount of time to observe the events associated with the shooting of Overstreet, and the attention of each was directly focused on the argument between the defendant and Overstreet prior to the shooting.

The court further found that within hours of Over-street’s death each witness made the photographic identification that now forms the basis of the defendant’s appeal, that each witness viewed the array alone in a room at the police station and that although an officer was present no one led any witness to a particular photograph. After examining the array, which the state introduced into evidence, the court also found that each of the photographs is a reasonable “look-a-like” and that the photographic exhibit was not so unnecessarily suggestive as to violate the defendant’s sixth amendment rights. The trial court concluded that the defendant failed to prove that the challenged pretrial identification procedures gave rise to a very substantial likelihood of irreparable misidentification.

The decision of whether a pretrial identification procedure violates a defendant’s due process rights is an ad hoc determination and involves a two-pronged test. State v. White, 229 Conn. 125, 161, 640 A.2d 572 (1994); State v. Howard, 221 Conn. 447, 453, 604 A.2d 1294 (1992); see also State v. Arena, 33 Conn. App. 468, 474, 636 A.2d 398 (1994). The first prong of the test is whether the identification procedure was unnecessarily suggestive. “An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification.” State v. White, supra, 161-62; States. Arena, supra, 473-74; see Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). If the trial court finds the procedure unnecessarily suggestive, it proceeds to the second prong to inquire whether, under the totality of the circumstances, the identification was nevertheless reliable. State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980). “The defendant bears the burden of proving both that the identification procedures were unnecessarily suggestive and that the resulting identification was unreliable.” State v. White, supra, 162; State v. Payne, 219 Conn. 93, 106, 591 A.2d 1246 (1991).

“Upon review of a trial court’s denial of a motion to suppress, [t]he court’s conclusions will not be disturbed unless they are legally and logically inconsistent with the facts. State v. Cofield, 220 Conn. 38, 44, 595 A.2d 1349 (1991). . . . State v. MacNeil, 28 Conn. App. 508, 512-13, 613 A.2d 296, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992). The trial court’s factual findings will be reversed only if they are clearly erroneous. State v. Jones, 193 Conn. 70, 79-80, 475 A.2d 1087 (1984); State v. Zindros, 189 Conn. 228, 244, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984). State v. MacNeil, supra, 513. Our review of the trial court’s action involves a two part procedure. First, where the court’s legal conclusions are challenged, we must decide if they are legally and logically correct, and if they are supported by the facts set forth in the memorandum of decision. State v. Zindros, supra, 238. Second, if the factual basis of the court’s decision is challenged, we must determine whether the facts in the memorandum are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. Id. State v. MacNeil, supra [238].” (Internal quotation marks omitted.) State v. Fields, 31 Conn. App. 312, 319, 624 A.2d 1165, cert. denied, 226 Conn. 916, 628 A.2d 989 (1993).

“[W]hile it is not this court’s function to find facts; State v. Reagan, [209 Conn. 1, 8, 546 A.2d 839 (1988)]; since the defendant challenges the trial court’s factual and legal conclusions, we may look not only to the facts set forth in its memorandum of decision to see if they are legally and logically correct, but to the evidence in the whole record to see if those facts are clearly erroneous. State v. Zindros, supra, [189 Conn.] 238.” State v. MacNeil, supra, 28 Conn. App. 515. The trial court, in its written memorandum of decision, made detailed factual findings in connection with some, but not all, of the defendant’s claims on appeal. Therefore, we will refer to the evidence produced in support of the trial court’s ruling as necessary in addressing the defendant’s claims. See State v. MacNeil, supra, 515; State v. Martin, 2 Conn. App. 605, 614, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985).

I

The defendant claims numerous deficiencies with the array itself. The defendant argues that these deficiencies created an unnecessarily suggestive array and tainted subsequent in-court identifications. We disagree.

A

The defendant first claims that three of the photographs were of men not similar to him in appearance. He claims that two of the men photographed were smaller than he and that one of the men had longer hair.

Our courts have long embraced the fundamental proposition that “[a]ny array composed of different individuals must necessarily contain certain differences.” State v. Vaughn, 199 Conn. 557, 564, 508 A.2d 430, cert. denied, 479 U.S. 989, 107 S. Ct. 583, 93 L. Ed. 2d 585 (1986); State v. Boscarino, 204 Conn. 714, 726, 529 A.2d 1260 (1987). Therefore, the defendant’s claim must fail if the characteristics of the other individuals in the array “were not so radically different from the defendant’s as to make his photograph distinctive.” State v. Boscarino, supra, 727.

After hearing testimony and argument on the motion to suppress and viewing the array, which was admitted as an exhibit, the trial judge specifically found that “each of the photos is a reasonable ‘look-a-like’ . . . .” Our review of the record, including an examination of the array, reveals that the court’s conclusion was not clearly erroneous, as the defendant was depicted with other men of approximately the same age and physical characteristics. See State v. Boscarino, supra, 204 Conn. 727.

B

The defendant next claims that the array was unnecessarily suggestive because the defendant was the only person in the array with his eyes closed. This fact, however, cannot be said to have suggested to the witnesses that they should pick the defendant’s photograph.

In State v. Fullwood, 193 Conn. 238, 476 A.2d 550 (1984), our Supreme Court analyzed a claim by a defendant that an array was unnecessarily suggestive because the defendant’s picture was the only one in the array that showed the presence of a scar on his head. The court disposed of the claim on the basis that the scar could not “fairly be considered to have been any signal to the witnesses that the defendant was the person whom the police believed to be the perpetrator of the robbery.” Id., 248. In the absence of any evidence that the fact that the defendant’s eyes were closed contributed to the selection of the defendant from the array, Fullwood controls. The fact that the defendant’s eyes were closed in the picture no more signals that the police believed the defendant was the perpetrator of the crime than does the presence of a scar.

C

The defendant next contends that the array highlighted his photograph because it was in the lower right corner of the array. We disagree. This court disposed of a similar claim in State v. Fields, supra, 31 Conn. App. 321, in which the defendant argued that the positioning of his photograph in the upper left corner was unnecessarily suggestive. In Fields, this court affirmed the trial court’s finding that the position of the photograph was not impermissibly suggestive. In this case, the defendant failed to elicit evidence at the suppression hearing that the positioning of the photograph contributed to the selection of the defendant. Furthermore, he fails to offer any explanation as to how this particular positioning suggested that witnesses choose his photograph. State v. Fullwood, supra, 193 Conn. 238. In the absence of other suggestive factors, the positioning of a photograph in an array does not support a claim that the array is unnecessarily suggestive. The trial court could reasonably have found that the defendant failed to meet his burden of proving that the position of the photograph was suggestive.

D

The defendant next argues that the array was unnecessarily suggestive because it contained only eight photographs. We are not persuaded.

“[T]here is no requirement that a certain number of photographs be shown to a witness.” State v. Watson, 165 Conn. 577, 591, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974); State v. Johnson, 28 Conn. App. 645, 649, 612 A.2d 799, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992). Our Supreme Court has upheld the validity of arrays containing fewer than eight photographs. State v. White, supra, 229 Conn. 161 (six photographs); State v. Fullwood, supra, 193 Conn. 247 (seven photographs). We recognize that a relatively small array may enhance the prejudicial effect of any suggestiveness in the array or the identification procedures. See State v. Williamson, 206 Conn. 685, 692-93, 539 A.2d 561 (1988); State v. Austin, 195 Conn. 496, 501, 488 A.2d 1250 (1985) (with numerous photographs suggestive effect diffused and attenuated). This array, however, does not suffer from this ill. As discussed previously, the defendant failed to prove that the array itself was suggestive, i.e., that the defendant stood out from the array like “ ‘one giant among a group of Lilliputians.’ ” State v. Hunt, 10 Conn. App. 404, 408-409, 523 A.2d 514 (1987), quoting State v. Maturo, 188 Conn. 591, 596, 452 A.2d 642 (1982).

II

The defendant also argues that the identification procedures were unnecessarily suggestive. We are not persuaded.

A

The defendant first claims that the identification procedure was suggestive because the witnesses were together when each gave a description of the assailant to the police. The defendant relies on the testimony of one witness, Kaishawda Minnifield, who made general statements at the suppression hearing regarding the events that followed the shooting. Her testimony indicates that all witnesses were present when each gave a description of Overstreet’s assailant to the police.

The record lacks sufficient evidence to determine whether the police questioning immediately after the shooting improperly influenced the identification of the defendant from the array. See State v. Milner, 206 Conn. 512, 537, 539 A.2d 80 (1988); State v. Boscar-ino, supra, 204 Conn. 732. The record does not indicate the extent of the descriptions given, and the defendant offered no evidence tending to indicate that anything said during the group questioning improperly suggested that the defendant’s photograph should be chosen. See State v. Milner, supra, 537; State v. Boscar-ino, supra, 732. The only specific fact that the defense elicited was that Saunders had seen the man before and knew that he went by the name Akeem. The fact that the other witnesses learned that Akeem was now a suspect could not have influenced their choices in the array because the record contains no evidence that anyone other than Saunders had met the defendant. See State v. Boscarino, supra, 732. The trial court could reasonably have found that the defendant failed to meet his burden of proving that the gathering of the witnesses at the scene influenced the selection of the defendant from the photographic array.

B

The defendant also asserts that the procedure was unnecessarily suggestive because the police failed to sequester the potential witnesses while they waited to be questioned, thus giving the witnesses an opportunity to confer about the description of Overstreet’s assailant. “While the failure of the police to sequester potential witnesses invites an exchange of information that could taint a subsequent identification, the failure to sequester does not render a subsequent identification impermissibly suggestive where . . . there is nothing that even suggests that [the] identification was influenced by any discussions that may have occurred.” State v. Milner, supra, 206 Conn. 537; State v. Boscar-ino, supra, 204 Conn. 732.

Although the defendant did elicit evidence that the witnesses spoke about the murder of Overstreet while they waited for their turns to view the array, the defendant did not present evidence that the witnesses spoke about the description of the assailant. In the absence of any evidence indicating that conversations prior to the viewing of the array influenced the selection of the defendant by the witnesses, this claim must fail. State v. Milner, supra, 206 Conn. 512.

C

Finally, the defendant argues that the identification procedures were impermissibly suggestive because the police told one of the witnesses that a picture of the defendant would be in the array. “[C]rime victims presented with a grouping of photographs often surmise that one of the individuals pictured may be a suspect. This does not invalidate the procedure, however, unless the police expressly indicate that a suspect is included in the array. State v. Williams, [203 Conn. 159, 177, 523 A.2d 1284 (1987)].” State v. White, supra, 229 Conn. 163. Even if a court finds that the police expressly informed witnesses that the defendant would be in the array, our courts have found the identification procedure unnecessarily suggestive only when other factors exist that otherwise emphasize the defendant’s photograph. See, e.g., State v. Williamson, supra, 206 Conn. 692-93 (police included recurring photographs of defendant in two relatively small arrays); State v. Davis, 198 Conn. 680, 683, 504 A.2d 1372 (1986) (defendant’s photograph displayed only recent arrest date in array and depicted defendant in same clothes as those worn by robber during crime).

The defendant claims that the police informed Melissa Minnifield, Kaishawda Minnifield and Saunders that the perpetrator’s photograph was in the array. With respect to Melissa Minnifield and Kaishawda Minnifield, the record is clear that this claim must fail. The record reveals that counsel specifically asked Melissa Min-nifield whether the police had told her that the person who had shot Overstreet was in the array and had asked Kaishawda Minnifield whether the police had told her they had a suspect in the. photographs that she had looked at. Each replied, “No.”

With respect to Saunders, the evidence does not support the claim that the police expressly told him that a suspect was included in the array. Furthermore, as discussed previously, the defendant failed to prove that his photograph was otherwise emphasized by the police procedures. See State v. Williams, supra, 203 Conn. 177.

We conclude that each of the claims made by the defendant must fail and that the trial court’s denial of the defendant’s motion to suppress was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) provides in pertinent part: “A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       The defendant further contends that the trial court improperly allowed in-court identifications that he claims were tainted by the pretrial photographic identifications. Because we conclude that neither the array nor the identification procedure is impermissibly suggestive, we need not address the question of whether the in-court identifications were nevertheless reliable. State v. Gant, 231 Conn. 43, 70, 646 A.2d 835 (1994), cert, denied,
      U.S. , 115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995); State v. White, 229 Conn. 125, 164, 640 A.2d 572 (1994).

       Furthermore, having examined the array, this court notes that another person pictured also had his eyes at least partially closed.

       Kaishawda Minnifield testified as follows:
      “Q. Was everybody all together when the police asked about who did it?
      “A. [Yes.]
      “Q. And did everybody contribute their own descriptions of the person who did it?
      “A. [Yes.]
      “Q. And were you all next to each other when you were saying what the guy looked like?
      “A. Yes, we all were.
      “Q. Did anybody indicate to the police at that time that they were familiar with the person who did it?
      “A. [Yes.]
      “Q. Who was that?
      “A. My cousin Bernard.
      “Q. Were you present when he told the police that?
      “A. Yes.”

       The only evidence elicited at the suppression hearing regarding this issue supports the trial judge’s conclusion that the identification procedures were not impermissibly suggestive. The following is an excerpt of the testimony of Shaneeka Counsel concerning what happened while she was at the police station:
      “Q. Did they take you somewhere else? Did they take you to another room?
      “A. Yes.
      “Q. Were there other people in the room?
      “A. Yes.
      “Q. Who else was in that room?
      “A. Me, Shelly, Shaun, Bernard and Sandy.
      “Q. Were you talking to any other people in that room?
      “A. Yes.
      “Q. What were you talking about?
      “A. I don’t know.
      “Q. Talking about what happened the evening before?
      “A. Yes.
      “Q. Talking about who you thought did it?
      “A. No.”

       The defendant relies on the following portion of Saunders’ testimony:
      “Q. Did they make any suggestions to you about looking at the photograph and picking out someone?
      “A. Yes.
      “Q. Tell us what they told you?
      “A. Who was the guy?
      “Q. Pardon?
      “A. They said who was the guy?
      “Q. They asked you who was the guy?
      “A. Yes.
      “Q: Did they tell you you had to pick out someone or that they—
      “A: They said pick out the person who did it.”


author: Per Curiam.

text:
    Dianne S. Lombardo v. Planning and Zoning Commission of the Town of Manchester et al.
    (13674)
    O’Connell, Heiman and Spear, Js.
    Argued April 25
    decision released August 22, 1995

      Steven M. Basche, with whom, on the brief, was Leonard Jacobs, for the appellant (defendant Paul S. Wright).

      Dianne S. Lombardo, pro se, the appellee (plaintiff).

      John F. Sullivan, assistant town attorney, for the named defendant.
   Per Curiam.

The dispositive issues in this appeal are whether the trial court improperly (1) reviewed the defendant planning and zoning commission’s approval of the defendant Paul S. Wright’s applications for a special permit and for subdivision approval for the same parcel of land as one subdivision application rather than reviewing each approval separately pursuant to the regulations that governed each application, and (2) determined that the subdivision regulations were not met because rear lots are prohibited in a subdivision and one lot had no direct access to a public street, as required by the regulations.

The plaintiff, Dianne Lombardo, appealed to the Superior Court from the decisions of the planning and zoning commission of the town of Manchester granting Wright’s applications for a special permit and subdivision approval. The trial court sustained the appeals and Wright appealed to this court upon our granting of his petition for certification. We affirm the judgment of the trial court.

The following facts are necessary for the resolution of this appeal. On April 22,1992, Wright applied to the commission for a special permit to create a rear lot of approximately 5.30 acres from a 7.23 acre lot known as 175 Bolton Road. Wright simultaneously filed an application to subdivide the balance of the acreage into two front lots of approximately one acre each. The commission granted both applications, and the plaintiff timely appealed the decision on August 31, 1992. On September 28,1992, Wright filed two separate applications requesting the same approvals that he had previously received for a rear lot and a subdivision. These subsequent applications were apparently intended to correct irregularities in the original application that were raised by the plaintiff’s appeal. The application for a rear lot was granted on December 7, 1992, and the subdivision application was approved on January 4,1993. The plaintiff timely appealed from the commission’s granting of the two subsequent applications, and the trial court consolidated the three appeals.

The plaintiff asserted in the trial court that the commission’s approval of the applications was improper because they resulted in a subdivision that did not meet the requirements of the regulations. Wright argued that he had a right to create a rear lot first and thereafter to divide the resulting acreage into two front lots. The trial court agreed with the plaintiff, stating: “The record is clear that Wright sought in his simultaneous applications and site plan to divide his property into three lots and that the commission failed to require him to comply with the subdivision regulations which, on their face, applied to the creation of three lots from one parcel of land.”

We agree with the trial court’s resolution of all of the issues as set forth in its thorough and thoughtful memorandum of decision. Lombardo v. Planning & Zoning Commission, 43 Conn. Sup. 508, 663 A.2d 1128 (1994). The court’s memorandum of decision fully addresses the issues raised by the defendant in the present appeal. We, therefore, adopt its decision as a statement of the facts and applicable law on these issues. It would serve no useful purpose to repeat the discussion contained therein. See Greater Bridgeport Transit District v. State Board of Labor Relations, 232 Conn. 57, 64, 653 A.2d 151 (1995); Advanced Business Systems, Inc. v. Crystal, 231 Conn. 378, 381, 650 A.2d 540 (1994); Fromer v. Freedom of Information Commission, 36 Conn. App. 155, 158, 649 A.2d 540 (1994).

The judgments are affirmed.

       Wright and the planning and zoning commission of the town of Manchester were the defendants in the underlying action. Only Wright has appealed the trial court’s reversal of the commission’s granting of his applications.